(Cross-posted from SCOTUSblog.)

By Kevin R. Johnson

With the new Trump administration, immigration has been in the national news. President Donald Trump and Attorney General Jeff Sessions have emphasized that the U.S. government will target "criminal aliens" in its removals. At various times, Trump has focused on crimes committed by Mexican immigrants. In the first of a number of immigration decisions from the 2016 term, the Supreme Court today decided its first crime-based removal decision in the new administration, Esquivel-Quintana v. Sessions. The case involved an immigrant from Mexico convicted of what could be viewed as a "sex crime." The decision in favor of the lawful permanent resident - written by Justice Clarence Thomas for a unanimous court (minus Justice Neil Gorsuch, who did not participate) - might be surprising to some observers.

The facts of the case are relatively simple. When Juan Esquivel-Quintana, a lawful permanent resident from Mexico, was 20 years old, he was convicted under California law for having consensual sex with his then-16-year-old girlfriend. An "aggravated felony" conviction generally requires mandatory removal of an immigrant from the United States and renders the immigrant ineligible for most forms of relief from removal. Section 1101(a)(43) of the Immigration and Nationality Act defines an "aggravated felony" to include the "sexual abuse of a minor." Claiming that Esquivel-Quintana's conviction constituted an "aggravated felony," the U.S. government initiated removal proceedings against him, and the immigration court ordered him removed from the United States. The Board of Immigration Appeals dismissed his appeal from the removal order. Applying the Supreme Court's seminal 1984 decision in Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the U.S. Court of Appeals for the 6th Circuit deferred to the BIA's interpretation of "sexual abuse of a minor" and upheld the removal order. The dissent would have applied the rule of lenity, a judicial doctrine under which ambiguities in criminal law are resolved in favor of the defendant, to the interpretation of the criminal-removal provision in the immigration law and would have found that Esquivel-Quintana's conviction was not an aggravated felony.

As described by Thomas, the question before the court was "whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA." The court's answer was brief and straightforward: "We hold that it does not."

The court first reiterated the standard test for determining whether an immigrant's "conviction qualifies as an aggravated felony," as set forth in several recent cases:"[W]e 'employ a categorical approach by looking to the statute ... of conviction, rather than to the specific facts underlying the crime.'" Under the categorical approach, "we ask whether the state statute defining the crime of conviction categorically fits within the 'generic' federal definition of a corresponding aggravated felony." In other words, "we presume that the state conviction "rested upon ... the least of th[e] acts" criminalized by the statute, and then we determine whether that conduct would fall within the federal definition of the crime." Under that approach, Esquivel-Quintana's state conviction is "an 'aggravated felony' under the INA only if the least of the acts criminalized by the state statute falls within the generic federal definition of sexual abuse of a minor."

That was not the case here, the court concluded. After examining Section 1101(a)(43)(A) of the INA, Thomas observed that the statute's requirement that the sexual abuse be "of a minor" means that "the statute of conviction must prohibit certain sexual acts based at least in part on the age of the victim." The court pointed to statutory rape laws as a prime example of "this category of crimes," and relied on "reliable dictionaries" to define the "'generic'" age of consent in those laws as 16. The court rejected the "everyday understanding of 'sexual abuse of a minor'" offered by the government, which would have included activity involving victims up to the age of 18, pointing out that "the Government's definition turns the categorical approach on its head" by conditioning the crime on the particular laws of each state."

Moving to a consideration of the INA provisions surrounding Section 1101(a)(43)(A), the court emphasized that the statute's definition of "aggravated felony" includes murder and rape, and that the "structure of the INA therefore suggests that the sexual abuse of a minor encompasses only especially egregious felonies." According to the court, related federal statutes as well as state criminal codes also support the conclusion that "for a statutory rape offense to qualify as sexual abuse of a minor under the INA based solely on the age of the participants, the victim must be younger than 16." "Because the California statute at issue in this case does not categorically fall within that definition, a conviction pursuant to it is not an aggravated felony under §1101(a)(43)(A)."

By resolving the case on statutory grounds, the court avoided the more far-reaching questions raised by the majority and dissent in the court below. Thomas stated: "We have no need to resolve whether the rule of lenity or Chevron receives priority in this case because the statute, read in context, unambiguously forecloses the Board's interpretation. Therefore, neither the rule of lenity nor Chevron applies." A decision on either of those grounds would have had more far-reaching implications for immigration law than strict reliance on the interpretation of the statutory phrase "sexual abuse of a minor."

