Constitutional Conflicts, Immigration

What you need to know about the big immigration hearing

(This article was originally published at Latino Rebels.)

Yesterday, a federal judge in Brownsville, Texas, heard arguments from 25 states and the federal government on whether to block President Obama’s executive order on immigration. Here’s what you need to know about Texas v. United States, the name the case has been assigned:

1) This Is Only the Beginning of the Lawsuit

The case before U.S. District Judge Andrew Hanen, a George W. Bush appointee, is still in its infancy stages. A trial, if one occurs at all, is still long ways away. But yesterday’s hearing was important because it could signal what could occur at trial. One of the questions Judge Hanen will be deciding is the states’ “likelihood of success on the merits”—that is, the likelihood that they actually have a winning case.

So far, that question is up in the air. Late last year, a federal judge in Washington, D.C. threw out a similar lawsuit by Arizona sheriff Joe Arpaio, noting in her decision that the sheriff likely could not win on his claim that the president acted unconstitutionally when he issued his new immigration directive. Part of yesterday’s hearing centered on this constitutional argument.

2) That said, the Judge Won’t Be Ruling on the Constitutionality of the Program

“This lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution,” the states argued in court documents. That’s the bottom line of the states’ lawsuit: they seek the invalidation of the program on constitutional grounds. But the court won’t be deciding the constitutionality of the program. At least not yet.

Though that question certainly reared its head in yesterday’s hearing, Hanen will only be deciding whether to grant a preliminary injunction, an extraordinary remedy that prevents the allegedly offending party from hurting the party that’s suing—here, the federal government and the several states, respectively. It’s similar to a restraining order, a temporary court order that forbids conduct while the court reaches a final decision on a matter.

But the Supreme Court has said that a preliminary injunction is an extraordinary measure—courts shouldn’t grant them lightly. Which is why yesterday’s hearing was a big deal. And the burden will be on Texas and the other states to make a clear showing that they’re entitled to an order that puts a stop to the program.

3) To Grant an Injunction, the Judge Will Rule on Whether the Executive Order Causes Harm.

A key dispute the judge will decide is whether President Obama’s immigration order somehow “injures” the suing states. But the federal government and the states are interested in this particular dispute for different reasons.

The Obama administration argues the executive order doesn’t harm the states at all and thus the lawsuit should be dismissed altogether—that the states lack “standing” to sue. The government contends that the new deferred-action policy doesn’t mandate the states to take any action; the states aren’t themselves targeted by it. And because the states are “neither prosecuted nor threatened with prosecution” as a result of the executive order, they’re essentially third parties without a stake in government’s policy choices regarding immigration. They have no business bringing this lawsuit.

The states, on the other hand, not only argue that the executive order does harm them, but that it also “irreparably” harms them—that it injures them so severely that the judge must order an injunction to stop the program from even taking effect. The states assert, among other things, that the immigration plan imposes huge administrative costs on them, that it will set off a new wave of illegal immigration leading to another “humanitarian crisis” in border states, and that beneficiaries will be eligible for state programs that they otherwise wouldn’t be eligible for.

4) Which Side Has the Better Case?

There is broad consensus that the president has the better argument. A number of legal scholars and immigration experts have come out in favor of the constitutionality of President Obama’s executive order, which finds its roots in existing immigration law and longstanding prosecutorial discretion—the president’s prerogative to enforce or not enforce the laws with respect to deportations. And because Congress is in charge of passing immigration laws—yesterday, the House of Representatives did just that—Judge Hanen may be disinclined to settle a dispute between co-elected branches.

The federal government also has some allies. A coalition of 12 states filed a legal document in support of the new policy, arguing that its effects are beneficial for local economies. And an alliance of police chiefs from major cities submitted court documents arguing that the president’s order helps to “to effectively police and protect the communities they serve.” The aim of both these groups is clearly to counter the states’ claims that the new immigration policy harms them.

Some opponents of the measure, such as libertarian think-tank Cato Institute, do not focus so much on the harm aspect—in fact, the group thinks it’s “good policy”—but merely argue that the president engaged in executive overreach. They contend, among other things, that Obama violated the Constitution by failing to “take care that the laws be faithfully executed” and enacting a policy that simply advanced his agenda. Cato maintains that the new immigration order is in direct conflict with the will of Congress as expressed in immigration laws currently on the books.

This is a point to watch—Obama has said on numerous occasions that he can only act within the parameters of the law. A finding that the immigration order actually violates federal law would indeed undermine the whole program. But Judge Hanen won’t be deciding that any time soon—he’ll only decide the likelihood that that might be the case.

5) What’s Next?

