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March 3, 2014

A Roundtable on the 1965 Immigration Act

Last Friday, Professors Jack Chin and Rose Villazor organized a day-long roundtable discussion at UC Davis School of Law of chapters of their forthcoming book, "Legislating a New America," on the 50th Anniversary of the Immigration Act of 1965. The book is under contract with Cambridge University Press and scheduled for release in 2015. 


The Immigration Act, which came on the heels of the Civil Rights Act of 1964, represented a monumental change to U.S. immigration law and, among other reforms, eliminated a discriminatory quotas system. 

Presenters and commentators included:

Atticus Lee, UC Davis Law

Bill Ong Hong, UC Davis Law

Brian Soucek, UC Davis Law

Gabriel “Jack” Chin, UC Davis Law

Giovanni Peri, UC Davis Economics

Jeanette Money and Kristina Victor, UC Davis Political Science

Kevin Johnson, UC Davis Law

Leticia Saucedo, UC Davis Law

Pratheepan Gulasekaram, Santa Clara School of Law

Raquel Aldana, McGeorge School of Law

Robyn Rodriguez and Valerie Francisco, UC Davis Asian American Studies

Rose Cuison-Villazor, UC Davis Law

Sarah Song, UC Berkeley School of Law

I must say that I was energized by the provocative and innovative quality of all the papers.  The book project will be extremely interesting reading.

February 14, 2014

The Ninth Circuit, in SmithKline v. Abbott Labs, Bars Lawyers From Removing Gay/Lesbian Jurors: Part Two in a Two-Part Series

Co-authored with Alan Brownstein. Cross-posted from Justia's Verdict.

In Part One of this series, we began to analyze the recent decision from the federal Ninth Circuit Court of Appeals in SmithKline Beecham Corp. v. Abbott Laboratories. The three-judge panel there held that, in light of the Supreme Court's decision last summer in United States v. Windsor (invalidating the federal Defense of Marriage Act, DOMA), all government discrimination on the basis of sexual orientation is subject to "heightened scrutiny" under the Equal Protection Clause and that, accordingly, it violates the Constitution for lawyers to use peremptory challenges to strike would-be jurors on account of the juror's sexual orientation. (For background on the Abbott case and the general topic of peremptory challenges, readers may want to consult Part One.) In particular, we discussed whether the Ninth Circuit was right to read Windsor to have signaled a decision by the Supreme Court that intermediate level scrutiny governed DOMA, and that intermediate level scrutiny should also govern all other sexual-orientation-based discrimination.

The Abbott decision is already influencing litigation involving discrimination against gays and lesbians far beyond the issue of jury selection. Earlier this week, for example, as a result of the Abbott court's reasoning and holding, the Governor and Attorney General of Nevada announced that they would no longer defend the state's ban on same-sex marriages in federal court because the arguments supporting the ban were "no longer defensible." In the space below, however, we limit our analysis to the implications of Abbott for peremptory challenges generally and sexual-orientation-based peremptory challenges in particular.

Do Peremptory Challenges Threaten to "Exclude Entire Classes of Individuals?"

As one of us has noted in earlier writings, including a column posted here, courts have been reluctant to expand the list of juror attributes on which peremptories may not be exercised in part because of a concern over slippery slopes. If peremptories cannot be used on the basis of race, and gender and (now) sexual orientation, then what about disability, age, or alienage, etc.? While Judge Reinhardt's Ninth Circuit opinion in Abbott never really addresses this question directly, he implicitly suggests that limiting prohibitions on peremptories to only those groups that benefit from "heightened scrutiny" will arrest the slippery slope. In this regard, he analogizes to and quotes heavily from the cases the Court has handed down prohibiting race- and gender-based peremptories. He says, for example, drawing on the gender-based peremptory case, J.E.B. v. Alabama ex. rel. T.B., that "striking potential jurors on the basis of their gender harms 'the litigants, the community and the individual jurors' because it reinforces stereotypes and creates an appearance that the judicial system condones the exclusion of an entire class of individuals."

From one perspective, this kind of analysis is overblown particularly in cases like J.E.B. Peremptory challenges, even if used aggressively on the basis of gender, don't necessarily threaten to remove "an entire class of individuals" from juries, because both sides of a case get the same number of peremptories. If one side is removing women (as in J.E.B.), perhaps there is reason to believe the other side would be attempting to remove men. If these opposing uses of peremptories are equally effective, then there may be no reason to believe there would be fewer women on any particular jury, let alone across all juries.

The Special Case of Numerical Minorities, and Minorities Without a Natural Majority Counterpart

There are forceful responses to this suggestion, however, that may support Justice Reinhardt even though he doesn't really address this issue (or the nitty gritty of applying heightened scrutiny at all, for that matter.) First, the neutralizing effect of the opposing use of gender-based peremptories arises, if at all, only because men and women are roughly equal in number in most jurisdictions and (somewhat less so) in the draw of the would-be jurors and replacement jurors for any particular jury. But this neutralizing or offsetting effect is not present where the bases on which peremptories are exercised involve (numerical) minority and majority groups.

A simple numerical example may help drive the point home. Suppose a jurisdiction had a demographic makeup of 75% whites and 25% racial minorities. And suppose that the initial draw of twelve would-be jurors exactly mirrors these percentages-that is, nine whites and three non-white minorities are drawn. Suppose further that each side is given three peremptory strikes, and that each side uses its peremptories to aggressively remove people based on their white or minority race, respectively. So one side (perhaps the side of a Title VII minority plaintiff) uses its three strikes to remove three white would-be jurors, and the other side uses its three strikes to remove the three people of color who were initially drawn for the jury.

So now we are left with six whites, six slots to fill, and no peremptory challenges. Those six empty slots are then filled, and again, if we are assuming a draw that reflects the demographics of the larger pool, on average only 1.5 (or 25% of six) minority jurors would be selected, and 4.5 whites (75% of six) would join the group. The overall makeup of the jury after all is said and done would be 10.5 whites and 1.5 minority folks-half the number of minority persons who were initially drawn before each side was allowed to engage in a racial peremptory war. Because this scenario could repeat itself across many or most juries, allowing each side to use race to strike prospective jurors could very likely diminish minority jury participation writ large. This systemic effect is what makes the race-based peremptory-challenge cases easy to defend for those of us who care about inclusion and fair representation of the community on juries.

And what is true for race is also true for sexual orientation, insofar as gays and lesbians are, like persons of color, numerical minorities. Indeed, peremptory challenges, if allowed on the basis of sexual orientation, may be particularly likely to reduce participation of gays and lesbians on juries, writ large, because unlike race and gender, in the sexual orientation setting, it is less natural to think about "opposing" uses of peremptories. In the racial setting, if one side excludes blacks, the other may find it advantageous to remove whites. And the same is true for removing women and men. But even if one side tries to remove one or two would-be jurors because they are gay, the other side is less likely to think to remove other jurors because they are straight.

The problem here is that equal protection doctrine both legally and intuitively doesn't always operate with the kind of symmetry that the Court has developed in race and gender discrimination cases. In race and gender cases, the Court justified its application of heightened scrutiny initially by examining past discrimination against the class of racial minorities and women. Over time, however, the Court shifted its attention in these cases away from a suspect class and toward a suspect classification. The Court's focus was no longer on whether a law disadvantaged racial minorities or women, but rather on whether the challenged law employed a racial or gender classification.

But this shift from suspect class to suspect classification seems more counterintuitive when other equal protection cases are considered. Thus we think more about discrimination against aliens than we do citizenship classifications, more about discrimination against non-marital children than marital children classifications, and more about discrimination against gays and lesbians than sexual orientation classifications. Accordingly, it would hardly be surprising to discover that lawyers might not engage in any affirmative effort to identify and remove straights from a jury, generally speaking, the way they might identify and strike men, women, blacks, whites, and gays. So if sexual-orientation peremptories are permitted, then Judge Reinhardt's concern about the exclusion of an entire group must be taken seriously.

