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March 27, 2017

Reverse Political Process Theory

This post is about an article entitled Reverse Political Process Theory, which will appear in the Vanderbilt Law Review (forthcoming 2017).

The article is the first of two papers to take up an intriguing phenomenon at the Supreme Court: the Court's recent practice of granting what seems to be special, heightened constitutional protections to politically powerful entities. 

This observation may strike some as counter-intuitive.  After all, when one thinks of political power in constitutional law, the reflexive move is to consider Footnote 4 of Carolene Products and John Hart Ely's political process theory, under which politically powerless discrete and insular minority groups are to receive special constitutional solicitude.  But the reality is that the Supreme Court has long since stopped interpreting the Constitution to afford special protection to certain groups on the ground that they are powerless to defend their own interests in the political process. One need only consider as evidence the series of decisions in the late 1970s and 1980s reviewing laws that burden whites under the same strict scrutiny as laws that burden racial minorities, or the Court's more recent decision in Obergefell v. Hodges upholding the right to same-sex marriage based primarily on the fundamental nature of marriage, rather than the political status of gays and lesbians.

I argue in the Article that the Court has gone further than to merely reject the notion that powerless discrete and insular minority groups alone should be entitled to heightened judicial solicitude. In multiple doctrinal areas, the Court has reversed the theory's core prescription by conferring extra constitutional safeguards upon entities that, by any fair accounting, possess an outsized ability to protect their interests through the ordinary democratic process-all the while withholding similar protections from less powerful counterparts.  For example, the Supreme Court has recently granted large corporations a special defense against general personal jurisdiction under the Due Process Clause, allowing powerful, multi-national businesses to evade suit in U.S. forums despite having far more extensive contacts there than small business and individual defendants.  Similarly, the Court has afforded sovereign defendants a far more generous rule when it comes to interpreting waivers of their rights than it has with respect to waivers of rights possessed by (often indigent) criminal defendants.

After identifying these doctrinal developments, the Article offers an evaluation of the Court's long and tumultuous relationship with political process theory. I conclude that even if one opposes the idea of granting heightened constitutional protections to the powerless-perhaps because one believes judges cannot avoid substantive value judgments when deciding which groups are so weak as to warrant extraordinary protection from the democratic bazaar-attention to the political process should still require judges to stay their hand before granting special constitutional treatment to entities that are powerful enough to look out for themselves.

February 28, 2017

Argument analysis: Justices divided on meaning of “sexual abuse of a minor” for removal purposes

Cross-posted from SCOTUSblog.

This morning, the Supreme Court heard arguments in Esquivel-Quintana v. Sessions, a case that arose from the U.S. government's effort to remove a lawful permanent resident for a "sex crime." Judging from today's argument, the justices appeared closely divided on the question of statutory interpretation before the court.

When Juan Esquivel-Quintana was 20 years old, he was convicted under California law for having consensual sex with his then-16-year-old girlfriend. An "aggravated felony" conviction generally requires mandatory removal of an immigrant from the United States and renders the immigrant ineligible for most forms of relief from removal. 8 U.S.C. § 1101(a)(43) defines an "aggravated felony" to include the "sexual abuse of a minor." Claiming that Esquivel-Quintana's conviction constituted an "aggravated felony," the U.S. government initiated removal proceedings against him, and the immigration court ordered him removed from the United States. The Board of Immigration Appeals dismissed his appeal from the removal order. Applying the Supreme Court's seminal 1984 decision in Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc.,the U.S. Court of Appeals for the 6th Circuit deferred to the BIA's interpretation of "sexual abuse of a minor" and upheld the removal order. The dissent would have applied the rule of lenity, a judicial doctrine under which ambiguities in criminal law are resolved in favor of the defendant, to the interpretation of the criminal-removal provision in the immigration law and would have found that Esquivel-Quintana's conviction was not an aggravated felony.

The question before the Supreme Court is whether Esquivel-Quintana's conviction constitutes an "aggravated felony" as "sexual abuse of a minor" under U.S. immigration law. The case raises fascinating, and complex, questions about Chevron deference to an agency's reasonable interpretation of an ambiguous statute and about the rule of lenity that is generally applied to the interpretation of removal and criminal laws.

