Civil Rights, Immigration

Arizona must grant driver’s licenses to dreamers

(A version of this post first appeared at Latino Rebels.)

In a short order issued Wednesday, the U.S. Supreme Court denied Arizona’s last-ditch request to block issuance of driver’s licenses to undocumented students granted deportation relief under the Deferred Action for Childhood Arrivals (DACA) program.

This lawsuit has been moving through the courts for years. Shortly after DACA was announced in 2012, the administration of outgoing Gov. Jan Brewer issued an order prohibiting beneficiaries under DACA to obtain driver’s licenses, arguing the program’s work authorizations were not sufficient proof of legal status. A number of civil rights organizations joined forces to challenge the legality of Brewer’s order in federal court.

In July, the U.S. Court of Appeals for the Ninth Circuit, the federal appeals court with jurisdiction over Arizona, agreed with the civil rights organizations that Brewer’s policy was likely discriminatory towards undocumented youth. The court ordered the Arizona Motor Vehicle Division to treat the students as they would other noncitizens who can show employment authorization documents as proof of residency.

Dissatisfied with the decision, Arizona asked the same court for a rehearing, which was denied. Finally, Arizona asked the Supreme Court to halt the Ninth Circuit’s ruling. The high court denied that request on Wednesday.

Interestingly, three justices—Antonin Scalia, Samuel Alito, and Clarence Thomas—would have temporarily granted Arizona’s request to halt driver’s licenses. The same justices dissented in the 2012 case Arizona v. United States, which struck down important parts of SB1070, Arizona’s infamous show-me-your-papers law.

The case is not over: Arizona only requested a halt to the order forcing the state to accept DREAMers’ papers for purposes of driver’s licenses. The case is technically still “live” in the lower courts, which means there hasn’t been a definitive pronouncement that Brewer’s policy is unconstitutional.

But given the July ruling and today’s move by the Supreme Court, it’s likely Arizona will seek a settlement with the plaintiffs, unless Gov.-elect Doug Ducey, who has faced pressure to discontinue the policy, continues defending the lawsuit. According to AZcentral.com, Arizona is one of two states preventing so-called DREAMers from obtaining driver’s licenses.

Arizona’s loss before the Supreme Court arrives a day after U.S. District Judge Arthur J. Schwab, a George W. Bush appointee who sits in Pennsylvania, struck down President Obama’s executive action on immigration, which is set to expand the original DACA program to include parents of U.S. citizens and permanent residents, among other provisions.

The ruling, which arrived less than a month since the president’s announcement, has been sharply criticized by legal scholars and commentators. Orin Kerr, a law professor at George Washington University, called the decision “exceedingly strange.”

In a statement reported by The Huffington Post, a Justice Department spokesperson called the Schwab’s decision “unfounded” and noted that an appropriate response was forthcoming.

Other challenges to Obama’s immigration order, from Arizona sheriff Joe Arpaio and a group of more than a dozen conservative governors led by Texas Gov.-elect Greg Abbott, have been initiated in federal courts in Washington, D.C., and Texas.

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Civil Rights, Supreme Court

Sotomayor on surveillance: Ahead of the curve

The Wall Street Journal’Law Blog and other outlets made news of a recent appearance by Justice Sonia Sotomayor at the Oklahoma City University School of Law.

Her remarks covered an array of subjects, but the comment grabbing headlines had to do with drones and surveillance technology.

Here’s an excerpt:

There are drones flying over the air randomly that are recording everything that’s happening on what we consider our private property. That type of technology has to stimulate us to think about what is it that we cherish in privacy and how far we want to protect it and from whom. Because people think that it should be protected just against government intrusion, but I don’t like the fact that someone I don’t know . . . can pick up, if they’re a private citizen, one of these drones and fly it over my property.

Sotomayor noted some of these technological advances were “frightening” and that, if left unchecked, they could reach “Orwellian” levels. She called for more involvement from the public in debates surrounding privacy—suggesting perhaps that major reforms are needed.

None of this is a new concern for Sotomayor. Even before the Edward Snowden disclosures revealed the extent to which the National Security Agency amasses data from average Americans, the justice had expressed skepticism at the reach of technology in the hands of government.

In United States v. Jones, a 2012 case dealing with GPS surveillance, Sotomayor wrote at length about her reservations with the technology, and how it could be used for way more than merely tracking a person or his motor vehicle.

“GPS monitoring generates a precise, comprehensive record of a person’s public movements,” she wrote, in a way “that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”

This statement matters because Jones only dealt with GPS tracking under the Fourth Amendment, the usual vehicle for constitutional discussions surrounding privacy. (The Supreme Court later quoted this language word for word in Riley v. California, its landmark ruling on cellphone searches earlier this summer.)