Implementing Abbott's equal protection ban on sexual-orientation-based peremptories might not be easy in practice, however. As Kathryne Young and others point out, unlike a person's race and sex, sexual orientation isn't obvious to an outside observer, so policing sexual orientation-based discrimination may raise distinctive problems. It is often difficult enough to prove that an attorney who is striking African-Americans or women is doing so because of their race or gender when the racial or gender identity of the stricken jurors is apparent. Objections to peremptory strikes based on sexual orientation may also involve placing some would-be jurors in the uncomfortable position of having to affirm or deny their membership in an LGBT group. The Ninth Circuit began to discuss these problems, but the implementation of this new rule will require more care and attention as it is applied in practice, which is often the case after cutting-edge constitutional decisions are rendered.

The Link Connecting Jury Service and Voting

Besides practical concerns, there is a more fundamental, theoretical objection to the constitutional doctrine developed by the Supreme Court and the lower courts in this area of law. That is whether the Equal Protection Clause is the appropriate prism through which to view the problem of juror exclusion in the first place. A different set of constitutional provisions, the provisions dealing with voting and other political rights, may provide a better foundation for helping courts to decide how skeptical to be about peremptory challenges. Jury service has traditionally been tied, and analogized, to voting, and this linkage makes sense: jurors, like individuals casting ballots for members of Congress or the President, exercise their power by voting for particular results; jurors implement policy when they decide cases, just as voters help shape policy by electing representatives or adopting initiatives. Indeed, until the later Twentieth Century, voting and jury service were considered "political rights" governed not so much by the Fourteenth Amendment, but more directly by the voting rights amendments, including the Fifteenth (which prohibits race discrimination in voting); the Nineteenth (which prohibits gender discrimination in voting); the Twenty-Fourth (which in effect prohibits wealth discrimination in voting), and the Twenty-Sixth (which prohibits age discrimination in voting.)

If we take the juror-as-voter analogy seriously, then removing people from juries becomes more problematic, because certainly we would not allow governmental actors (at least not since the Supreme Court decided important voting rights cases dating back to the 1960s) to prevent any would-be voter from participating in any particular election unless there were to be a compelling justification for doing so. This may partly explain why some Justices (most notably Justice Breyer) have, over the last few decades, been unmoved by the prospect of a slippery slope regarding peremptories, because these Justices think that the Court should reconsider whether any peremptory challenges can be constitutionally exercised.

But for those who are not yet ready to dispense with all peremptories, toeholds on the slippery slope are needed. One such toehold is hinted at in the analysis above-at the very least, the groups that receive textual protection in the Constitution from discrimination in voting (groups defined by race, gender, wealth and age in the voting rights amendments) should also be protected from discrimination in jury service. So far, the Supreme Court has embraced protection for the first three kinds of groups. Prospective jurors identified by race or gender are protected under explicit equal protection holdings, and jurors identified to some extent by economic class or status have been protected more ambiguously pursuant to the Court's general supervisory powers over the federal courts, The Court has not yet ruled on whether the fourth group, defined by age, should receive comparable protection.

On this analysis, peremptories that are used to exclude gay or lesbian persons wouldn't seem to implicate the voting rights amendments (unless we shoehorned sexual orientation discrimination into sex discrimination-an analysis with persuasive force in some circumstances, but not others.) But the political-rights paradigm (as distinguished from the equal protection framework) does help to explain why one group that is protected by equal protection doctrine from state-level discrimination-aliens-have no right to avoid exclusion from juries. Indeed, through most of modern American history, non-citizens have been ineligible to serve on juries (just as they have been ineligible to vote.) California has recently considered legislation that would allow non-citizens to serve on juries (and there would be no constitutional problem with such experimentation), but it is unlikely that courts will protect their access.

From this perspective, Judge Reinhardt's reasoning correctly recognizes that while the application of heightened scrutiny under the Equal Protection Clause to laws disadvantaging a particular class is certainly relevant to the review of peremptory challenges directed at class members, it cannot be a sufficient ground for holding that these challenges are unconstitutional. The alienage cases demonstrate that a class protected by heightened scrutiny review may still be excluded from jury service. Ultimately, it is necessary to return to our earlier points about what it is, exactly, that seems so problematic about certain kinds of peremptory challenges. Peremtory challenges directed at LGBT persons are problematic because they run a particularly high risk of eliminating a distinct set of voices from juries writ large. That is the kind of harm that requires a constitutional remedy.

Will the Supreme Court Review Abbott?

It is possible that the Ninth Circuit as a whole, en banc, will decide to review the three-judge panel's decision in Abbott. What about the Supreme Court? Shortly after Abbott came down, the thoughtful New York Times legal analyst Adam Liptak suggested there might be a split between Abbott and a case from the United States Court of Appeals for the Eighth Circuit, which opined that sexual orientation is not an invalid basis for peremptories, and that such a split may be of interest to the Supreme Court. We think the Court is unlikely to exercise its discretion to review Abbott for several reasons. For starters, there really is no split with the Eighth Circuit. The language in the Eighth Circuit case suggesting that sexual orientation is a permissible basis for peremptories was dicta, since the court in that case found that the lawyer did not base the peremptory in question on sexual orientation in the first place. Moreover, the Eighth Circuit case predates Windsor, so there is no split on the precise question Judge Reinhardt's opinion answered-whether Windsor fundamentally changed the constitutional standard of review regarding discrimination against gays and lesbians. . The Eighth Circuit hasn't weighed in on that question yet, so we don't know if the two circuits really disagree.

But even if another Circuit were to disagree with Abbott in the near future, we still would not expect the Supreme Court to grant review. The Court decided Windsor inscrutably (and dodged the merits altogether in Hollingsworth v. Perry, the California Proposition 8 case) because the Court wasn't ready yet to resolve the basic same-sex marriage question, let alone whether all sexual-orientation discrimination is problematic. Taking review in Abbott would require the Court to resolve the very kinds of questions it has been trying to avoid. Last year, the Justices, as a group, seemed to want to buy some time to allow political deliberation to move forward on gay rights issues, and one year is simply not long enough for that to happen. Even though things have changed a great deal of late (with many more states embracing same-sex marriage), the times are still changing. Until the landscape begins to settle down, we would not expect the Court to reenter the picture if it can avoid doing so.

September 27, 2013

Angela Harris Festschrift

Professor Angela Harris's former colleagues at Berkeley Law are celebrating her incredible work with a daylong conference today.

Professor Harris is one of the nation's foremost scholars in the fields of critical race theory, feminist legal theory, and civil rights. She joined the King Hall faculty from UC Berkeley School of Law in 2011.

Here is the program for today's Festschrift:

Welcome / Opening Remarks

  • Melissa Murray (Berkeley Law)
  • Acting Dean Gillian Lester (Berkeley Law)

Panel 1: Feminist Legal Theory

  • Kathryn Abrams (Berkeley Law) Moderator
  • Mary Anne Franks (University of Miami)
  • Priscilla Ocen (Loyola LA)
  • Camille Gear Rich (USC)
  • Madhavi Sunder (UC Davis)

Panel 2: Race and Criminal Justice

  • David Sklansky (Berkeley Law) Moderator
  • Mario Barnes (UC Irvine)
  • Aya Gruber (Colorado)
  • Cynthia Lee (GWU)
  • L. Song Richardson (Iowa)

Lunch and Keynote Address

  • Keynote Speaker: Dean Rachel Moran (UCLA)

Panel 3: Economic and Environmental Justice

  • Robin Lenhardt (Fordham) Moderator
  • Tucker Culbertson (Syracuse)
  • Sheila Foster (Fordham)
  • Trina Jones (Duke)
  • Emma Coleman Jordan (Georgetown)
  • Angela Onwuachi-Willig (Iowa)

Closing Remarks

  • Angela Harris

Reception with Alumni and Festschrift Guests

Dinner (with remarks by Dean Kevin R. Johnson, UC Davis)

September 3, 2013

A Debt of Gratitude for the Civil Rights Movement

Cross-posted from the American Constitution Society Blog.