Arguing on Esquivel-Quintana's behalf, Jeffrey Fisher offered a multijurisdictional survey of state laws comparable to the California law to shed light on the meaning of "sexual abuse of a minor" in the immigration law. Justice Elena Kagan quickly began querying Fisher on his methodology for interpreting the statute. Fisher explained that it is appropriate to look at the laws of different states to discern the meaning of "sexual abuse of a minor" under federal law. Fisher later propounded an argument made in a "friend of the court" brief submitted by the Immigrant Defense Project - that there is a "readily apparent" federal definition of the phrase "sexual abuse of a minor." According to Fisher, the phrase refers to the offense of the same name described in the Sexual Abuse Act of 1986, as amended in 1996, the same year "sexual abuse of a minor" was added as an aggravated felony to the immigration statute. That federal offense applies only to minors under 16 and not to all forms of consensual sexual contact. Under that "readily apparent" federal definition, Esquivel-Quintana's conviction would not constitute an aggravated felony requiring removal.

At one point in Fisher's argument, Justice Samuel Alito intervened to ensure that Fisher was not asking the court to overrule Chevron, prompting Fisher to state emphatically "no, no, no." In response to another question from Alito, Fisher argued that the rule of lenity kicks in in favor of Esquivel-Quintana before Chevron deference can be applied. Chief Justice John Roberts seemed unconvinced, noting that "we've ... most often said that the rule of lenity is something you apply when you've already exhausted the normal tools of statutory interpretation," not "the other way around." Kagan sought to come to the rescue in search of "a middle ground," positing "a small exception to Chevron" in cases in which criminal laws come into play. Justice Stephen Breyer, a former administrative-law professor, did not buy this civil/criminal distinction.

Arguing on behalf of the federal government, Assistant to the Solicitor General Allon Kedem emphasized the need to employ traditional tools of statutory construction to interpret the reference to "sexual abuse of a minor" in the immigration law's definition of an aggravated felony. Kagan complained that the United States had pointed to few sources with which to interpret the statute. She nonetheless seemed to think that the statute was sufficiently clear to decide the case, although not in the way that the government wanted.

With respect to Chevron, Kedem claimed that the government would win even without Chevron deference, because the statute plainly included the conduct proscribed by the California law. Alito suggested an alternative approach to support the government's position - that the statute was in fact ambiguous and that through that ambiguity, Congress had afforded discretion to the attorney general to define the relevant term.

Justice Anthony Kennedy, who is often pivotal in close cases, asked Kedem a telling question about deference:

I can understand Chevron in the context of an agency that has special expertise in regulating the environment or the forest service or fisheries or nuclear power. Why   does the INS have any expertise on determining the meaning of a criminal statute?

Kennedy's question suggested that he may be skeptical about the applicability of deference doctrine to this kind of case.

Asked by Roberts about the role of the rule of lenity, Kedem characterized it as a rule of last resort, coming into play only if all other interpretive methods have failed, which, in the government's view, is not the case here.

Near the end of the argument, Justice Ruth Bader Ginsburg raised a question that arises in many criminal-removal cases. She stated that Esquivel-Quintana faces removal for a criminal offense that would not be a crime in the majority of states. With states moving toward decriminalization of marijuana possession and use, this kind of question will likely crop up even more frequently in the future.

In sum, the justices did not seem to have reached a consensus as to whether Esquivel-Quintana's crime constituted "sexual abuse of a minor" under the immigration laws. The justices' questions revealed the complicated interaction among the relevant statutory provisions; the high stakes of removal for lawful permanent residents, the complex state/federal issues involved, and the intersection of criminal and immigration law add to the difficulty and significance of this case. A decision is expected by the end of June.

February 21, 2017

Argument preview: Removal of an immigrant for "sexual abuse of a minor"

Cross-posted from SCOTUSblog.

Over the last few years, the Supreme Court has decided a number of criminal-removal cases. Next week, the justices will hear oral argument in another one, Esquivel-Quintana v. Sessions, which stems from the government's effort to remove a lawful permanent resident for a "sex crime."

The facts of the case sound like an episode of "Law and Order SVU." In 2000, Juan Esquivel-Quintana's parents lawfully brought him to the United States and settled in Sacramento, California. When he was 20 years old, Esquivel-Quintana had consensual sex with his 16-year-old girlfriend. He later pleaded no contest to violating California Penal Code § 261.5(c), which criminalizes sex with a person "under the age of 18 years" when the age difference between the parties is more than three years. Esquivel-Quintana was sentenced to 90 days in jail and five years' probation. After his release from jail, he moved from California to Michigan, a state in which the conduct underlying his criminal conviction would not have been a crime.

