[Cross-posted from Learnconlaw.com]

By Elizabeth Joh

On episode 59 of the podcast formerly known as What Trump Can Teach Us About Con Law, renamed What Roman Mars Can Learn About Con Law:   Supreme Court cases from Mississippi and Texas are challenging  long upheld precedents that established abortion rights. Reproductive rights, and many others, are not explicitly referenced in the Constitution, but are considered fundamental because of the presence of the word "liberty" in the 14th Amendment. Listen to the episode.

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

It is the end of a wild pandemic year.  And time for our annual Top 10 Immigration Law Stories.  As you might recall, President Donald Trump, who frequently made immigration news, topped the 2020 list.

The year has seen many changes.  Joe Biden became President.  President Trump, and his fervent dedication to a restrictive immigration agenda, now is in the rear-view mirror.  Despite repeated efforts by Democrats, any type of meaningful immigration reform failed in Congress.  Reminiscent of the old adage "three strikes and you're out," the Senate Parliamentarian on three occasions ruled out efforts to squeeze in immigration changes into budget reconciliations.

1.  President Biden Brings in a New Immigration Regime

In January, President Biden brought to Washington D.C. a new approach to immigration and immigration enforcement.  Nonetheless, a variety of Trump policies, such as the much-maligned "Remain in Mexico" policy, remained in effect.  Its survival led to an op/ed by Ruben Navarrette Jr. entitled "Trump Lost the Presidential Battle but Won the Immigration War?," which to many raised a very good question. 

The Biden administration also continued the Title 42 border closure justified by public health concerns, a move  that has been harshly criticized.  Former Yale Law Dean Harold Koh left the State Department and ripped President Biden's use of Trump-era Title 42.

Events on the United States' southern border almost immediately put the Biden administration on the defense.  On her first visit as Vice President to Guatemala, Kamala Harris expressed optimism about cooperation with the Guatemalan government on reducing migration to the United States but bluntly told the Guatemalans considering the journey:  "Do not come.  Do not come."  This blunt message provoked controversy and criticism.

With challenges from the left and right, the Biden administration has a tough row to hoe in formulating a coherent and effective immigration policy.

The Biden administration made important changes in the top officials making U.S. immigration policy decisions.  New Attorney General Merrick Garland has a very different perspective on immigration and immigrants than President Trump's first AG, Jeff Sessions.  Alejandro Mayorkas, the new Secretary of the Department of Homeland Security, is very different from John Kelly and Kirstjen M. Nielsen, DHS secretaries in the Trump administration.

2.  The Shocking Treatment of Haitian Asylum Seekers by the U.S. Government

In August, an earthquake devastated Haiti.  Thousands of Haitians fled the country.  The sight of Border Patrol officers on horseback chasing Haitians on the U.S./Mexico border was, to say the least, "bad optics."  It provoked controversy and a spirited defense from the Biden administration. 

Human Rights Watch condemned the treatment of Haitian migrants on the U.S./Mexico border.  This headline says it all:  "US: Treatment of Haitian Migrants Discriminatory -- Chased by Border Agents on Horseback; Returned to Danger in Haiti."

3.  The Afghan Refugee Crisis

A refugee crisis followed the U.S. military's withdrawal in August from Afghanistan and the almost immediate takeover by the Taliban.  The United States has a long and difficult relationship with this war-torn nation.  Many wondered how the nation might respond to Afghan refugees.

There have been many calls to help Afghan refugees. A number of governmental and nongovernmental (including faith-based) groups publicly offered assistance to the refugees.  Nonetheless, resettlement in the United States has been challenging.

ImmigrationProf posted regularly about the plight of Afghan refugees.  One of those posts highlights the complex immigration avenues in the United States -- including Special Immigrant Visas, refugee status, and asylum -- for persons fleeing Afghanistan.  "The tens of thousands of Afghan refugees who made it to the United States as part of a historic humanitarian evacuation are entering an extraordinary system with very different benefits."