Esquivel-Quintana v. Sessions fits in neatly with the court's recent immigration decisions, such as Mellouli v. Lynch in 2015 and Moncrieffe v. Holder in 2013, which also applied ordinary modes of statutory interpretation to the immigration laws. In a series of crime-based removal decisions, the court has engaged in close parsing of the language of the statutory provisions in question. This approach is no different than that employed by the court in other cases. Although not breaking new ground today, the court continues to move forward in applying ordinary analytical approaches to immigration law, which historically had been in certain respects "exceptional" in the amount of deference given to the Board of Immigration Appeals. Immigrants have prevailed more often than not in the court's recent decisions as the U.S. government has pressed cases, like Esquivel-Quintana, which the court found to be unsupported by the immigration statute.

(Cross-posted from SCOCAblog.)

by Darien Shanske · May 26, 2017

The California constitution subjects tax increases proposed by a local government to vote at a general election, but does this requirement also apply to an initiative measure proposed by the people themselves? The particular provision of the California constitution at issue, Article XIIIC, section 2(b), added by Proposition 218 in 1996, does not indicate whether or not it also applies to initiative measures. The Court of Appeal decision[1] under review in this case found that this provision did not govern initiative measures. Therefore, under this reasoning, initiative measures do not need to be submitted to a vote at a general election.

Viewed from 20,000 feet, one can see there are two plausible ways to approach the absence of clear instruction as to whether initiative measures are covered by this provision. One might argue that there is a deep principle of California law that the people's power of initiative is to be jealously guarded[2] and thus the judgment of the Court of Appeal should be affirmed. On the other hand, one might argue that Proposition 218 was clearly intended to make it harder to raise taxes. And permitting votes on initiative measures to raise taxes at special elections would make it easier to raise taxes (at least assuming the limitations added by Proposition 218 are effective).

The (somewhat simplified) facts of this case seem to be as dry as the question presented, even though they involve cannabis. The California Cannabis Coalition wanted to place an initiative on the ballot at a special election. The measure arguably imposed a tax on medical marijuana dispensaries and so the City argued that the measure must be put on the ballot at a general election, per the state constitutional rule governing the imposition of taxes.

This case has been much written about in tax circles and drew multiple amicus briefs, almost all arguing that the special Proposition 218 rules should govern initiative measures. Among the amici making this argument are the strange bedfellows The California League of Cities and the California Taxpayer's Association. Indeed, the City is represented by the Howard Jarvis Taxpayer's Foundation. On the other side, the high-powered firm of Munger, Tolles & Olson wrote an amicus brief on behalf of the San Diego Chargers in support of the California Cannabis Coalition.

What then is really going on here? Proposition 218 does not just require that all measures imposing a tax be voted on at a general election. It also requires, crucially, a two-thirds supermajority for the passage of special taxes.[3] This is a high hurdle. If the strictures of Proposition 218 do not apply to initiative measures, then this is a way for the people to tax themselves with only a majority vote.  Imagine the residents of a so-called sanctuary city opting to increase their taxes to counter a loss of federal funds.

Given this broader context, it is easy to understand the interest of advocacy groups that are generally hostile to taxes. Apparently the cities are not happy about the Court of Appeal's ruling because they are worried about losing relative control; the cities will have their revenue measures limited by Proposition 218 but initiatives from the voters will not be so limited. And the Chargers, well, they are apparently interested in getting some help from the public in financing a new stadium and a lower threshold for a tax initiative measure would likely be very helpful.[4] That is, it will be easier to get a majority of San Diego residents to back a tax to help the Chargers, but much harder to get a supermajority.

As indicated, I think the text can be mustered to support either position. Furthermore, the legislative history of the ballot measure, such as it is, contains passages supporting both sides. Proposition 218 was certainly about limiting taxes, but also about limiting taxes by making sure that the voters-not just local politicians-get to vote on taxes. Therefore, the case will be decided on the basis of the background principles that the court brings to its analysis and in particular the importance of the power of the initiative.