An "aggravated felony" conviction generally requires mandatory removal of an immigrant from the United States and renders the immigrant ineligible for most forms of relief from removal. 8 U.S.C. § 1101(a)(43) defines an "aggravated felony" to include the "sexual abuse of a minor." Claiming that Esquivel-Quintana's conviction constituted an "aggravated felony," the U.S. government initiated removal proceedings in Michigan. In 2008, before Esquivel-Quintana's conviction, the U.S. Court of Appeals for the 9th Circuit had held en banc, in Estrada-Espinoza v. Mukasey, that a conviction under the California law in question did not constitute "sexual abuse of a minor" under the immigration laws and was not an aggravated felony. Although Esquivel-Quintana asked the immigration judge to apply the 9th Circuit's reasoning to his case, the immigration judge declined to do so, accepting the government's argument that the removal proceedings were occurring within the jurisdiction of the U.S. Court of Appeals for the 6th Circuit - Esquivel-Quintana's new home. The immigration judge ordered Esquivel-Quintana removed from the United States. The Board of Immigration Appeals dismissed his appeal, noting that it was not bound by 9th Circuit law because the case arose in the 6th Circuit, which had not ruled on the definition of "sexual abuse of a minor" in this context.

Applying the Supreme Court's 1984 decision in Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the 6th Circuit deferred to the BIA's interpretation of "sexual abuse of a minor" and upheld the removal order. The dissent would have applied the "rule of lenity," a judicial doctrine under which ambiguities in criminal law are resolved in favor of the defendant, to the interpretation of the criminal-removal provision in the immigration law and would have found that Esquivel-Quintana's conviction was not an aggravated felony.

The question presented to the Supreme Court is whether Esquivel-Quintana's conviction constitutes an "aggravated felony" as "sexual abuse of a minor" under U.S. immigration law.

Esquivel-Quintana contends that because there is no "readily apparent" uniform definition of "sexual abuse of a minor," the court must compare the elements of the California crime against "[t]he prevailing view in the modern codes." Such a comparison, he argues, reveals that "federal law, the Model Penal Code, and the laws of 43 states consider the least of the acts criminalized under Cal. Penal Code § 261.5(c) - consensual sex between a 21-year-old and someone almost 18 - to be entirely lawful. Six of the seven remaining states deem it not sufficiently serious to be treated as 'sexual abuse.'" California is the exception.

Esquivel-Quintana goes on to assert that because the statute is not ambiguous, the BIA's determination that his conviction was an aggravated felony does not warrant Chevron deference. Even if the statute were ambiguous, he points out, in cases such as Immigration and Naturalization Service v. St. Cyr, in 2001, the court has espoused "the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien." Moreover, the rule of lenity also requires ambiguities in statutes with criminal applications to be narrowly construed. Finally, he maintains, the BIA's interpretation here would not be entitled to deference because it is unreasonable.

A "friend of the court" brief in support of Esquivel-Quintana submitted by the Immigrant Defense Project and two other immigrant groups takes a slightly different approach to interpreting the relevant statute. The amici argue that when there is a "readily apparent" federal definition of an offense, the Supreme Court will apply it, as it did in in Taylor v. United States, in 1990. They contend that just such a definition exists in this case: The phrase "sexual abuse of a minor" in the statute refers to the offense of the same name described in the Sexual Abuse Act of 1986, as amended in 1996, the same year "sexual abuse of a minor" was added as an aggravated felony to the immigration statute. That federal offense applies only to minors under 16 and not to all forms of consensual sexual contact. Under that "readily apparent" federal definition, Esquivel-Quintana's conviction therefore would not constitute an aggravated felony requiring removal.

Defending the 6th Circuit's ruling, the federal government contends that Esquivel-Quintana's conviction is an aggravated felony under the plain language of the immigration statute or, alternatively, under the BIA's reasonable interpretation of that provision. The government first asserts that the statutory language - "sexual abuse of a minor" - clearly encompasses all crimes involving sex with minors. In light of that clear statutory language, the government maintains, the court need not engage in the kind of time-consuming surveys of state law that are found in Esquivel-Quintana's brief.

The government goes on to argue that, even if the court determines that the term "sexual abuse of a minor" is ambiguous, Chevron mandates deference to the BIA's reasonable construction of that phrase. Any canon of statutory interpretation, such as the rule of lenity or the rule that ambiguities in deportation statutes should be construed in favor of the noncitizen, only comes into play as an interpretive method of last resort. In the government's view, Chevron deference, not canons of statutory construction, carries the day in this case.