4.  Immigration in the Supreme Court

In the 2020 Term, the Supreme Court decided five immigration cases.  The U.S. government prevailed in four of the five cases, an 80 percent success rate.  This rate was higher than that seen in recent Terms. 

There were no blockbusters among the five immigration decisions -- nothing like the DACA decision in 2020.  The decisions primarily focused on interpreting the complexities of the Immigration and Nationality Act. 

Although the U.S. government prevailed in all but one case, there were no sweeping statements about the power of the U.S. government over immigration, such as the statements in the 2020 expedited removal case (Department of Homeland Security v. Thuraissigiam) and its ringing endorsement of the plenary power doctrine.  

There continued to be a steady stream of immigration rulings in the lower courts, especially as the Biden administration sought to walk back Trump era policies.  Two lower court decisions stand out.   

In one case, a U.S. District Court found  "strong and disconcerting evidence" of the racist origins of 8 U.S.C. § 1326, which criminalizes unlawful re-entry into the United States.  Judge Michael H. Simon's opinion carefully reviewed the historical record of the racial animus behind Section 1326.

In another case, Chief Judge Miranda M. Du of the U.S. District Court, District of Nevada ruled that:

"Carrillo-Lopez has demonstrated that Section 1326 disparately impacts Latinx people and that the statute was motivated, at least in part, by discriminatory intent . . .  [T]he Court reviews whether the government has shown that Section 1326 would have been enacted absent discriminatory intent. Because the government fails to so demonstrate, the Court finds its burden has not been met and that, consequently, Section 1326 violates the Equal Protection Clause of the Fifth Amendment."

It is rare for a law to be found unconstitutional.  It is even rarer for an immigration law to be found unconstitutional.  Will these two rulings start a trend? 

5.  DOJ Reverses Course and Agrees to Recognize Immigration Judges Union

Earlier this mnnth, the Department of Justice's Executive Office for Immigration Review agreed to a settlement with the National Association of Immigration Judges (NAIJ) to again recognize NAIJ as the exclusive representative and collective bargaining agent for the nation's immigration judges.  The settlement put an end to the Trump administration's effort to end the union's representation of the immigration judges.

Before the settlement, the Biden administration has been accused of "doubling down" on the Trump administration's efforts to de-certify the immigration judges union.

6.  Economist with Major Immigration Contributions Wins Nobel Prize

UC Berkeley economist David Card, who studied the effects of the Mariel Boatlift on the Miami labor market, won the Nobel Prize.  Card wrote the 1990 article: The Impact of the Mariel Boatlift on the Miami Labor Market.  In that article, 

"Card studied the effect that the large influx of Cuban workers (125,000 arrived between May and September of 1980) had on the Miami labor market. He found that the labor force grew by 7%, with a greater increase in less-skilled occupations and industries. But he found no effect on the wages or unemployment rates of non-Cuban workers nor non-boatlift Cuban workers. There was, in fact, 'rapid absorption' of the Mariel immigrants into the Miami

workforce."

Card's cutting-edge scholarship is a briefly summarized here.

7.  Death on the Border Continues

Sadly, the regular deaths along the U.S./Mexico border are not breaking news.  But they are a reality of modern immigration enforcement along the border. 

Migrants die on a regular basis and the death toll has risen over the years.  ImmigrationProf regularly reports on the deaths to remind readers of the deadly impacts of U.S. immigration enforcement.  Shouldn't the nation be considering alternative enforcement strategies that do not result in deaths?

8.  The Complicated Legacy of 9/11:  20 Years After

2021 marked the 20 year anniversary of the tragic events of  September 11, 2001.  News reports reminded us of the implications of that fateful day.  Importantly, serious discussions of immigration reform designed to remedy the harsh edges of the 1996 reforms, ended with that tragic event.