It should be noted-though it was not by the Court of Appeal-that there is a California Supreme Court decision that is nearly exactly on point and dispositive. In 1978, Proposition 13 added the requirement that the legislature could only increase taxes with a supermajority.[5] The question then arose whether this requirement also applies to tax increases imposed by the voters. In Kennedy Wholesale,[6] the court acknowledged the broad language of that provision could also apply to initiative measures, but held the requirement did not apply to initiative measures, at least in significant part because of the background assumption about protecting the power of the initiative.[7] To be sure, this case can be distinguished on the basis of different text, different ballot history and even the difference between state and local taxation. But crafting such a distinction will be difficult. First, a different canon of interpretation imputes to the voters knowledge of the law, which would include Kennedy Wholesale. The canon is supposed to put the burden on the party seeking to change the law and thus the absence of any indication that Proposition 218 limits the power of initiative is a problem. Second, if there is an important distinction between state and local level fiscal rules, then this implicates many cases in which the courts have toggled between the two in deciphering California's fiscal constitution.

A final note about political economy. It is an empirical question how significant it would be if the California Supreme Court upheld the Court of Appeal, but there are a few points worth noting.

First, in a world in which the Court of Appeal is affirmed, there will still need to be elections about tax increases (there is an argument made by the appellants that local governments could collude with initiative proponents to get tax increases imposed without an election, but this is a red herring because local governments cannot impose taxes without a vote of the electorate). In other states with similar tax limitation measures, such as Missouri,[8] there is often just the requirement that tax increases be subject to a vote. The underlying political intuition seems to be that taxes are so inherently unpopular that forcing voters to focus on them is tantamount to limiting them. Consider what has happened at the state level since Kennedy Wholesale. The voters of California have indeed approved tax increases via a majority vote, but they have not done so often.

Second, it is true that upholding the Court of Appeal would create an asymmetry between the powers of the people and the powers of government officials. Leaving aside the possible merits of such an arrangement, it is worth noting that the California Supreme Court has already created a not-dissimilar asymmetry through its interpretation of Article XIIIC, section 3. As things currently stand, voters can reduce fees by initiative even after the government has gone through all the procedural requirements for imposing the fee that are mandated by Article XIIID, which was also added by Proposition 218.[9]

Third, it is already the case that general-purpose governments, namely cities and counties, can increase taxes with a majority vote.[10] It is also common practice for these governments to ask for non-binding guidance on how to spend the money that they raise from general tax increases.[11] Thus, it is not clear how much this decision would affect cities and counties.

Finally, the power of initiative is specifically authorized for only cities and counties in the California constitution,[12] and so this decision will have no immediate effect upon special districts, including school districts. That said, the power to impose taxes by initiative could be given to the electors of school districts.[13] Suppose that school district electors were so empowered and that tax increase measures could pass with a bare majority instead of a two-thirds supermajority, as is currently the case. But how much would this matter? School districts have had the ability to finance new capital projects through a 55% vote since 2000 (assuming certain conditions are met).[14] All of this is not to say that there would not be a significant impact should the Court of Appeal decision be affirmed-perhaps schools will find it easier to raise taxes for non-capital costs if current law were changed-only that matters should be kept in perspective.

[1] 245 Cal.App.4th 970.

[2] Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) at 250.

[3] Special taxes are defined in Article XIIIC, section 1(d) as "as any tax imposed for specific purposes, including a tax imposed for specific purposes, which is placed into a general fund." The two-thirds requirement is found in Article XIIIC, section 2(d).

[4] http://www.dailybulletin.com/general-news/20160721/how-the-fate-of-the-san-diego-chargers-could-hinge-on-uplands-marijuana-battle.

[5] Cal. Const. art. XIIIA, § 3.

[6] Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) at 248-49.

[7] Id. at 253.

[8] Mo. Const. art. X, § 22(a).

[9] Bighorn-Desert View Water Agency v. Verjil (2006).

[10] Cal. Const. art. XIIIA, § 2(b).

[11] Coleman v. County of Santa Clara (1998).

[12] Cal. Const. art. II, § 11.

[13] The electors of school districts can use the power of initiative to impose term limits on board members. See Cal. Educ. Code § 35107(c).

[14] Cal. Const. art. XIIIA, § 1(b)(3).