In setting a series of records for numbers of removals during President Barack Obama's first term, the government focused its removal effects on noncitizens convicted of crimes. President Donald Trump has issued an executive order that, if implemented, would expand crime-based removals. This case illustrates some of the complexities associated with reliance on state criminal convictions in federal removals, which can lead to a lack of uniformity in the application of the U.S. immigration laws. The disparities between the states in areas of criminal law frequently relied on for removal, such as state marijuana laws, are growing, and are likely to pose interpretive challenges in the future for the federal courts in criminal-removal cases. It remains to be seen whether the justices will focus on these issues during the oral argument next week.

December 2, 2016

Argument analysis: Immigrant detention and the Constitution

Cross-posted from SCOTUSblog.

The detention of immigrants is a major tool for enforcing the immigration laws employed by the executive branch. President-elect Donald Trump has promised to detain immigrants facing removal while their cases percolate through the courts. Detention thus is poised to become more common for noncitizens in removal proceedings.

Yesterday, the justices appeared deeply divided during oral argument in Jennings v. Rodriguez. This class-action challenge to immigration detentions raises questions about whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing. The U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction that generally requires bond hearings every six months for certain classes of immigrant detainees.

The Supreme Court's immigration-detention decisions have followed a jagged path, often tracking American political and social history. In 1953, at the height of the Cold War, the court in Shaughnessy v. United States ex rel. Mezei emphasized the "plenary power" of the U.S. government over immigration and upheld the indefinite detention of a long-term legal immigrant who had briefly visited his native country. In 2001, in Zadvydas v. Davis, the court interpreted an immigration statute to require judicial review of a detention decision because a "statute permitting indefinite detention of an alien would cause a serious constitutional problem." But, not long after the tragic events of September 11, 2001, in the 2003 case of Demore v. Kim, the court again invoked the plenary-power doctrine to justify the detention of a legal immigrant convicted of a crime pending his removal. These cases left something for each of the parties to argue in Jennings.

The argument required counsel to navigate the thicket of Supreme Court immigration-detention precedent and explain the complex immigration statute and different sub-classes of immigrants in the case. The justices came at the case from several different angles. Many of the justices' questions focused on gaining a better understanding of how the immigration statute allowed for the detention of different sub-classes of immigrants. Several justices seemed perplexed by fact that the statute provides for detention without a bond hearing of someone who was placed in custody at the time of attempted entry into the country but that, in contrast, a similarly situated noncitizen who was apprehended in the interior of the country enjoys the right to a hearing.

Some of the justices, especially Justice Sonia Sotomayor but also Justices Stephen Breyer and Elena Kagan, found it hard to see how immigrants might constitutionally be detained without a bond hearing. Such a result, they suggested, is out of sync with the court's decisions dealing with civil and criminal detention, which are highly protective of the rights of persons subjected to a loss of liberty.

Justice Samuel Alito seemed to suggest that the constitutional issues surrounding detention might best be addressed through relief in individual cases rather than in a class action.

Chief Justice John Roberts appeared keen on remanding the case to the lower court to decide the constitutional questions; he suggested that the 9th Circuit should not have employed the doctrine of constitutional avoidance because the statute was so clear - especially with respect to the mandatory detention of noncitizens convicted of certain crimes required by 8 U.S.C. 1226(c). Roberts stated that, to avoid the constitutional question, the 9th Circuit had "draft[ed] a statute or a regulation," - an approach he characterized as "quite a leap."

Ian Gershengorn, the acting solicitor general, argued the case for the government, and frequently relied on Demore v. Kim, particularly with respect to making mandatory the detention of immigrants convicted of certain crimes. Gershengorn did not invoke the plenary-power doctrine, nor did he mention the extraordinary decision in Mezei, in which the court authorized the indefinite detention of an immigrant. Rather, the focus of his argument was that Congress had spoken on the issue of detention and "[t]he Ninth Circuit's decision is a serious misuse of the constitutional avoidance canon." In his view, the court of appeals rewrote the statutory provisions, rather than reasonably interpreting them to avoid constitutional questions.