In "How 9/11 stalled immigration reform - and inspired a new generation of activists," Meena Venkataramanan for the Los Angeles Times offers an interesting -- and more positive -- take on a collateral impact of September 11, 2001:

"The Sept. 11 attacks upended U.S. immigration policy, linking it for the first time to the nation's anti-terrorism strategy and paving the way for two decades of restrictive laws. But it also gave rise to a new kind of immigrant rights movement led by young people . . . . "

The immigrant rights movement has continued to grow and is one of the amazing social movements of the 21st century and hold the promise of immigration reform.

9.  Census 2020

The Trump administration's proposed citizenship question, which it abandoned after a Supreme Court ruling against the administration, on Census 2020 provoked controversy and concern with an undercount.  Although some noncitizens may have been too fearful to respond to the Census, The Census revealed some interesting things,  CNN reads the data as follows:  "America is more diverse and more multiracial than ever before, according to new 2020 Census data . . . ." (bold added).

10.  10 Most-Cited Immigration Law Faculty in the U.S., 2016-2020  

This, I believe, was the first Leiter Law Report citation court of immigration scholars.  "Based on the latest Sisk data, here are the ten most-cited law faculty working on immigration law . . . in the U.S. for the period 2016-2020 (inclusive) . . . ."

HONORABLE MENTION

1.  A Surprising Immigration Factoid (At Least to Me)

I would not have guessed that, at least for a moment, Honduras was the largest source of migrants to the United States.  Conditions in Honduras have fueled greater migration to the United States so that the number of migrants from Honduras currently exceed those from El Salvador, Guatemala, and Mexico. 

2.  Belarus Uses a Border Crisis as a Political Weapon

Sadly, we cannot make this stuff up.  

In November,  CNN reported that thousands of people trapped on the border between Poland and Belarus were being stopped from crossing the border into Poland.  The European Union, the United States and NATO accused Belarusian leader Alexander Lukashenko of manufacturing the migrant crisis as retribution for sanctions imposed on Belarus over human rights abuses. Stranded migrants have faced "catastrophic" conditions in freezing forests and makeshift camps.

3.  DACA Recipient Heads Georgetown Law Journal

Here is a positive immigration story.  Deferred Action for Childhood Arrivals (DACA) recipient Agnes Lee, was named the editor-in-chief of the Georgetown Law Journal.  NBC News reported that.  "Growing up in Los Angeles, [Lee] saw many in her community incarcerated for petty drug charges. Several of her friends' family members were deported. . . . [She] learned from her parents to fear the police and remain quiet . . . . 'The best thing you could do with the law was to stay away from it,' she said."

4.  Immigrant of the Day Leads Milwaukee Bucks to NBA Championship

Two time Immigrant of the Day, National Basketball Association superstar Giannis Antetokounmpo (Milwaukee Bucks) became an NBA champion!

5.  Law Faculty News

RIP Cruz Reynoso, first Latino Justice on California Supreme Court.  A Professor Emeritus at UC Davis, Justice Reynoso devoted his life to defending the rights of immigrants and other vulnerable communities.  In an amazing career, Reynoso was appointed by President Carter to serve on the Congressional  Select Commission on Immigrant and Refugee Policy.  President Clinton appointed Cruz to be the vice-chair of the U.S. Commission of Civil Rights and, in 2000, gave Cruz the Presidential Medal of Freedom for his social justice work.

Professor (and former Dean) John Eastman has long been known for taking dubious immigration positions, including questioning Kamala Harris eligibility to be President,  arguing that birthright citizenship was not required by the U.S. Constitution, and more.  In 2021, Eastman entered the national spotlight in a big way.  He spoke to Trump supporters just before they stormed the U.S. Capitol.  The mob included many white supremacists.  The New York Times reported that Eastman was in the Oval Office with President Donald Trump the day before the Capitol violence, arguing that Vice President Mike Pence had the power to block certification of Joe Biden's Electoral College victory.  Later, CNN  published a copy of the "Eastman Memo" advising President Trump's legal team on a strategy to overturn the election results. 

Eastman retired from his law professor position at Chapman in the middle of the academic year.