As Americans reflect on events a half century in the past, I hope they will consider how it might guide our actions now. In particular, I hope people will think about what Americans still owe the African American community.

On August 28, 1963, the date of the March on Washington, the United States was pervasively discriminatory to a degree not fully appreciated today.  African Americans bore a significant burden; in many or most parts of the country, they could not vote, attend public schools with whites, patronize the public accommodations or live in the housing that they wished, or hope to be hired for a broad range of public and private employment. 

But African Americans were hardly the only oppressed group. Rape within marriage was no crime, and, although the Equal Pay Act was on the books and would take effect in 1964, employers could get around it simply by not hiring women for good jobs.  The idea that gay men and lesbians might legally marry someone of the same sex was absurd; instead, investigation, prosecution, and imprisonment for sodomy were an important part of the business of law enforcement.  Un-American immigrants (Africans, Jews and Catholics) were discouraged from immigrating through gerrymandered quotas; Asians were excluded by race.  The list of those whose marginalization was justified and defended as obviously correct was long, and included people with mental or physical disabilities, Indians, religious minorities including Jews and Muslims, children born out of wedlock, and single mothers.

America was remade thanks to the bodies and blood of African Americans -- whites and others also participated in the civil rights movement, of course, but, primarily, it was African Americans. The civil rights struggle, exemplified by the March on Washington, had revolutionary consequences. Part of its effect was near-term changes like passage of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the unsung but perhaps most effective anti-racist legislation of the period, the Immigration and Nationality Act Amendments of 1965, which, by allowing for immigration on a non-racial basis, put America on the path to being a majority-minority nation.  

But more fundamentally, the movement established a principle of equal dignity and treatment that is still bearing fruit, not just for African Americans but for all people. Perhaps its major legacy is that a working majority of Americans are skeptical of any claim that a group should be excluded or disadvantaged; discrimination must justify itself, and, usually, it cannot.

The bitter irony is that African Americans have not enjoyed a full share of the social changes which they unleashed.  Women as students, workers and political leaders have made great strides in just a few decades.  Asian and Latino immigration has exploded; Latinos are now the country’s largest minority group.  Homophobia as a legal policy is rapidly collapsing.  But, because of current discrimination and the present effects of past discrimination, African Americans remain residentially and educationally segregated, over-incarcerated and under-employed.  They are poorer, less healthy and otherwise disadvantaged not only in comparison to whites, but also in some respects compared to recent immigrant groups.

The truth is that it is not obvious that naked self-interest compels women, Asians, gays and Latinos to be concerned about the African American community. If the food stamp program is cut or affirmative action for African Americans is eliminated, for example, that likely will not reduce female participation in higher education or undermine support for gay marriage. And all of those groups suffered in their own ways and can take credit for fighting their own battles to win a place at the table.  Nevertheless, African Americans do not enjoy basic equality in the sense of a full and fair shot to make it in this country. For all Americans concerned about justice, particularly those who would not be where they are, or here at all, but for the African American contribution to the principle of equality, this anniversary should be a reminder that there is important unfinished business.

August 16, 2013

Another Front in the Same-Sex Equality Campaign: Jury Service, Peremptory Challenges, and the Smithkline Beecham Corp. v. Abbott Laboratories Case Pending in the Ninth Circuit

Cross-posted from Justia's Verdict.

In the same-sex marriage cases that were heard and decided by the U.S. Supreme Court earlier this summer, gay/lesbian rights advocates urged the Justices to declare broadly that laws that discriminate against persons based on sexual orientation should be considered constitutionally suspect, and thus should trigger "heightened judicial scrutiny."  That is another way of saying that any such law should be struck down by a court unless the government can prove, by convincing evidence, that the law really does accomplish important governmental objectives, and is not simply based on prejudice or outmoded stereotypes.  Under a "heightened scrutiny" test, federal and state bans on same-sex marriage would be very unlikely to survive.

The Supreme Court avoided answering this question of which "level of scrutiny" should apply to laws that differentiate among people on the basis of sexual orientation; indeed, if the Court had not avoided this question, it could not have effectively dodged the question it did not want to answer: whether all states have to recognize same-sex marriage.  But the Court's failure to address the "level of scrutiny" issue leaves unresolved questions regarding the legal treatment of sexual-orientation discrimination in other important settings besides marriage.  One such setting is raised by an interesting and important case, Smithkline Beecham Corp. v. Abbott Laboratories, which is being argued next month in the United States Court of Appeals for the Ninth Circuit.  At issue in Smithkline Beecham is whether it is constitutionally permissible for a lawyer to "strike" (remove) would-be jurors from a case because of their sexual orientation.  In this antitrust lawsuit involving HIV medications, an attorney for one of the companies exercised a so-called "peremptory strike" (also known as a "peremptory challenge")-effectively removing a possible juror from inclusion in the jury-because the would-be juror was "or appears to be, could be, homosexual."  Peremptory challenges allow each side of a case to strike (remove) a certain number (with the number being equal for both sides) of would-be jurors for no supportable reason, but instead because of hunches or intuitions held by the lawyers about how sympathetic particular persons would be as jurors.

Background on the Theory and Practice of Peremptory Challenges

Peremptory challenges have been around in American jurisdictions for a long time.  They are distinguishable from so called "strikes for cause," a term used to describe the right each lawyer has to remove from the jury pool all persons who are shown to be actually incapable of rendering an impartial decision.  Some analysts think that if lawyers ask (as they may need to ask) tough questions to would-be jurors to determine whether particular individuals should be removed for cause, peremptory challenges are needed to remove those would-be jurors who might have been put off or offended by the tough questioning.  And some people (though not I) think that peremptory challenges enhance the legitimacy of the judicial system, insofar as the parties may more readily accept a decision that is reached by a decision-making body that they themselves helped shape. But the Supreme Court has repeatedly made clear that no constitutional right to peremptories exists; and some states have severely curtailed their use in state courts.

Moreover, while the essence of peremptories is that they needn't be based on any good reasons, the Supreme Court has held that they cannot be based on some bad reasons-most particularly, race and gender.  So whenever it is shown that a lawyer exercised a peremptory strike because of a would-be juror's race or sex, the Fourteenth Amendment's guarantee of equal protection of the laws is said to be violated.  (One might ask why the Equal Protection Clause governs private lawyers exercising peremptories in lawsuits between private parties.  The answer is that because trials are quintessentially governmental operations, and because it is technically the judge who dismisses a would-be juror from the pool-albeit at the behest of the lawyer exercising the strike-the Constitution's equality norms apply here.)  But the Supreme Court and lower federal courts have been reluctant to add other criteria, beyond race and sex, that are constitutionally impermissible bases for the use of peremptories (although one famous line of Supreme Court cases frowns on eliminating jurors because of wealth.)  In the Smithkine case, the Ninth Circuit will have to decide whether to add sexual orientation to the list of improper criteria.