Gershengorn ran into difficulty in grappling with questions about when a term of detention would be too long to satisfy due process concerns. He suggested that 20 years without a bond hearing would certainly be unconstitutional, but had a hard time explaining why a two-or three-year detention was not too long. (The mistaken statistical data about the average length of detention that the solicitor general's office had provided the court in Demore v. Kim came up in the argument, but was not a major bone of contention.) The acting solicitor general surprisingly suggested that delays in deciding removal cases were in part due to the "tremendous process to the individual alien" guaranteed by the statute, including counsel at no expense to the government. Sotomayor questioned whether lengthy detention could be appropriate without a finding that the immigrant was a flight risk or a danger to public safety.

Ahilan Arulanantham of the American Civil Liberties Union of Southern California argued the case for the detained immigrants. He defended the lower court injunction as an appropriate application of Zadvydas and its fashioning of a practical approach to avoiding significant constitutional problems. He contended that the 9th Circuit's requirement of a bond hearing every six months was appropriate in light of the fact that the USA PATRIOT Act requires bond hearings at such intervals for persons held for national-security reasons.

Arulanantham claimed that the availability of habeas-corpus review in individual cases was insufficient to address the constitutional concerns posed by prolonged detention. He pointed out that such cases on the average take 19 months to be processed by the courts - much too long a period, he argued, to be held in detention without judicial review. Much of the justices' questioning focused on whether the 9th Circuit had inappropriately relied on the doctrine of constitutional avoidance and whether the case should be remanded to the court of appeals to decide the constitutional questions. None of the justices appeared to buy the lower court's claim that the provision requiring detention of immigrants with certain criminal convictions could reasonably be interpreted to avoid those questions.

In sum, both sides in yesterday's argument had some explaining to do to the justices, who seemed troubled by two very different aspects of the case. On the one hand, as even the government seemed to concede, indefinite detention without a hearing is difficult to justify as a constitutional matter. At the same time, however, some justices worried that the 9th Circuit had acted more like a legislature than a court in fashioning the injunction requiring bond hearings every six months. Based on the argument, it may prove difficult for a majority of an eight-justice court to agree on a rationale for deciding the case.

November 23, 2016

Argument preview: The constitutionality of immigrant detention

Cross-posted from SCOTUSblog.

In recent years, the U.S government has aggressively used detention of immigrants as a tool for enforcing the immigration laws. Immigration detention became national news in 2014 when the Obama administration detained tens of thousands of Central American women and children fleeing violence in their native lands.

In Jennings v. Rodriguez, the court will consider the question whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing and possible release from custody. This case is a class-action challenge to lengthy immigration detentions without any opportunity for release on bond.

Brought to the United States as an infant, class representative Alejandro Rodriguez is a lawful permanent resident who had been employed as a dental assistant. Based on criminal convictions for possession of a controlled substance and "joyriding," the U.S. government sought to remove Rodriguez from the United States. While Rodriguez was resisting removal, the government detained him for more than three years without a bond hearing. An immigration court ultimately granted Rodriguez "cancellation of removal," and he remains in the United States.

Another class member, a torture victim from Ethiopia, sought asylum in the United States. The U.S. government detained him on the ground that his proof of identity was insufficient because, in the words of a Department of Homeland Security officer, "[t]here is an apparent correlation with all the Somalian Detainee's [sic] that present [sic] a paradigm of deceit and paralleled ambiguity of events and identity." A bond hearing would have allowed the class member to point out that, among other things, he was not from Somalia. An immigration court eventually granted asylum to this class member.

After Rodriguez and the other class members brought suit challenging the government's prolonged-detention practices, the district court entered an injunction requiring bond hearings for immigrant detainees. The U.S. Court of Appeals for the 9th Circuit affirmed most of the injunction. Interpreting the immigrant-detention statutes to avoid constitutional problems, the appeals court held that immigration judges must provide a bond hearing to a class member at least every six months and that a noncitizen must be released from detention unless the government can establish by clear and convincing evidence that the noncitizen is a flight risk or a danger to public safety.

In the government's brief, the solicitor general defends the immigration-detention regime that is currently in place:

Some may believe that the Ninth Circuit's vision of immigration detention is wiser or more humane, while others would disagree. But Congress weighed the interests in controlling the border, protecting the public from criminal aliens, affording individual aliens adequate protections and opportunities for relief and review, and minimizing the adverse foreign-relations impact of U.S. immigration law. The canon of constitutional avoidance is not a tool for courts to comprehensively rewrite those laws and strike a different balance.

The government further contends that habeas-corpus review in individual cases satisfies any constitutional concerns stemming from prolonged detention.