(Cross-posted from Balkinization)

Chris Elmendorf

I've been guest blogging for the past few weeks over at Concurring Opinions and invite you over to that blog, on "the law, the universe, and everything" to see what I've been writing.  I've done a four-installment review/commentary on J.D. Vance's Hillbilly Elegy:  A Memoir of a Family and Culture in Crisis.  Spoiler Alert:  I'm not a big fan but, in the end, suggest that the book can help law profs better understand the low-income white students who (thankfully, yes, thankfully!) show up in our classrooms from time to time.  My posts are:

On Donald Trump, J.D. Vance, and the White Working Class

Hillbilly Elegy as Rorschach Test

The "Shock and Awe" Response to Hillbilly Elegy:  Pondering the Role of Race

On Ree Dolly, J.D. Vance and Empathy for Low-Income Whites (or, What Hillbilly Elegy is Good for)

I've also done a bit of writing about rurality, with these posts:

Rurality and Government Retreat

Local Journalism as Antidote to Echo Chambers and Fake News

Also related to rurality are these posts about spatiality and abortion access. 

Did You Hear the One About the Alaska Legislator Who Said ... 

Sanger's Tour de Force on Abortion (with a Blind Spot for Geography)

Carol Sanger of Columbia Law responded to my post about her new book, About Abortion:  Terminating Pregnancy in the 21st Century, here.  I love the fact she says I get the "last word" in our exchange over the significance of geography.

I expect to post another item or two before my term as a guest blogger expires in about a week. 

(Cross-posted from Immigration Prof)

There are a number of immigrations cases currently before the Supreme Court (and here).  We should get decisions by the end of the Term in June and will should get a better idea of how the newest Supreme Court Justice, Neil Gorsuch, looks at immigration law.

The cases before the Court raise a variety of different types of issues.  The decisions could affect the direction of judicial review of the constitutionality of immigration laws and policies.  In recent years, as explained in this article, the Supreme Court has slowly but surely moved immigration law into the mainstream of American jurisprudence. 

The cases, which have been discussed regularly on this blog, include:

1.  Sessions v. Morales-Santana Argued November 2016.  Gender Distinctions in Derivative Citizenship.

Issue(s): (1) Whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so.    The Second Circuit, in an opinion by Judge Loheir, found that the gender distinction for citizenship was unconstitutional. 

The Supreme Court has been divided on the constitutionality of gender distinctions in the citizenship laws in previous cases.  See, e.g., Nguyen v. INS (2001); Miller v. Albright (1998).  This case allows the Court to reconsider the issue.

2.  Jennings v. Rodriquez Argued November 2016.  Constitutionality of Immigration Detention.

Issue(s): (1) Whether noncitizens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist noncitizens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for noncitizens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the noncitizen is entitled to release unless the government demonstrates by clear and convincing evidence that the noncitizen is a flight risk or a danger to the community, whether the length of the noncitizen’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months. 

The Ninth Circuit, in an opinion by Judge Kim McLane Wardlaw, affirmed the district court’s permanent injunction insofar as it required automatic bond hearings and required Immigration Judges to consider alternatives to detention.  The panel also held that immigration judges must consider the length of detention and provide bond hearings every six months for class members detained longer than twelve months, but rejected the class’s request for additional procedural requirements.

3.  Sessions v. Dimaya Argued January 2017.  Constitutionality of Criminal Removal Provisions.

Issue(s): Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an immigrant's removal from the United States, is unconstitutionally vague.  In a rare move, the Ninth Circuit, in an opinion by Judge Stephen Reinhardt, stuck down a statute including the reference "crime of violence" as unconstitutionally vague.   The Board of Immigration Appeals had found that  burglary was a "crime of violence" for removal purposes.  Dimaya was a lawful permanent resident from the Philippines who had lived in the United States since 1992. 

4.  Esquivel-Quintana v. Sessions  Argued February 2017.  Interpretation of "Sexual Abuse of Minor" for Removal.

Issue:  Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.

5.  Hernandez v. Mesa Argued February 2017.  Liability for Cross Border Shooting by Immigration Officer.

This case raises the following questions (1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents.

6.  Maslenjak v. United States Argued April 2017.  Impact of Misrepresentation for Purposes of Denaturalization. 

The denaturalization case raises the question whether the U.S. Court of Appeals for the 6th Circuit erred by holding, in direct conflict with the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.  Amy Howe in a preview to the argument on SCOTUSBlog concludes:

"The stakes in this case are high, not just for Divna Maslenjak but also for the millions of people who became naturalized U.S. citizens in recent years. Most of those naturalized citizens, of course, did not make false statements during the process of securing citizenship. But a ruling in the government’s favor could potentially expose many new citizens to the possibility of losing their right to live in the United States, even if their false statements did not necessarily influence the government’s decision to give them citizenship."