Eastman has filed suit to protect his phone records from discovery by Congress.  He also is the subject of a new complaint with the California State Bar signed by nearly 1,000 lawyers.  The complaint alleges Eastman was working in concert with Rudy Giuliani and Jeffrey Clark to overturn the 2020 election results. Attorneys who signed the complaint include Erwin Chemerinsky, Laurence Tribe and two former presidents of the American Bar Association.

Book of the Year

The ImmigrationProf Book of the Year is Driving While Brown:  Sheriff Joe Arpaio versus the Latino Resistance by Terry Greene Sterling & Jude Joffe-Block. 

Remember Sheriff Joe?  The book describes his immigration reign of terror on Latina/os in Arizona.   Until he lost a re-election bid in 2016, Sheriff Joe gave me an almost daily story for this blog.    The new book brings back memories.

The book specifically tells the story of

"How Latino activists brought down powerful Arizona sheriff Joe Arpaio

Journalists Terry Greene Sterling and Jude Joffe-Block spent years chronicling the human consequences of Sheriff Joe Arpaio's relentless immigration enforcement in Maricopa County, Arizona. In Driving While Brown, they tell the tale of two opposing movements that redefined Arizona's political landscape-the restrictionist cause embraced by Arpaio and the Latino-led resistance that rose up against it."

Jude Joffe-Block guest blogged about the book on this blog.

Honorable Mentions

These two great books are important scholarly contributions.

Mae Ngai, The Chinese Question: The Gold Rushes and Global Politics (2021).  She has been speaking widely on this important book.

Sahar F. Aziz, The Racial Muslim: When Racism Quashes Religious Freedom (2021).  Here is the University of California Press description of the book:

"Why does a country with religious liberty enmeshed in its legal and social structures produce such overt prejudice and discrimination against Muslims? Sahar Aziz's groundbreaking book demonstrates how race and religion intersect to create what she calls The Racial Muslim. Comparing discrimination against immigrant Muslims with that of Jews, Catholics, Mormons, and African American Muslims during the twentieth century, Aziz explores the gap between America's aspiration for and fulfillment of religious freedom. With America's demographics rapidly changing from a majority white Protestant nation to a multiracial, multi-religious society, this book is an essential read for understanding how our past continues to shape our present-to the detriment of our nation's future."

[Cross-posted from the San Francisco Chronicle]

By Christopher S. Elmendorf and Tim Duncheon

In October, outrage erupted when San Francisco’s Board of Supervisors voted down a proposal to build nearly 500 new homes — many affordable — on a downtown site at 469 Stevenson St. now being used for valet parking.

Of course, these same supervisors reject housing developments all the time. And yet this denial was especially brazen.

It came short on the heels of a major Court of Appeal decision upholding the state’s powerful Housing Accountability Act, which requires cities to approve housing projects if a reasonable person could deem the project compliant with applicable standards. Yet the supervisors who voted “no” didn’t even try to argue that the project was noncompliant.

Instead, they attempted to evade the HAA by using a different law, the California Environmental Quality Act.

Technically, the board voted to reverse the city planning commission’s certification of the project’s environmental impact report—a report that took over two years to complete and certify in the first place. Board members demanded additional environmental studies, even as they openly admitted that their objections to the project — too big, not enough affordable units, risk of gentrification — had nothing to do with the environment. Oakland and Sonoma have also used similar CEQA maneuvers to hold up housing projects, too, albeit to much less fanfare.

The immediate question this raises is whether cities will be allowed to keep using CEQA to launder denials of housing that state law protects. Can bad-faith cities keep getting away with demanding round after round of ever more elaborate environmental studies, until developers cry uncle and walk away?

But there’s also a deeper question. Why is a housing project that a city can’t legally deny — because it is protected by state law — required to undergo an exhaustive environmental study in the first place?

CEQA requires local governments to carefully consider environmental concerns whenever they make discretionary decisions. For example, it requires cities to do environmental studies when they change their zoning ordinances.