In defending the detention of class members during removal proceedings, the United States relies heavily on the 2003 case Demore v. Kim, in which the court invoked the "plenary power" doctrine - something exceptional to immigration law - to immunize from judicial review a provision of the immigration statute requiring a "limited time of detention" for immigrants awaiting removal from the United States. Last summer, the solicitor general confessed to the court that its briefs in Demore included "several significant errors" and greatly understated the average length of immigrant detention, a misstatement that may have influenced the outcome of the case. In its briefing in Rodriguez, the government minimizes the impact of the statistical misstatements on the court's decision in Demore.

To justify the lengthy detention of noncitizens seeking admission into the country, the solicitor general again relies on the plenary-power doctrine, claiming that the 9th Circuit's ruling "conflicts with this Court's longstanding rule that the political Branches have plenary control over which aliens may physically enter the United States and under what circumstances." In support of this proposition, the government cites a case from 1953, Shaughnessy v. United States ex rel. Mezei. Decided at the height of the Cold War, Mezei denied judicial review to an immigrant held in indefinite detention based on secret evidence, an outcome next to impossible to square with modern constitutional law.

Defending the injunction, Rodriguez and the other respondents contend that due process requires a bond hearing to determine whether the noncitizen is a danger to the public or a flight risk. Rodriguez cites, among other cases, United States v. Salerno, a 1987 case upholding pretrial detention of criminal defendants only after individualized findings of dangerousness or flight risk at bond hearings; Foucha v. Louisiana, a 1992 case requiring individualized findings of mental illness and dangerousness prior to civil commitment; and Kansas v. Hendricks, a 1997 case upholding civil commitment of sex offenders after a jury trial. Responding to the government's contrary assertion, Rodriguez argues that habeas-corpus review is not constitutionally sufficient to satisfy the due process concerns implicated by mandatory prolonged detention.

In a letter, Rodriguez claims that the factual misstatements by the solicitor general in Demore v. Kim "limit its relevance," and that the court must therefore be circumspect about the unverified statistical data provided in the government's briefs in this case. Rodriguez's brief distinguishes Demore, which he claims creates a narrow exception to the rule that detention may be imposed only after a bond hearing. In Demore, he claims, the court relied on two circumstances not present in this case: the government's admittedly inaccurate assertion that the average length of detention was brief and the immigrant's admission of deportability. In contrast, detention of an immigrant who is fighting removal, as in Rodriguez's case, is not brief, but can last many years. Moreover, many class members, including Rodriguez, have defenses to removal, which gives them an incentive to appear for removal proceedings. Such individuals, Rodriguez asserts, cannot therefore be presumed to present a flight risk or a danger to the public. Rodriguez further contends that, as it did in Zadvydas v. Davis in 2001, the court should interpret an immigration statute to require judicial review of a detention decision because "[a] statute permitting indefinite detention of an alien would cause a serious constitutional problem."

Indefinite detention of a person absent a bond hearing generally is not constitutionally permissible. By holding that the immigration statute permitted a bond hearing at reasonable intervals and possible release from custody, the 9th Circuit sidestepped the serious constitutional concerns presented by the statute. Ultimately, the questions before the Supreme Court are whether the 9th Circuit reasonably construed the statute to avoid the constitutional issues and, if not, whether ordinary constitutional rules apply to immigrants in detention. In addressing those questions, Wednesday's oral argument will require the court to grapple with its seemingly inconsistent immigrant-detention decisions in Zadvydas v. Davis and Demore v. Kim.

November 2, 2016

Immigration in the Supreme Court, 2016 Term

Cross-posted from Immigration Prof Blog.

Jack Chin and I participated in a podcast on Bloomberg BNA. The topic: Immigration in the Supreme Court's upcoming term.

LISTEN HERE TO THE PODCAST: "IMMIGRATION EVOLUTION"

Cracks are beginning to show in the deference that courts usually give to Congress in the immigration arena.

Tougher immigration laws have spurred the courts to import constitutional norms into the field, once subject to Congress's plenary power.

Bloomberg BNA takes a look at how that change might affect two immigration cases before the U.S. Supreme Court this term.

If you liked what you heard, check out more Cases and Controversies podcasts at bna.com. Be sure to follow along with the Supreme Court's 2016 term by taking a free trial to United States Law Week.

Hosts:

Kimberly Robinson

Nicholas Datlowe

Bernard Pazanowski

Guests:

Jason A. Cade, University of Georgia School of Law, Athens, Ga.