A small waiting period. Because Texas and the other states are only seeking temporary relief, an order from the judge granting or denying the injunction shouldn’t take long—at the hearing, Judge Hanen said he won’t rule until after Jan. 30. (The judge who ruled on Joe Arpaio’s case only took one day to rule.)

If the federal government wins, the injunction would be denied and the case would be dismissed; the repercussions, other than an appeal, would be minor. A win for the states, however, could potentially deal a huge blow to the Obama administration and immigration advocacy groups, which have been engaging in significant prep work ahead of the new program’s rollout. It could cause major disruption unless a higher court intervenes. Win or lose, there would probably be an appeal. And given the significance of the executive order on immigration, the case might even reach the Supreme Court—before it even goes to trial.

Whatever the outcome, yesterday’s hearing is only the beginning of a case that could potentially drag on for years, politicizing the issue of immigration further as the litigation advancess. Since there’s agreement that millions would benefit from the new executive order, the quicker the court makes a decision and eliminates uncertainty, the better.

Civil Rights, Criminal Justice

Ferguson’s glimmer of justice: Federal law

The failure by a St. Louis grand jury to indict officer Darren Wilson for the death of 18-year-old Michael Brown in Ferguson, Mo., means the quest for justice in state court is likely over.

Now the attention turns to the federal system, where Brown’s family—and Ferguson as a whole—still has a chance to achieve some measure of justice. But the odds are still long.

First is the possibility of a federal indictment against Wilson. Unlike the state case, a federal case won’t center on homicide charges, but on whether Wilson violated Brown’s civil rights. But the criminal civil rights statute isn’t just an average criminal law.

Conceived during the Reconstruction Era alongside other antidiscrimination laws, the statute was passed to protect the rights of blacks enshrined in the Fourteenth Amendment, which promised equality regardless of race. When enacted in the mid-1800s, the intent of Congress was to punish egregious, state-sponsored abuses of power against blacks—lynchings, mob killings, sham trials, unlawful arrests. It’s the same law under which the police officers involved in the Rodney King case were federally indicted.

In determining whether Wilson’s conduct rises to this level of abuse, a key inquiry for the Department of Justice will be whether the officer willfully deprived Brown of his civil rights. That in itself is a really hard case to make because proving “willfulness” requires federal authorities to essentially get inside Wilson’s mind. Did he shoot Brown and thus deprived him of his constitutional rights because he was black?

That’s a huge piece of evidence, and one that—short of a full confession—is extremely difficult to uncover. This explains why FBI has reportedly interviewed hundreds of witnesses, and Attorney General Eric Holder’s statement that “federal civil rights law imposes a high legal bar.” This investigation will remain ongoing for some time.

A second possibility is a private civil rights suit by Brown’s family against the City of Ferguson and Wilson. This kind of litigation—brought under Section 1983 of Title 42 of the United States Code—is very common in federal courts when police brutality or use of force are involved. Landmark civil-rights lawsuits against New York City—including stop-and-frisk, the Central Park Five case, and the wave of arrests following the 2004 Republican National Convention—were brought under Section 1983.

But these cases, too, are rife with complications. Not only is litigation long and protracted, but case law and courts have erected legal barriers—such as qualified immunity and other judge-made justifications—making it really hard for plaintiffs to hold municipalities and officers accountable. Just this year, the Supreme Court handed down two rulings on the same day shielding government officials from liability in the face of seemingly unconstitutional conduct against citizens.

Those potential setbacks aside, the biggest benefit of a civil lawsuit is allowing the Brown family to shape and present its case to a judge and a jury—in a public forum and in whatever manner they please. None of this was available in the criminal case handled by St. Louis authorities. At the very least, the likelihood of unfavorable press for Ferguson for a case that’s already attracted enough media scrutiny might be an incentive for the city to settle with the Brown family. Money will not atone for the death of Michael Brown, but it could signify a loss for a city that is yet to be held accountable.

Lastly, DOJ’s Civil Rights Division is still conducting a “pattern or practice” investigation into the Ferguson Police Department. This process, which could last more than two years, does not look at the Brown case in isolation, but examines in depth Ferguson’s policing practices—including standards for stops, searches, and arrests, racial profiling, handling of citizen complaints, and issues of diversity within the force. Broadly speaking, the inquiry is concerned with the city’s compliance with the Constitution and federal law.

More than prior administrations, Holder’s DOJ has been extremely active and successful in obtaining important consent decrees from law-breaking municipalities. These decrees are legally binding agreements where cities and localities agree to reduce dramatically incidents involving force, conduct further training, and improve community relations. DOJ closely monitors the progress of the offending police departments, and can sue in federal court in the event of noncompliance.

The above legal scenarios within the federal system will take time to yield results, but they offer a glimmer of justice in the wake of a grand-jury outcome that left many with a sense that justice was not served.