San Francisco’s city charter subjects all development projects to “discretionary review,” making them all potentially subject to CEQA, even if they conform to zoning. But that doesn’t mean every single project in San Francisco is put through the wringer of a multiyear environmental impact report. A report is required only if the development may have a “significant impact” on the environment.

But significant relative to what?

The developer of the Stevenson Street project had to complete an environmental impact report because San Francisco’s Planning Department concluded (after its own yearlong, 342-page study) that the building might have a significant local environmental impact in the form of shadows, wind, or (during construction) noise and air pollution, relative to leaving the site as a parking lot.

This is nuts.

After all, this was a proposal to put dense housing a block from a BART station, in a designated “priority development area” under the region’s climate plan. Few projects could be more environmentally friendly.

Also, critically, California law doesn’t allow the city to retain the site as a parking lot once a developer applies to build housing there.

There was no reason to require an environmental impact report for the Stevenson Street project unless it would have a significant larger impact than any other project of the size that state law authorizes and encourages developers to build on the site. If the impact of the 500-home building the developer proposed would be about the same as the impact of any other 500-home building on the site, then requiring the developer to prepare an environmental impact report was a colossal waste of time (two years and counting) and money. In the midst of a worsening housing crisis.

It doesn’t have to be like this.

Under the federal statute on which CEQA was modeled, environmental review is limited to effects that are proximately caused by a government agency’s discretionary decisions. Because California law prohibits San Francisco from downsizing the Stevenson Street project, the project’s size isn’t caused by the city’s permitting discretion. And so the Stevenson Street project wouldn’t require environmental analysis.

Or consider New York, where if a developer proposes a 10-story development on a site where the zoning currently allows a five-story building, the effect of the larger project is analyzed relative to a smaller one the zoning allows.

The bottom line is that there’s an urgent need for fresh thinking about how to fit CEQA and the HAA together in a sensible way. Ideally, California’s Legislature would do it, with clarifying amendments to one or both laws. But achieving meaningful CEQA reform through the Legislature has proven to be a Sisyphean task due to the powerful interest groups — first and foremost the building trades unions — that have mastered the art of using CEQA litigation to hold developers hostage until the unions secure a side-deal, thereby making housing harder to build — and more expensive when it is built.

Action on this issue will require a full-court press by other actors: the courts, the Attorney General, and most importantly Gov. Newsom, who is riding high after crushing the recall attempt.

The governor has tools at his disposal to get the job done. He oversees the Department of Housing and Community Development, which is tasked with enforcing the HAA and other state housing laws. He also appoints the directors of the Natural Resources Agency and the Office of Planning and Research, who in turn issue the official CEQA Guidelines, which spell out the nitty-gritty of environmental review.

The governor’s housing department has launched an investigation of the 469 Stevenson St. debacle. A few days before Thanksgiving, the department delivered a strongly worded letter to San Francisco. This letter suggested that bad faith demands for superfluous environmental studies may violate the HAA. This interpretation — which is plausible but not open-and-shut — would greatly curtail CEQA-laundered project denials. And it’s an interpretation that courts are more likely to accept now that the executive branch of state government endorses it.

The letter is great, but it’s just a start.

CEQA guidelines must be revisited, too. They don’t even mention the HAA. Worse, they arguably call for full environmental impact reports even when a city has limited discretion over a project.

Stevenson St. is a case in point.

This is no way to run the show in a world where, as the HAA puts it, the lack of abundant infill housing is “undermining [California’s] environmental and climate objectives” by causing “urban sprawl, excessive commuting, and air quality deterioration.”

The housing shortage gets worse with each passing month that is wasted on irrelevant environmental review.

One of Newsom’s first official acts after trouncing the recall was to sign a spate of new housing bills. Next in line for the governor’s signature should be an executive order directing a revision of the CEQA Guidelines in light of the HAA. There’s no time to waste.

Christopher S. Elmendorf is a professor of law at UC Davis. Tim Duncheon is a lawyer based in San Francisco. Portions of this commentary were published on the State and Local Government Law Blog.