Gabriel "Jack" Chin, University of California, Davis, School of Law, Davis, Calif.

Kevin R. Johnson, University of California, Davis, School of Law, Davis, Calif.

Jennifer Koh, Western State College of Law, Irvine, Calif.

Nancy Morawetz, New York University School of Law, New York

Hiroshi Motomura, UCLA School of Law, Los Angeles

Featured Cases/Stories:

Chinese Exclusion Act Case (Chae Chan Ping v. United States)

Kerry v. Din, transcript

Donald Trump Muslim Ban, video

July 5, 2016

United States v. Texas: The Supreme Court Punts, Returns the Political Question of Immigration Reform to Congress

By Kevin R. Johnson

[Crosspost from ImmigrationProf Blog]

A little over a week ago, an equally divided Supreme Court left intact a lower court injunction barring the implementation of a major immigration initiative of the Obama administration. The program and litigation had proven to be controversial. Not surprisingly, most of the voluminous commentary about the case has focused on the power of the President vis-à-vis Congress to regulate immigration, the plight of the undocumented immigrants who might have been eligible for temporary reprieve under the program, the role of the states in future immigration policies, and related issues.

It should not be surprising that little of the commentary has focused on the real legal issues before the Supreme Court. Raising legal issues that only a law professor could love, the case really is about something much deeper and much more important to the United States. The case is simply the latest skirmish in the long political debate over immigration reform. As seen with the recent Brexit vote – in which concerns with immigration contributed to passage of a referendum removing the United Kingdom from the European Union, American immigration politics – as historically has been the case -- can be messy, divisive, and heated.

With no success, Congress has debated comprehensive immigration reform bills for more than a decade. Some versions of the reform bills would have offered a path to legalization for the 11-12 million undocumented immigrants living in the United States. Various incarnations of the DREAM Act would have provided relief to undocumented youth.

Because of the lengthy stalemate in Congress, President Barack Obama announced measured, limited, and temporary steps to address some of the issues facing this nation’s undocumented immigrants.

In November 2014, the Obama administration announced a “deferred action” program, Deferred Action for Parents of Americans (DAPA) for the undocumented parents of U.S. citizens and lawful permanent residents. The program built on the previous Deferred Action Program for Childhood Arrivals (DACA) program, which was implemented in the summer of 2012. DACA provided limited and temporary relief to hundreds of thousands of undocumented young people and was viewed as a ray of hope at a time when improvements through congressional action looked bleak. DAPA would have provided similar relief to many more.

“Deferred action” is fancy language that means that the U.S. government will not focus on removing undocumented immigrants who are otherwise law-abiding. It is a kind of prosecutorial discretion routinely employed by government in the enforcement of the law. Deferred action is not a path to legalization or citizenship and should not be mistaken as some kind of “amnesty.” It instead is a temporary reprieve from removal, revocable at the will of the Executive Branch (and thus by a new President).

Nobody, including President Obama, disputes that only Congress could create a durable path to legalization or citizenship for undocumented immigrants.

Although cloaked in the language of the law, the simple truth of the matter was that the Republican governor of Texas and 26 states did not agree with the Democratic administration’s policy choices. And, politically, they had little use for President Obama. They sued in federal court to put the immigration plan on hold and ultimately ended one of the Obama administration’s signature immigration measures. Fortunately, the Supreme Court with its even split did not create precedent that would allow the states in the future to pursue litigation for partisan political ends.

In the end, what began as a political question will return to the political arena after the Supreme Court’s non-decision in United States v. Texas. The question of immigration reform will return to Congress.

But even if the Supreme Court had upheld the administration’s immigration programs, Congress would still have needed – as it does now -- to address immigration reform. Deferred action does not offer permanent relief for the millions of undocumented immigrants like that which would be provided by many comprehensive immigration reform proposals. Indeed, a future president – a President Donald Trump, for example – might try to deport any and all deferred action recipients.

As the outcome of United States v. Texas should make clear, congressional action is necessary to reform the immigration laws. As most knowledgeable observers agree, the mass deportation of the millions of undocumented immigrants who are parts of our communities simply is not feasible. Consequently, some kind of path to legalization of undocumented immigrants is needed. Most informed observers further agree that reform of the legal immigration provisions of the laws is needed. Last but not least, many Americans believe that we need better enforcement measures All of these aspects of immigration reform raise thorny political questions that require careful deliberation and rational discourse..