An Understandable Concern About Slippery Slopes, and One Answer:  Eliminate Peremptories Altogether

The judicial reluctance to expand the list of bases on which peremptories may not be premised stems in part from a concern over slippery slopes.  As one lower court observed when confronted with the question whether age should be a constitutionally impermissible ground for peremptories:  "if the age classification is adopted, surely blue-collar workers, yuppies, Rotarians, Eagle Scouts, and an endless variety of other classifications will be entitled to similar treatment. These are not the groups that the court has traditionally sought to protect from under-representation on jury venires."

So the slippery slope problems here are real.  Over the past few decades, a handful of the Justices who have served on the Court, perhaps most notably Justice Breyer, have been unmoved by the prospect of a slippery slope regarding peremptories, because these Justices think that the Court should reconsider whether any peremptory challenges can be constitutionally exercised.  One reason for Justice Breyer's skepticism about peremptories is the difficulty of proving an improper motive on the part of lawyers.  Because peremptories are supposed to be usable based on irrational hunches, lawyers can give bizarre reasons to explain their use of peremptories and still must be believed, even if race or sex was, in fact, the actual motivation behind the peremptory strikes.  So eliminating race- or gender-based peremptories may, in the real world, require eliminating all peremptories.  (The Smithkline case illustrates this; it is remarkable that the case has made it this far, because the lawyer exercising the peremptory based on sexual orientation could likely have explained the peremptory on other, idiosyncratic grounds and been believed.)

The Link Between Jury Service and Voting

Another reason for being constitutionally skeptical about peremptories is that jury service has traditionally been tied, and analogized, to voting.  This linkage makes sense:  jurors, like individuals casting ballots for members of Congress or the President, exercise their power by voting for particular results; jurors implement policy when they decide cases, just as voters help shape policy by electing representatives or adopting initiatives.  And throughout American constitutional history, voting and jury service have been considered "political rights" governed not so much by the Fourteenth Amendment, but more directly by the Fifteenth (which prohibits race discrimination in voting); the Nineteenth (which prohibits gender discrimination in voting); the Twenty-Fourth (which in effect prohibits wealth discrimination in voting), and the Twenty-Sixth (which prohibits age discrimination in voting.)

If we take the juror-as-voter analogy seriously, then removing people from juries becomes more problematic, because certainly we would not allow governmental actors (at least not since the Supreme Court decided important cases dating back to the 1960s) to prevent any would-be voter from participating in any particular election unless there were a compelling justification for doing so.

But for those who are not yet ready to dispense with all peremptories, toeholds on the slippery slope are needed.  One such toehold is hinted at in the analysis above-at the very least, the groups that receive textual protection in the Constitution from discrimination in voting (groups defined by race, gender, wealth and age) should also be protected from discrimination in jury service.  So far, the Supreme Court has embraced protection for the first three kinds of groups (defined by race, gender and wealth) and has not ruled on the fourth (defined by age.)

The Role of Equal Protection Doctrine

Yet another set of stopping points down a slippery slope comes not from the voting rights amendments (the 15th, 19th, 24th and 26th), but from equal protection doctrine.  The idea here would be that those groups of people who are generally protected from discrimination under the equal protection clause (groups defined by race, gender, marital status of parents, perhaps religion, etc.) should also be protected in the peremptory challenge setting.  That is why the Supreme Court's failure to make clear the standard of review it was applying in United States v. Windsor (the case from June striking down part of the Defense of Marriage Act, or DOMA) becomes important here.

The oral argument in Smithkline should be interesting.  The panel of Judges Schroeder, Reinhardt and Berzon is, even more so than the three-judge panel in the Proposition 8 case, liberal by Ninth Circuit standards.  If one had to bet, one might expect this panel to frown on the use of sexual orientation as a basis for peremptories.  And if the Ninth Circuit does invalidate sexual-orientation-based peremptories, then the Supreme Court may end up being interested in the case, and could render a ruling that would, directly or indirectly, bear on the question of same-sex marriage bans too.  A lot to keep watch on in the coming months.

August 1, 2013

Why California Should Repeal Proposition 8

Part Two in a Two-Part Series on What Should Happen to Same-Sex Marriage in California After Hollingsworth v. Perry. Cross-posted from Justia's Verdict.

In the space below, I continue to analyze what will-and what should-happen to California's voter-adopted ban on same-sex marriage, Proposition 8, in the wake of the U.S. Supreme Court's ruling earlier this summer in Hollingsworth v. Perry.  Two weeks ago, in Part One of this two-part series, I argued that the request made on July 11 by the proponents of Proposition 8 to get the California Supreme Court to order County Clerks to stop granting same-sex marriage licenses-Clerks have been issuing same-sex licenses for about a month-was unlikely to be successful.  Today, after elaborating a bit more on this post-Perry litigation, I move beyond the judicial arena to the ballot box, where I think repeal of Proposition 8 by the California electorate is feasible.

A Recent Development:  The San Diego County Clerk Asks the California Supreme Court to Weigh In

Shortly after my last column was posted, the County Clerk for San Diego County filed a separate request in the California Supreme Court asking for an order declaring that Proposition 8 should continue to be enforced by County Clerks, and preventing the Governor, the Attorney General, and the State Registrar from trying to force the San Diego Clerk to issue same-sex marriage licenses.  The San Diego Clerk's arguments echoed those made to the California Supreme Court by the initiative's proponents themselves the week before.  As it did with the proponents' request, the court refused to grant the San Diego Clerk an immediate block on same-sex marriage license issuance, but set a briefing schedule so that the court could decide whether to fully address the merits of the dispute in the coming month(s).

I don't expect the California Justices to accept the San Diego County Clerk's invitation to wade into this dispute in depth, for many of the same reasons that I discussed in Part One in connection with the proponents' request:  (1) The California Supreme Court's review is discretionary; (2) The case turns largely on the best way to interpret a federal district court order, and state courts will usually refrain from getting into contested interpretations of federal court orders; (3) The federal court order, by its straightforward terms, applies broadly to the County Clerks in Los Angeles and Alameda, so that unless those two individuals challenge the federal court order, same-sex marriage licenses will continue to issue from those Counties (and thus in the State) in any event; and (4)  Even if the state law questions-about the independence of County Clerks from the Governor or State Registrar and the obligation to continue to enforce laws that have not yet been invalidated by appellate courts-are interesting and important, there will be better cases down the road in which to reach those issues.

And here's an additional reason why the San Diego Clerk's request will likely be rejected by the California Supremes:  unlike the Proposition 8 proponents, the San Diego Clerk (who is arguably subject to the federal court order) might have standing in federal court to seek a ruling-from that court itself-that he is not covered by the federal order and will not be held in federal contempt if he refuses to issue same-sex marriage licenses.  A federal court faced with such a such a case might, at that point, try to enlist the help of the California Supreme Court to answer the question whether County Clerks are subject to the "control or supervision" (the term used in the federal court order) of state-level officials.  But the California Supreme Court would seem well-advised to wait for such a request (if one ever materialized) before opining on these matters.

Moving from the Courtroom to the Ballot Box:  Repeal of a Measure No Longer Supported by the People

Based on the analysis offered above, I don't expect the issuance of same-sex marriage licenses in California to stop anytime soon.  And so, for practical purposes at least, California's ban on same-sex marriage will become a dead letter.  Is that where the Proposition 8 political-legal opera should end?  To my mind, the answer is no; I think Proposition 8's true final Act should be repeal at the ballot box.

If Proposition 8 is not, in practice, limiting gay marriage, why would repeal be necessary or helpful?  For starters, we must remember that a judicial invalidation of a law and an injunction against its enforcement aren't the same as getting rid of the law; the measure remains on the books, and conceivably could spring back to life if a different Governor or Attorney General tried to reopen the case and undo the federal court injunction by defending Proposition 8 on the merits (something Governors Schwarzenegger and Brown, and Attorneys General Brown and Harris, never did.)  Cases (like Perry) that were never actually contested on the merits between the appropriate plaintiffs and defendants are-because of the absence of a true adversarial clash in the courtroom resulting in a judgment-strong candidates for reopening, should a particular Governor or Attorney General want to do so.