Maslenjak v. United States makes it six immigration cases before the Supreme Court this Term, a large number compared to the   immigration cases reviewed the last few Terms.

***

The Court will consider the six immigration cases against a backdrop of considerable public discussion -- and many legal challenges -- to President Trump's executive orders on immigration enforcement.    The role of the courts in reviewing the immigration actions of the President have been debated publicly over the last few months.

Stay tuned as we will see decisions in those cases, which involve crime-based removals, constitutional challenges to provisions of the Immigration and Nationality Act, a cross-border shooting, deference to agencies, and more.

Part of the reason that we see extreme measures in the immigration laws is the limited scope of constitutional rights of immigrants recognized by the Supreme Court. Historically, under the plenary power doctrine, noncitizens outside the United States have had few, if any, rights to enter the country. In contrast, noncitizens inside the country have seen the steady expansion over time of rights, especially to procedural due process.

Over the last fifty years, the Supreme Court has moved toward a more normal immigration jurisprudence and away from the plenary power doctrine. That trajectory has been marked by the use of ordinary methods of statutory interpretation in interpreting the immigration statute; the Supreme Court also has adhered to ordinary administrative deference doctrines in the review of immigration decisions. Moreover, the Court on a number of occasions has applied routine constitutional avoidance doctrines to avoid invoking the plenary power doctrine, which is out of synch with modern constitutional jurisprudence, and its harsh results. This pattern of avoiding the decision of constitutional questions in ensuring judicial review of immigration matters can be understood as an effort by the Court to avoid invoking the plenary power doctrine and its stark outcomes.

Commentators have observed the slow movement of immigration law toward the mainstream of constitutional jurisprudence. In essence, the plenary power doctrine is slowly but surely eroding away. In a number of cases, the Supreme Court effectively moved toward expanding the rights of noncitizens seeking admission into the United States.] Among other indications, in Kerry v. Din (2012), six Justices found that a State Department consular officer's denial of a visa was subject to rational basis review, which is a move away from the doctrine of consular non-reviewability.

One possibility is that, in the current cases before the Court, the decisions will move us toward a more unexceptional immigration law that is more consistent with general American constitutional law.

President Trump’s immigration initiatives push the envelope of contemporary constitutional norms, virtually daring the courts to address their constitutionality. By taking brash immigration policy measures that test constitutional limits, such as the travel ban and expanded expedited removal, the Trump administration ultimately may force the Supreme Court to reconsider the plenary power doctrine.Conclusion

The aggressive Trump immigration measures likely will continue to generate legal challenges centering on the rights of immigrants. Courts, which have been moving in a direction toward further recognition of immigrant rights for at least a generation, may intervene – as some have already – to curb some of the excesses of the Trump immigration initiatives. However, the long term solution to the problems of the modern immigration system is legislative reform of the immigration law. Deep and enduring reform of the comprehensive immigration statute forged in the Cold War is necessary for the nation to effectively and fairly address the immigration realties of the 21st century.

 In short, the coming weeks may tell us a good deal about the future of immigration law in the United States.  Stay tuned.

Maria Blanco of the UC Immigrant Legal Services Center (housed at UC Davis School of Law) is speaking at the 8^th Annual University of California International Migration Conference at UC Berkeley on May 13.

The topic is "Being Undocumented at UC in the Trump Era."

Find more information and registration details at haasinstitute.berkeley.edu/undocu2017.

This announcement from Oxford University Press:

Oxford University Press is happy to present the first paperback edition of the Oxford Commentaries on the State Constitutions of the US: The California State Constitution by Joseph R. Grodin, Darien Shanske, and Michael B. Salerno.

The California State Constitution provides an outstanding constitutional and historical account of the state's basic governing charter. In addition to an overview of California's constitutional history, it offers an in-depth, section-by-section analysis of the entire constitution, detailing the many significant changes that have been made since its initial drafting in 1849. This treatment, along with a table of cases, index, and the bibliography provides an unsurpassed reference guide for students, scholars, and practitioners of California's constitution.

The second edition updates and expands the previous edition published in 1993. The book provides new analysis, with citations to court decisions and relevant scholarly commentary, as well as accompanying explanations and a lengthy introduction to provide historical and thematic context. This new edition also contains a foreword by the current Chief Justice of California, Tani Cantil-Sakauye.