In the end, the nation needs to think about how we achieve meaningful and lasting immigration reform that works.

June 29, 2016

Big Immigration Cases in the 2016 Term

The 2015 Term of the Supreme Court just ended.  Next Term. the Supreme Court will review two potentially significant immigration cases.  Both implicate significant doctrinal issues of immigration law that have perplexed the courts for many years.  The Solicitor General sought review of adverse lower court decisions in both cases.

The cases are:

Jennings v. Rodriguez, No. 15-1204

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

This immigration detention case will give the Court the chance to address immigrant detention, which has skyrocketed since 1996 immigration reforms.  The Obama administration has employed detention as an immigration enforcement tool and some immigrants have been held in detention indefinitely pending removal.  Because some nations have refused to accept some immigrants subject to removal, some immigrants have been indefinitely detained.  The circuits are split and the Supreme Court has decided a number of immigrant detention cases (Zadvydas v. Davis (2001) and Demore v. Kim (2003) in somewhat inconsistent fashion in the post-1996 era.  Indefinite detention without bond possibilities are unheard of with respect to criminal defendants.  The lower courts have reached different conclusions on immigrant detention issues.

Lynch v. Morales-Santana, No. 15-1191

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

The Supreme Court has been sharply divided on the lawfulness of gender distinctions in the laws granting citizenship to children.  See, for example, Flores-Villar v. United States (2011) and Nguyen v. INS (2001).  Besides the issue of gender stereotypes, Morales-Santana implicates the venerable plenary power doctrine , which historically has shielded the immigration laws from judicial review.  Although there have been "cracks" in the doctrine, it remains largely intact.

June 20, 2016

Breaking News: Supreme Court to Review Immigrant Detention Case

The Supreme Court did not decide United States v. Texas today.  It did grant certiorari in Jennings v. Rodriguez. (Download Jennings here.)

The issues in that case are 

(1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months;

(2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and

(3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien's detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.

The Ninth Circuit, in an opinion by Judge Wardlaw, affirmed in part and reversed in part the district court's order granting summary judgment and a permanent injunction in a class action lawsuit by non-citizens within the Central District of California challenging their prolonged detentions under civil immigration detention statutes 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a) without individualized bond hearings or determinations to justify continued detention.  The panel affirmed the district court's permanent injunction insofar as it required automatic bond hearings and required Immigration Judges to consider alternatives to detention. The panel also held that IJs must consider the length of detention and provide bond hearings every six months for class members detained longer than twelve months, but rejected the class's request for additional procedural requirements.

The panel held that subclass members subject to prolonged detention under mandatory detention statutes §§ 1225(b) and 1226(c) are entitled to bond hearings, and that subclass members subject to discretionary detention under § 1226(a) are entitled to automatic bond hearings after six months of detention. In an issue this court had not previously addressed, the panel held that the government must provide periodic bond hearings every six months.  

The Solicitor General in seeking review argued that

"The court of appeals' ruling also solidifies an acknowledged split of authority among the circuit courts of appeals. See Lora v. Shanahan, 804 F.3d 601, 614 (2d Cir. 2015) (describing the split and collecting citations). The Second Circuit has recently chosen to "follow the Ninth Circuit" and adopted the "bright-line approach," requiring bond hearings by the six-month mark for aliens detained under Section 1226(c). Lora, 804 F.3d at 615-616.6 By contrast, the Third and Sixth Circuits, while taking the position that detention without a bond hearing under Section 1226(c) is limited to a "reasonable" time, have squarely rejected the rigid six-month rule and instead assess reasonableness based on a case-specific balancing inquiry. See Ly, 351 F.3d at 271-273 (rejecting a ''bright-line time limitation"); Diop v. ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011) ("We decline to establish a universal point at which detention will always be considered unreasonable."); see also Leslie v. Attorney Gen. of U.S., 678 F.3d 265, 269 (3d Cir. 2012) (discussing "[t]he fact-dependent inquiry"); Chavez-Alvarez, 783 F.3d at 474 ("By its very nature, the use of a balancing framework makes any determination on reasonableness highly fact-specific.")."

June 19, 2016

Case Western Reserve Law Review Symposium on Whren

The Case Western Reserve Law Review published its symposium on the 20th anniversary of the Supreme Court's decision in Whren v. United States.

My contribution is included. Here is the link for "Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crime-Based Removals."