But, someone might respond, the political climate in California is moving in the opposite direction-in favor of, not against, same-sex marriage.  So the likelihood of a new Governor or Attorney General trying to resurrect Proposition 8-especially after hundreds of thousands of same-sex couples in the state already get married-is very slim.  I think that's probably true.  But remember that Governors and Attorney Generals get elected based on many issues, and they may win office in spite of, rather than because of, their position on any one subject.  Moreover, after they assume office, they sometimes take actions that seem to go against the views of a majority of voters, as Schwarzenegger and Brown themselves did when they refused to defend Proposition 8 when the Perry lawsuit was filed in 2009, a time when the state's electorate may very well still have favored the measure.

But all that brings me to the second, and more important, reason to repeal Proposition 8:  It no longer reflects the views of Californians, and state law on fundamental questions like this ought to accord with the true beliefs of state voters.  Proposition 8 passed in 2008 by a 52-48 margin, and a recent LATimes opinion poll suggests that a similar measure today would be supported by only 38% of voters, with 56% favoring same-sex marriage equality-a huge change in just five years.  But the only poll with true credibility is the one at the ballot box itself, and so Californians should revisit Proposition 8 in an election the next year or so.

And having California's laws line up with California's values will matter to people outside California as well.  As is now clear, after the Supreme Court's actions earlier this summer, the struggle over same-sex marriage rights in the United States continues to be waged in many, if not most, of the 35 or so states that do not allow same-sex marriage.  Having California in the "yes" column on same-sex marriage as a result of an election, rather than as the product of the actions of a small number of persons (a Governor and Attorney General who declined to defend, and an unelected District Court judge who issued an injunction), is important for political purposes in other states and, ultimately, for constitutional purposes when the U.S. Supreme Court returns to same-sex marriage rights-as it will almost certainly have to-in the coming years.  In Perry and United States v. Windsor (the case involving the federal Defense of Marriage Act, also known as DOMA) a month ago, the Court was able to avoid the question whether there is a national constitutional right to same-sex marriage, but it will have to answer that question directly in the next decade or so.  And there is broad agreement that the Court is keenly aware of national consensuses and national trends when it decides the content and scope of national constitutional rights (whether or not such awareness ought to be relevant).  Having California (which alone houses about 12% of all Americans) join the ranks of the same-sex marriage states through an affirmative act of its electorate will maximize its clout in these national processes.

The Logistics of Repeal:  Getting a Repeal Measure on the Ballot

Many measures that (like a repeal of Proposition 8) stand a good chance of success before the voters are nonetheless never acted upon because of the cost (often about a few million dollars) and headache of gathering the signatures required to qualify an initiative for California's statewide ballot.  But signature-gathering isn't the only way to get a measure on the ballot in California; if 2/3 of each house of the state legislature votes to put a constitutional amendment on the ballot, the amendment is offered to the electorate.  For decades this route has seemed an unlikely one, because major ballot measures are often very polarizing along party lines, and neither political party has controlled 2/3 of each house of the legislature.  But today (and barring any very unusual events, for the next year at least) Democrats can be assured of occupying 2/3 of the seats of the California Assembly and Senate.  And there may very well be a number of Republican legislators who think that California voters should be given the chance to weigh in again on same-sex marriage, since the landscape has changed so much over the last half-decade.  So there seems to be a window for the California legislature to act, to let California voters speak once again on this most important of questions.  And even though some significant money may have to be spent in the ad campaign to get such a repeal enacted, I would expect-given the salience of this topic in California over the last few years and the movement reflected in recent opinion polls-the amount of money need not be that great, and in any event would be well-spent, given the alternative: months and perhaps years of technical wrangling in the state and federal courts, leading to an outcome that cannot easily to be said to derive from the California people themselves.

July 1, 2013

SB 744: Border Enforcement Run Amok? by Kevin R. Johnson

(Cross-posted from ImmigrationProf)

The passage of the Border Security, Economic Opportunity, and Immigration Modernization Act (Senate Bill 744) by the U.S. Senate is a major achievement. It includes provisions that would increase border enforcement, expand legal immigration, and create a path to legalization for eligible undocumented immigrants.

As with all political compromises, SB 744 will not please everyone. Still, the reform proposal will in my estimation could well turn out to be the first major piece of truly "comprehensive" immigration reform since President Ronald Reagan signed the Immigration Reform and Control Act of 1986 into law.

The new border enforcement measures in SB 744 build on previous enforcement measures, such as the expansion of the border fence along the U.S./Mexico border. More generally, the U.S. government has greatly ramped up border enforcement since the mid-1990s, for example, with the high profile border operation known as Operation Gatekeeper sought to seal the border immediately south of San Diego.

This post focuses on one troublesome aspect of the Senate bill. The "border security" aspects, including the amendment sponsored by Republican Senators Bob Corker and John Hoeven added immediately before its passage in the Senate, are deeply problematic. The "border surge" amendment dramatically increases unnecessary enforcement, adding thousands of Border Patrol officers along the U.S./Mexico border and billions of dollars into further militarizing the entire region. In my view, the border surge would not reduce undocumented migration and thus constitutes a big waste of money and resources. To add insult to injury, the surge would also exacerbate some of the worst excesses of the current enforcement regime.

Why More Enforcement?

The border enforcement provisions of SB 744, including the requirement that all employers verify employee eligibility to lawfully work through the computer database known as E-Verify, are a response to the claim that the Obama administration is failing to enforce the immigration laws. This is a difficult claim to substantiate based on the facts:

1. Record Deportations: The Obama administration has deported more noncitizens than any administration in U.S. history, setting annual removal records of about 400,000 a year.

2. Super-Aggressive Enforcement: The Obama administration has taken aggressive positions toward immigration enforcement, such as the Secure Communities program , which has allowed for record levels of removals and aggressive litigation positions, such as in Moncrieffe v. Holder, a case in which the Supreme Court rejected the U.S. government's efforts to classify a long term lawful permanent resident as an "aggravated felon" subject to mandatory removal based on one conviction for possession of the equivalent of 2-3 marijuana cigarettes.

3. Decreased Undocumented Immigration: Undocumented immigration has decreased due to the Great Recession and many Mexicans have returned to Mexico.


The Questionable Policy Impact of Increased Border Enforcement

The border enforcement measures of the Senate reform bill would do little to reduce undocumented immigration. While the requirement of the use of E-Verify by employers might diminish the magnet of jobs (although concerns abound that the database will be accurate or will wrongfully deny employment opportunities to many people eligible to work), other enforcement measures will not have do much to deter undocumented immigration. The stagnant U.S. economy has dramatically reduced undocumented immigration. Moreover, the border surge amendment has caused some pro-immigrant groups to oppose the immigration bill. To make matters worse, the various enforcement measures would continue some of the worst excesses along the border:

1. Destruction of Families: The removal of 400,000 noncitizens a year, many for relatively minor criminal offenses, has torn apart hundreds of thousands of families and communities across the country. U.S. citizen spouses and children have suffered as well as the noncitizens removed. This destruction of families is inconsistent with the goal of promoting family unity that long has been the linchpin of the U.S. immigration laws.

2. Racial Profiling: U.S. immigration enforcement long has been plagued by racial profiling of Latinos. By greatly expanding border enforcement and the number of Border Patrol officers, the bill will necessary expand racial profiling of Latinos, who are perpetually suspected of being foreigners. Profiling arguably has increased with increased state and local law enforcement involvement in immigration enforcement. Notably, a federal court in May 2013 ruled that Sheriff Joe Arpaio and his Maricopa County (Arizona) Sheriff's Office engaged in a pattern and practice of abusing the civil rights of Latinos in the name of immigration enforcement.