But to Sotomayor, the knowledge that the state “may be watching” could have a chilling effect on other spheres protected by the Constitution, like the people we associate with and our expressive conduct. She portended that the invasion of those areas with “unfettered discretion” may forever change the dynamic “between citizen and government in a way that is inimical to democratic society.”

All of this was pre-Snowden, pre-Glenn Greenwald, and pre-outrage about the NSA, secret courts, and the so-called surveillance state.  Sotomayor’s new remarks on drones touch on something deeper: how our privacy relates with private actors. The Facebooks. The Googles. The many service providers who offer free stuff in exchange for a glimpse into a person’s private life.

The Constitution is of no help with any of that. Neither does it protect against other people’s drones flying over your property. But it can curb government surveillance.

This may explain why Sotomayor used Jones to suggest a new way of looking at privacy under the law—one that, at the very least, puts a check on government authorities. The standard: “a reasonable societal expectation of privacy in the sum of one’s public movements.” Under this view, Sotomayor would examine “whether people reasonably expect that their movements will be recorded and aggregated in a manner” that allows the government to piece together a profile of virtually any citizen it wants.

Scholars call this a “mosaic theory”—or whether it’s reasonable for the government to paint a portrait of a person based on bits and pieces of data collected over a period of time. If it isn’t, it’s illegal, and the government needs a warrant.

But the mosaic theory is just a theory; it’s not the law in matters of privacy. The Supreme Court has yet rule whether such bulk collection of personal data is a “search” subject to rigorous constitutional protections. And if it does, which is likely, it will be a major constitutional breakthrough.

Lower courts have begun to grapple with that very question. Earlier this month, a Manhattan appeals court heard arguments from the ACLU and the federal government in a lawsuit seeking to invalidate the NSA’s mass call-tracking program. A sister court in Washington, D.C., is set to hear similar arguments in a separate suit in November.

However those courts come out will determine whether the Supreme Court gets involved. And if things get to that point, it will take Sotomayor and at least four of her colleagues to give us an idea of whether the Constitution and society tolerate mass surveillance, drones, and the brave new world those things represent.

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Other Legal Battles, Supreme Court

Jesus and Hobby Lobby

If I had argued the Hobby Lobby case before the U.S. Supreme Court back in March, my opening statement would’ve gone something like this: “This case is about God and money, and how Jesus said that you cannot serve both.”

Or maybe like this: “This case is about Christians and government, and how believers are called by their Master to give Caesar what is Caesar’s, and God what is God’s.”

This one’s good, too: “This case is about Jesus and women, and how he elevated their status in a patriarchal society that viewed them as second-class citizens.”

I can probably think of others.

Not sure how the justices would’ve reacted to any of those openers, but the court’s controversial decision in Burwell v. Hobby Lobby—ruling that a closely held corporation can have deeply held beliefs and deny contraceptive coverage based on those beliefs—made me think about what Jesus would have made of the debacle. Wasn’t this a win for religious liberty after all?

The Supreme Court doesn’t shy away from the subject. Just this past term, in Town of Greece v. Holloway, it sided with a New York town in upholding its practice to open its townhall meetings with prayer—a custom the court ruled consistent with American tradition and not at odds with the First Amendment.

That ruling, widely praised by evangelicals, too made me think of its implications for religious liberty. For many—for me—religion is something deeply personal and sacred, reserved for moments of devotion or the sanctuary. But Town of Greece was a sweeping decision, reaffirming the notion held by some of America as a “Christian nation.”

So, W.W.J.D.?

The biblical record offers some clues. Jesus was big on prayer, but a minimalist about it. The Lord’s prayer is about 70 words long. The Gospels have no record of him praying on government premises. In the face of Pontius Pilate—one of the few times he stepped on government property—he barely mustered a word. He preferred quiet prayer, in the wee hours of the morning, all by himself. In a parable denouncing self-righteousness, he took issue with religious leaders who prayed pompously, within earshot of those they viewed as less-than-holy.

The narratives that have emerged from the Hobby Lobby ruling—religious liberty, the rights of women vis-à-vis faith-based corporations—are also curious in light of what Christ stood for, or didn’t stand for.

Laying aside whether Christ would’ve cheered the outcome of a Roman tribunal—Hobby Lobby is being hailed as a major victory by Christians—Christ had little interest in advancing political agendas or mounting challenges to the imperial regime. When asked whether it was right to pay taxes to the Roman emperor, he minced no words: “Give to Caesar what is Caesar’s, and to God what is God’s.” (The Pharisees, who depended largely on the charity of their Jewish parishioners for sustenance, were not pleased.)

The profit-growing corporate structure hadn’t been conceived at the time, but that didn’t keep Christ from talking about money. A lot.