3. Border Deaths: One less well-known aspect of increased border enforcement has been the growing death toll along the U.S./Mexico border region. As enforcement has centered on major urban areas along the border, migrants have sought entry in more desolate locations where death due to exposure (i.e., heat in the desert) is more likely. Deaths on the border are a regular part of live in the border region. More enforcement, including extension of the border fence, will likely contribute to more deaths as migrants are redirected toward more desolate - and dangerous - locations.


Many observers see the border enforcement provisions of comprehensive immigration reform as a political compromise necessary to attract votes, especially from Republicans in the House of Representatives. That may be true. However, there is little, if any, reason to believe that the measures will in fact reduce undocumented immigration. And there is every reason to believe that the enhanced border enforcement will have negative impacts on Latina/os and other Americans, tearing apart American families, increasing racial profiling and discrimination, and resulting in more deaths along the U.S./Mexico border. Conmsequently, we should view the political compromise with those significant costs in mind.

Where does this analysis leave us? There are other parts of SB 744 that do make more policy sense, such as many of the changes to the legal immigration provisions (e.g., increasing the visas for high- and low-skilled workers, abolition of the diversity visa program, elimination of the long visa backlogs, etc.), and the path to legalization for eligible undocumented immigrants, including the DREAMers who were brought to this country as children by their parents. The enforcement provisions do not help the bill achieve the policy goals of immigration reform. Moreover, the decision to double down on border enforcement will result in horrible collateral damages. It ultimately is a legitimate question whether the costs of the enforcement measures outweigh the benefits of the more positive policy aspects of the Senate bill. we also should keep in mind that the Senate bill may be as good as it gets.

June 26, 2013

In the Media: Faculty Members on Prop. 8 and DOMA (Updated)

Photo: Reuters

The national, regional, and local media are turning to UC Davis law faculty for expert analysis and commentary on today's U.S. Supreme Court decisions on the Proposition 8 and Defense of Marriage Act (DOMA) same-sex marriage cases.

Here is a sampling of media citations. This list will be updated as more stories hit the web.


Dean Kevin R. Johnson

Southern California Public Radio

DOMA ruling a victory for bi-national couples, but legal questions remain


Associate Dean and Professor of Law Vikram Amar


Supreme Court Strikes Down DOMA; Paves Way for California Gay Marriage (with video)


Justia’s Verdict

Analysis: If the Supreme Court Decides the Proposition 8 Sponsors Lack Standing, What Will Happen to Same-Sex Marriage in California? This April 26 essay is being cited by numerous news agencies and blogs today.


KQED Forum

Prop 8 Ruling Paves Way for Same-Sex Marriage in Calif.; DOMA Ruling Gives Gay Couples Federal Benefits (with audio)


The Sacramento Bee

Jerry Brown tells California counties to issue gay marriage licenses


The Los Angeles Times -- Update added June 27

Same Sex Weddings to Resume in California Soon, Officials Say,0,3679293.story


Capital Public Radio’s “Insight” -- Update added June 27

Prop. 8 and DOMA Follow-Up (with audio)


San Jose Mercury News -- Update added June 27

Proposition 8 Appears Doomed in California after Supreme Court Ruling


KTXL Fox40 News -- Update added June 27

Making Sense of What's Next after Ruling on Prop. 8 (with video)


The Guardian UK -- Update added June 27

U.S. Moves to End DOMA Discrimination after Gay Rights Breakthrough


The New York Times -- Update added June 28

Roberts Pulls the Supreme Court to the Right Step by Step


The Los Angeles Times -- Update added June 28

Prop. 8 Ruling Raises Fears about Effects on Other Initiatives,0,3117108.story


Professor of Law Courtney G. Joslin

Bloomberg News and Bloomberg Businessweek

Supreme Court Ruling Narrows Gay Couples’ Benefit Gap


Capital Public Radio’s “Insight”

SCOTUS Rulings on DOMA & Prop. 8 (with audio)


Equality Radio

Live Coverage: SCOTUS decisions on Prop 8 and DOMA (with audio)


KTXL Fox40 Morning News

Reaction to the Prop 8 Ruling (with video)


Orange County Register -- Update added June 27

Why DOMA Went Down

Orange County Register DOMA Reactions.pdf (622.87 kb)


St. Louis Post Dispatch -- Update added June 27

Many Applaud Gay Marriage Rulings, thought Direct Effect in Missouri and Illinois Will Be Limited

June 21, 2013

A Preview of Next Week’s Supreme Court Ruling in Hollingsworth v. Perry: What to Expect and What to Look For

Cross posted from Justia's Verdict.

As millions of people eagerly await next week's Supreme Court action in Hollingsworth v. Perry, the case from California involving Proposition 8 (the voter-enacted ban on same-sex marriages in the Golden State), I offer below a few thoughts on what to expect and what to look for in the Court's ruling.

We Should Not Expect a Definitive Resolution of the Federal Constitutional Question of Same-Sex Marriage

First, I don't think we will get a big resolution of the meta-question whether the federal Constitution's Fourteenth Amendment requires recognition of same-sex marriage.  Why?  Because a ruling in either direction is fraught with peril.  The Court (or at least its middle, controlling wing) is probably not ready to proclaim a national right when roughly three-quarters (38) of the States currently do not recognize same-sex marriages.  At the time of Loving v. Virginia, the 1967 case striking down Virginia's ban on interracial marriage, only 16 (or less than one-third) of the States prohibited marriage across races.  And in Lawrence v. Texas, the case from a decade ago in which a divided Court invalidated Texas' attempt to criminally punish someone for engaging in homosexual conduct, the Court noted that only a handful of states at that time actively prosecuted persons for similar conduct.  Even the momentous equality ruling Brown v. Board of Education did not call into question the laws of more than 20 or so states that mandated educational segregation in 1954.  As bold as the Supreme Court has been in protecting liberty and equality rights, past practice does not suggest a likely proclamation of a national right here, when things are so fluid in the States.

But that fluidity also cuts against a ruling flatly rejecting a national right to same-sex marriage.  Because things are changing so quickly (witness the three states that have decided to legalize same-sex marriage just in the few months since the Supreme Court heard oral arguments in the Proposition 8 dispute), the number of states embracing gay marriage could increase over the next decade from 12 to something in the range of 30 or more.  So the Court (or, again, its middle wing) may not want to deny a same-sex marriage right claim altogether next week, because to do so would make it harder (on account of stare decisis) for the Court to recognize a national right in the coming years, should a majority of Justices think doing so is the correct constitutional thing.

In short, my sense has always been that the Court had no desire to wade into the same-sex marriage thicket while the issue is percolating so actively in legislatures and state courts, and that the only reason the Court granted review in the Defense of Marriage Act (DOMA) and Proposition 8 cases this year is that lower federal courts invalidated these prominent enactments.  (That is to say, had lower courts upheld DOMA and Proposition 8, I think the Justices would have been content to deny review.)  Having been essentially forced to take cases before the Justices really wanted to weigh in at all, the Court will, I think, try to resolve less, rather than more.  In the DOMA case, there seemed at oral argument to be some support among the Justices to invalidate the challenged provision of DOMA without imposing same-sex marriage on unwilling states (by relying to some extent on federalism rather than individual rights), and I think in the Proposition 8 case the Court will also look to act as minimally as reasonably possible.

Narrower Options in the Proposition 8 Case

So what are the remaining options for the Court concerning Proposition 8, and which ones are the most likely?  One is that the Court could reject the plaintiffs' assertion of a national right to gay marriage, but make clear that things could change as the nation evolves on this question.  This is a possible route, but not a very attractive one for the middle/left of the Court, because the takeaway headline/holding would still be the rejection of the right.  And this would-if the Court were then to want to reverse course and accept the right in the near-term future-require the Court to offer a somewhat contentious explanation of how the meaning of the Constitutional document can change so rapidly.  Easier-for those Justices who think they may embrace the claim down the road-to avoid the broad question altogether for now.

A second option would be to strike down Proposition 8, but do so on the narrow grounds used by the Ninth Circuit and urged by the Solicitor General, grounds that would not invalidate the laws of all 37 other non-same-sex-marriage states, but rather only some small number of them.   The problem is that the Ninth Circuit's reasoning-which included the idea that California's ban is hard to justify as rational because the state has gone so far down the road to equalizing the rights of gay and straight couples-doesn't really work.  Many of the Justices at oral argument-even those generally thought to be more liberal or moderate-made the point that telling a State that it can't be rational in moving incrementally simply because it has moved at all is odd, at the very least.  The argument is a tough sell, even though the Ninth Circuit bought it.

A third choice would be to simply dismiss the Proposition 8 case from the Court's docket altogether.  Such a dismissal (known as a "DIG", which is short for "Dismiss as Improvidently Granted") is certainly possible, and would enable the Court to say nothing at all about Proposition 8.  It would be as if the Court had declined to grant review in the first place.  But, as I've explained before, a DIG is hard to square with the decision of four Justices to grant certiorari in the first place; nothing in the case has really changed since the original grant.  Moreover, a DIG would leave the Ninth Circuit ruling-and its reasoning-intact as the law of the Western United States, something a large number of Justices may be uncomfortable about.  Also, if the Court were going to DIG the case, it might have announced that decision before now.  So I place the odds of a DIG at something below 50%.

The Standing Route

That brings us to an approach I have been arguing for years is the best way to go-a ruling that Proposition 8's sponsors lack standing in federal court to defend the initiative, even though the elected officials normally counted on to defend (the Attorney General and the Governor) have declined to do so.  I think this is the most likely of the various possible outcomes (perhaps more likely than all the others combined) because it has many virtues.

Such a ruling would allow the Court to avoid speaking to the merits of the same-sex marriage dispute, but would also erase the Ninth Circuit's opinion.  A ruling on standing would-in the end-most likely result in Proposition 8's demise.  But, importantly, under this scenario, same-sex marriage would likely come about in California not from unelected federal judges' contested views of the Constitution, but rather from the actions of elected (and accountable) officials in California (the Attorney General and Governor) whose failure to defend the measure will ultimately bring it down.

A standing ruling would more than just prudent; as I have argued, I think it would be justified by the principles of standing law itself, and would resolve an important and open question within the doctrine of standing.  So a ruling that the Proposition 8 proponents lack standing should be seen not an unprincipled dodge, but rather as a legally justified and eminently sensible course of action.

Things to Look for if the Court Rejects the Proponents' Standing

If the Court does pursue this avenue, here are the two things to look for/focus on:

First, as for same-sex marriage in California, we should examine the ruling carefully to see what guidance the Court gives to the lower courts on remand.  Everyone agrees that the Ninth Circuit opinion would be vacated (undone), and that the two named-plaintiff couples who sued should get their licenses.  But how and why they get their licenses will be important, and will affect whether other same-sex couples in the State should get licenses right away too, or instead will have to wait for future legal or political developments.  Key to this question will be what, if anything, the Court says about trial Judge Vaughn Walker's judgment striking down Proposition 8 that he issued after the high-profile trial he oversaw.  We are not talking here just about the scope of Judge Walker's injunctive remedy against State officials, but whether the judgment in favor of the plaintiffs itself has to be erased and re-sought (in a different form) by the plaintiffs.  I have argued that Judge Walker's judgment probably should be vacated (and language near the end of the Supreme Court's opinion in Karcher v. May seems to support my argument), but we need to see whether any, or a majority, of the Justices speak directly to this issue and what they say.  The issue will undoubtedly be important for the timing of same-sex marriage in California, but it also has ramifications for standing doctrine more generally.  The question of what, precisely, follows from a finding that the only defendant who is actively defending lacks standing is an important one.

Second, we should examine what, if anything, the Court says about how initiatives can be defended when elected officials don't defend them, so that the initiative device itself is not diminished.  The best argument for initiative-proponent standing is that elected officials shouldn't be able to kill the very initiative device that is designed to be a check on their power.  There are ways for the Court to ensure that initiatives can be defended even if the Proposition 8 proponents lack standing-e.g., voters can deputize initiative sponsors explicitly and provide a framework for their authority to represent the people  (in a way that Proposition 8 voters did not)-but the question is whether the Court will see and discuss them.


May 16, 2013

Book Review: Governing Immigration Through Crime

Cross-posted from Law and Politics Book Review.

The book is Governing Immigration Through Crime: A Reader.

Authors: Julie A. Dowling is Assistant Professor of Latina/Latino Studies at the University of Illinois, Urbana-Champaign. Jonathan Xavier Inda is Associate Professor of Latina/Latino Studies at the University of Illinois, Urbana-Champaign.

For several years, immigration scholars have criticized the increasing reliance on the criminal law (and criminal penalties) to enforce the U.S. immigration laws, which historically have been enforced through civil sanctions. Juliet Stumpf encapsulated the growing body of scholarly criticism in her seminal work “The Crimmigration Crisis,” a path-breaking article reprinted in Governing Immigration Through Crime.

The criminalization of U.S. immigration law has proceeded relatively quickly through a variety of steps. Congress in the last 25 years has systematically reformed the immigration laws so that increasing numbers of crimes can result in the removal of lawful permanent residents from the country. Exhibiting an Alice in Wonderland-like quality, the immigration laws today frequently classify misdemeanors as “aggravated felonies,” thus subjecting a lawful permanent resident to near-mandatory removal from the United States. The harshness of the removal grounds has led a conservative Supreme Court on several occasions to intervene; for example, the Court in 2013 halted the virtually mandatory removal of a long term resident of the United States guilty of possession of a few grams of marijuana for personal use (Moncrieffe v. Holder). Congress also has required the mandatory detention of the ever-expanding category of “criminal aliens,” which has created a huge, and growing, immigrant detention industry (McLeod 2012).

Beginning in earnest during the George W. Bush administration, U.S. immigration authorities have worked increasingly closely with state and local law enforcement authorities to remove noncitizens from the United States. The Obama administration has enlisted state and local police in efforts to enforce the U.S. immigration laws. Many states have passed immigration enforcement laws relying on the criminal law ostensibly designed to encourage undocumented immigrants to “self deport.” In addition to extension of an expensive fence along the U.S./Mexico border, U.S. immigration authorities have dramatically increased enforcement operations to levels never previously seen before in U.S. history. Last but not least, the crime of “illegal re-entry” into the United States has been prosecuted ever-aggressively by the U.S. government, contributing to docket congestion in the federal courts and a large increase in the number of Mexican nationals imprisoned in the United States.

The increased use of the criminal law to regulate immigration has had dramatic impacts. In President Obama’s first five [*209] years in office, his administration set records by removing roughly 400,000 immigrants from the United States annually; he has by a large margin deported more noncitizens than any President in U.S. history. It is noteworthy that removals have not been limited to undocumented immigrants but include many lawful permanent residents who have lived in the country for many years. Hundreds of thousands of removals have resulted in the destruction of hundreds of thousands of families, communities, and lives. Although the administration claims to focus on serious criminal offenders, many of those caught in the enforcement net are at best small time criminals, including persons arrested for traffic infractions such as lacking driver’s licenses for which undocumented immigrants are not eligible in most states.