A young, rich man had the letdown of his life when Jesus told him that the “one thing” he lacked to inherit the Kingdom was to sell all his possessions, give the proceeds to the poor, and follow him. After the episode, Christ famously said: “It is easier for a camel to go through the eye of a needle than for someone who is rich to enter the kingdom of God.” In Christ’s economy, love of God and mammon couldn’t coexist. Years later, the apostle Paul would write to his friend Timothy that “the love of money is the root of all kinds of evil”—another popular adage.

But it wasn’t money in the abstract that Jesus took issue with, but the accumulation of it. He’d much rather his followers “store up treasures in heaven” than on earth, where it holds a corruptible power. When merchants and money changers set up shop in the temple, Jesus wouldn’t have any of it; he turned over tables in anger.

And Christ was a feminist par excellence. Perhaps not the kind that would show at pro-choice rallies. But he was unafraid to look women in the eye, have a conversation with them, and remind them of the value that centuries of paternalism took away from them. That included his mother. His friends Mary and Martha. The Samaritan woman at the well. The woman who touched the hem of his robe. The mothers of the many children he healed. He shunned not one of them. He treated them all with dignity. Religious leaders wanted the death penalty for an adulteress “caught” in the act—curiously, her co-defendant was nowhere to be found—but Christ issued no condemnation. Not one stone was cast.

All of this came to mind as Christians rallied around Hobby Lobby and its owners, entrenching themselves deeper in a culture war with government, federal law, and women in need of contraceptive access.

Probably none of these points were raised in the court filings leading up to the Supreme Court’s pronouncement, or would have mattered much to the justices. But they should at least give people of faith reason to pause and ponder. Is this warfare what Christ had in mind when he called them the “salt of the Earth” and the “light of the world”?

Because embracing religious liberty is one thing. Taking Caesar to court over it is quite another.

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Civil Rights, New York

New chief of police, one big challenge

With the announcement that Bill Bratton will succeed Ray Kelly in heading the New York City Police Department, Mayor-elect Bill de Blasio sent out a clear message: stop-and-frisk will continue.

In fact, many observers have already questioned whether Bratton is up to the task of what de Blasio promised on the campaign trail. But that’s not a reason to worry. At least not yet.

Stop-and-frisk has been legal in the United States since 1968, when the Supreme Court green-lighted it in the case Terry v. Ohio.

The decision was controversial because it was the first time that the high court allowed a lower standard than what the Fourth Amendment to the Constitution allows. Before Terry, all stops required probable cause, or enough circumstances to lead a police officer to the conclusion that a person was committing or had committed a crime. With Terry everything changed: now police only needed “reasonable suspicion,” a lesser requirement. And more ambiguous, too, because what’s reasonable for an officer may not be reasonable for another.

The Supreme Court knew that it was entering dangerous territory in legalizing stop-and-frisk. Earl Warren, the chief justice at the time—and former prosecutor and the author of a series of landmark criminal justice decisions—often made reference to the “resentment” that such detentions and searches elicited in minorities, the vast majority blacks.

Chief Justice Warren’s worry was evident. In his ruling, he ended up calling stop-and-frisk “a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment,” and that it was “not to be undertaken lightly.”

The words are almost prophetic, because it is precisely the levity with which the NYPD has conducted stops and frisks of blacks and Latinos that has ignited furor—leading up to several federal lawsuits, social mobilization, and a political campaign that positioned Bill de Blasio as the city’s new mayor.

But none of that ends the resentment. The implicit legacy of stop-and-frisk is a generation of youth that doesn’t trust the police, feels unprotected, and has lost faith in public institutions and their representatives.

A study published by the Vera Institute of Justice revealed interesting perspectives from about 500 New York City youths about their experiences with stop-and-frisk. The majority of them agreed that their neighborhoods don’t trust the police, that they wouldn’t feel comfortable reporting a crime, or that they wouldn’t feel comfortable asking for help, even if they were the victims. In other words: insecure youth in a city that boasts about its safety.

That’s why Bill Bratton’s biggest challenge goes beyond what he decides to do with stop-and-frisk. Reverting how youth feel about the police is not achieved by simply reducing the number of stops; this is not a numbers game. (Numbers which, by the way, have decreased dramatically.)

Change is possible by forging bonds with communities, making them actors in the fight against crime. Change is possible by way of mutual respect and equal treatment. It’s possible by safeguarding the spirit of Terry, reminding the police that a person’s bodily integrity is sacred. It’s possible by reminding officers time and again that, under the law, no single person is more or less suspicious because of the color of their skin or the way they dress. That’s the least the Constitution requires of us.

Bratton has already had great success in New York and Los Angeles. This is his opportunity to do it again.

(A version of this column was originally published in Spanish in the print and online editions of New York’s El Diario.)

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