Governing Immigration Through Crime collects in one reader important contributions to the scholarly literature on the use of the criminal law in immigration enforcement. The previously-published works were written by influential scholars from law and the social sciences, including anthropology, sociology, ethnic studies, criminology, urban planning, communication, and political science. The stated aim of this book “is to provide an interdisciplinary introduction to the governing of immigration through crime” (p.38). Fulfilling that aim, the editors’ selection and organization of the book results in a concise and thoughtful reader, with the pieces offering important perspectives from a variety of vantage points.

The volume begins with an extended introduction to “Governing Migrant Illegality” that sets the stage for the subsequent readings. The editors “broadly (but not exhaustively) map the governing of immigration through crime in the contemporary United States” (p.3, footnote omitted). As the editors state, “in the contemporary United States, undocumented immigration has come to be seen largely as a law and order issue” (p.5, footnote omitted). Much of the public and many political leaders characterize undocumented immigrants as social, economic, political, and national security threats to the nation. In response, the U.S. government has adopted an array of criminal measures to deter undocumented immigration, such as criminalization of immigration violations, increased enforcement (at the border and beyond), immigration raids, additional technology, detention and deportation, and more.

The introduction starts by briefly summarizing the much-publicized 2008 raid at a meat processing plant in rural Postville, Iowa in which most of the immigrant workers were charged criminally for identity theft. The focus on this incident indirectly demonstrates just how quickly immigration enforcement has changed in the last five years. Unlike the Bush administration, the Obama administration is not focusing its interior enforcement efforts on workplace raids. Rather, it has relied heavily on a new “Secure Communities” program, which requires state and local law enforcement agencies to share information about persons arrested with federal immigration authorities. In 2013, it is Secure Communities, not workplace raids, which results in the mass removals of “criminal aliens.”

Importantly, because of the disparate impacts of immigration enforcement on [*210] Latinos, Governing Immigration Through Crime conceptualizes “immigration enforcement as a form of racial governance” (p.18). These impacts can be seen most clearly at the U.S./Mexico border, with deaths of Mexican migrants resulting from border enforcement operations on a regular, predictable basis. Similarly, enforcement measures in the interior of the United States have had disparate impacts on Latinos, who represent approximately 75-80 percent of the persons annually deported from the United States.

Governing Immigration Through Crime recognizes that Latinos and immigrants have contested racialized immigration enforcement. In 2006, tens of thousands of people marched in the streets of cities across the United States in protest of – and ultimately defeated – a tough-as-nails immigration bill passed by the House of Representatives. Since them, undocumented college students known popularly as the DREAMers have pressed the nation for justice, eventually pushing the Obama administration to establish the Deferred Action for Childhood Arrivals program.

The book is divided into five parts. Each part of the book has a short description of the chapters in that section.

Part I, “Law and Criminalization”, outlines in general terms the criminalization of U.S. immigration law. It includes chapters offering insights on Mexican migration to the United States (Nicholas DeGenova), the emergence of the “crimmigration crisis” (Juliet Stumpf), and the national security focus on migration since September 11, 2001 (Jennifer Chacón).

Part II, “Managing Borders”, has chapters on the physical and symbolic meanings of the growing U.S./Mexico “border wall” (Josiah McC. Heyman), the Minuteman Project’s vilification of Mexican migrants (Leo Chavez), and border-crossing deaths (Roxanne Lynn Doty). This part nicely links various enforcement measures, such as the border fence and the growing death toll of migrants in the U.S./Mexico border region.

Part III, “Policing the Interior”, includes chapters on the rise and fall of employer sanctions under U.S. immigration law (David Bacon and Bill Ong Hing), the human and civil rights impacts of Arizona’s immigration enforcement landmark S.B. 1070 (Rogelio Sáenz, Cecelia Menjívar, and San Juanita Edilia Garcia), and local immigration enforcement (including analysis of the passage of Hazleton, Pennsylvania’s much-publicized anti-immigrant ordinance) (Liette Gilbert). Added to the immigration laws in 1986, employer sanctions, which allow for the imposition of civil penalties on the employers of undocumented workers, has to this point failed to deter the employment of undocumented immigrants, thus contributing to political movements favoring state and local immigration enforcement measures.

Part IV, “Detention and Deportation”, includes chapters on the detention of Latinos as part and parcel of immigration enforcement (David Manuel Hernández), deportation and return to the United States of transnational Mexicans (Deborah A. Boehm), and the deportation of immigrants who had made the United States their true homes, aptly termed [*211] “exiled by law” by Susan Bibler Coutin.

Part V, “Immigrant Contestations”, includes chapters analyzing the mass immigration protests, or “La Gran Marcha”, of 2006 (Josue David Cisneros), the undocumented student movement (Robert G. Gonzales), and the use of surveillance strategies by groups seeking to ensure the protection of human rights and security (James P. Walsh).

The various chapters touch on the central issues raised by regulating immigration through deployment of the criminal laws. All of the chapters directly or indirectly criticize the use of the criminal law to regulate immigration to the United States. Their shared conclusion is that Governing Immigration Through Crime is a bad idea. Supporters of the current use of the criminal law to regulate immigration – and even its possible expansion – are not the intended audience of Governing Immigration Through Crime.

Space limitations necessarily require omissions in coverage. However, a few omissions deserve comment. The reader might have benefited from analysis of the most significant criminal immigration program currently in existence – the Obama administration’s Secure Communities program, which has culminated in more deportations than ever in U.S. history. Secure Communities requires state and local law enforcement to share information about persons arrested with U.S. immigration authorities. The program has generated considerable criticism from state and local law enforcement as well as immigrant rights’ advocates. It arguably undermines local law enforcement efforts to obtain the support of the immigrant community in ordinary law enforcement.

In addition, the chapter on Arizona’s S.B. 1070 would have benefitted – perhaps in a postscript, another chapter, or otherwise – from further analysis of the U.S. Supreme Court’s decision in Arizona v. United States (2012). Although striking down three core provisions of S.B. 1070, the Court left intact the law’s most controversial provision, Section 2(B), which requires state and local police to assist in the enforcement of the U.S. immigration enforcement laws. Activists have voiced serious concerns that Section 2(B)’s implementation will result in increased racial profiling of Latinos – U.S. citizens, legal immigrants, and others – in law enforcement.

More generally, one might have thought that a volume on the use of the criminal law in immigration enforcement would have considered the day-to-day immigration enforcement, namely the widespread practice of racial profiling of Latinos. The Supreme Court in 1975 held that “Mexican appearance” could be one of many factors in an immigration stop, a holding that has resulted in the legal sanction of racial profiling in immigration enforcement (United States v. Brignoni-Ponce). Such profiling helps account for the disproportionate stops and arrests of Latinos for immigration (and other law enforcement) violations as well as disparate detention and removal rates (Johnson 2010).

Last but not least, one is left to wonder what impact comprehensive immigration reform might have on the general [*212] phenomenon of governing immigration through crime. Immigration reform has been percolating in Congress for well over a decade. Unfortunately, current proposals on the table would increase, not decrease, the criminal law’s regulation of immigration with, for example, efforts to exclude and remove alleged “gang members.” At the same time, employers could be required to use a computerized database known as E-Verify to check the employment eligibility of all employees, which could make employer sanctions more enforceable and diminish the need for criminal measures.

In conclusion, Governing Immigration Through Crime offers important readings from influential legal and social science scholars critically analyzing the efforts of the United States to regulate immigration through the criminal laws. Although a few recent developments are not covered in the reader, the chapters aptly outline and succinctly criticize the increasing criminalization of immigration law in the United States.