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February 2, 2023

A Sign of the Times?

[Cross-post from The Daily Journal]

By Kevin R. Johnson

Having grown up in the San Gabriel Valley, I know Monterey Park, a tight-knit bedroom community on the eastern outskirts of Los Angeles. Last weekend, the relative peace of the city was disturbed by a mass killing of eleven by a gunman. Two days later, a mass shooting in Half Moon Bay, south of San Francisco, left seven dead, the apparent result of a workplace dispute. Those and similar tragedies have been occurring with tragic regularity. Sadly enough, the truth of the matter is that mass shootings, deaths, and tragedies have become a regular part of U.S. social life. The nation in the last few years has seen a spate of violence at schools, churches, nightclubs, shopping malls, workplaces, and many public places. Together, they reveal much about the way we have become willing to resolve disagreements.

Hatred abounds and no doubt fuels gun violence, with guns generally available. However, guns have long been available in U.S. society. And California, where the latest mass tragedies occurred, have relatively tight gun safety laws. In the end, there appears to be larger social forces at work that have contributed to the spike in gun violence.

We should learn from the events of Jan. 6, 2021 in Washington, D.C. and the concerted effort by a small group to overturn a peaceful presidential election and orderly transition of power through violence. In effect, some of the perpetrators disagreed with Donald Trump’s election defeat. Anger, disappointment, and political frustration in some quarters is understandable. The inability to allow for respectful exchanges of ideas, readily accessible guns, and the belief that violence is a viable alternative to achieve change by silencing others together are a combustible mix.

The events of January 6 show a group of politically disappointed people who thought it acceptable to threaten to take power through violence. Although few really want to “kill the umpire” at a baseball game, some truly did want to kill some political leaders on Jan. 6, such as then-Speaker of the House Nancy Pelosi (and later one man nearly killed her husband Paul in their home). Similar passions appear to have fueled many of the mass shootings.

Unfortunately, as has happened at various times in history, anger, frustration, and disagreements with others has led to violence. For a while, violence, for example, was part and parcel of the struggle over access to abortions, with abortion clinics bombed and doctors who provided reproductive services killed. A long political fight followed, with the Supreme Court ultimately stepping in.

More recently, violence against members of the gay, lesbian, and transgender communities has followed recognition of their rights by political opponents of those rights. For many, unhappiness with political outcomes or other matters did not trigger violence. Recent events show today that violence may be viewed by many Americans as a viable political approach.

As history teaches, racial tensions can lead to violence. Throughout the pandemic, Asian Americans have been on edge in light of the spike in hate crimes against members of their communities. Some claimed that President Trump’s verbal attacks toward Chinese people encouraged violence against them. The spike itself shows the flaws in the claims that Asian Americans (called by some the model minority), even those whose families have been in the United States for generations, are fully accepted in U.S. society. Undoubtedly, some might well blame immigration and migrants for the violence in Monterey Park. They won’t assimilate. “They” live separate from “us.” But some of the culprits in the various attacks apparently have assimilated into the culture of violence that has become a new form of alternative dispute resolution in the United States.

Violence today is viewed in many circles as a form of expressing disagreement. That view affects all of us as a nation.

The tragic events in Monterey Park and Half Moon Bay, two California suburbs known for peace and tranquility, provide an appropriate time for a national soul-searching. Our fabric is frayed and violence has spread like a wildfire. Change must happen if the nation hopes to never see again anger and frustration erupt into violence.

January 27, 2023

MLK and Border Justice

By Raquel E. Aldana, Professor of Law and Co-Director of the Aoki Center on Critical Race and Nation Studies

"We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly." – Dr. Martin Luther King

I write these reflections on January 16, 2023, the day we commemorate Martin Luther King’s (MLK) legacy and imperative for racial justice. I am fortunate to teach at the UC Davis School of Law, named after MLK. King Hall, the name we use to call our school, draws exceptional students, including many who are committed to MLK’s racial justice project. In our Asylum and Refugee Law seminar this semester, we spent last week setting the stage to understand the human tragedy occurring at our U.S.-Mexico border and sadly the numerous parallels of similar stories across the globe. In anticipation of MLK day, I shared with my students a page the United Nations High Commissioner for Refugees (UNHCR) created back in 2021 in which a handful of transcendent refugees – meaning they themselves received harbor and propelled their lives to elevate others—reflected on how MLK inspires their lives. I was struck by the MLK quotes they chose. In addition to quote above, two others caught my attention: “Injustice anywhere is a threat to justice everywhere” and “America is essentially a dream, a dream yet unfulfilled.”

Two themes stand out for me in these quotes about today’s MLK-inspired racial justice imperative. The first is the universality and mutuality of the racial justice imperative. The second, more implied in its focus on the unfulfilled “American” dream, is the recognition that human rights begin at home. At first glance, these two themes may appear to conflict with one another. It could, for instance, mean that the universality and mutuality of the racial justice imperative that MLK espoused was bounded by borders, if only due to the pragmatic recognition of the enormity in the racial justice gaps present in MLK’s “America.” I take issue, however, with this bounded reading of MLK’s vision. Both then and now, “America” – an ironic use of the word that should name the continent and not a single nation within it – was a nation whose struggles for racial justice could not be disentangled from its global reality.

In 2016, the Huffpost wrote a piece titled Martin Luther King and Immigrant’s Rights. The piece discusses the paradox in how both those who promote restrictive borders and those who seek to open or erase them, claim MLK’s legacy as being on their side. The place of border justice – i.e., the treatment of freedom of movement as a fundamental right – as a racial justice project has not always been easy to name. This is, in part, because borders, not unlike prisons, have been used effectively to divide humanity between those who deserve justice and those who, due to their criminality or illegality, do not. The Huffpost piece, for example, recounts MLK’s efforts toward inclusivity when he wrote in a 1966 telegram to Cesar Chavez, the leader of the United Farm Workers (UFW), that our “separate struggles are really one.” Some would suggest that the Cesar Chavez and labor union’s own ambivalence over immigration, solidified a bounded inclusivity that prioritized the well-being of U.S. domestic workers in their search for racial justice. Except this explanation is too simplistic. For one, at the time, the UFW was comprised of a large force of undocumented workers. The problem, thus, was not the undocumented workers themselves but rather the system of laws, policies, and practices, that exploited the vulnerability of workers to create conflicts that directly compromised what should have been a joint project toward greater labor and workers right in this country. Overtime, labor unions would more fully understand the structural racism that permeated labor exploitation and to view borders as a tool for reinforcing such a system.

Today, MLK’s unfulfilled American dream for racial justice continue to weigh heavily on our shoulders. We are confronting an erasure of hard-fought civil rights gains in this country, sight unseen. Affirmative action and voting rights are threatened while racial disparities in income and other outcomes remain the most persistent features of U.S. society. It is understandable why the struggle for racial justice can turn us inward; except, in doing so, we can miss both nuance in analyzing the problem and its solutions or opportunities for global solidarity and action.

Take, for example, the dominant framing of asylum seekers form Mexico or Northern Triangle countries (Guatemala, El Salvador, on Honduras). Many, though certainly not all, are fleeing terrible violence waged against them by gangs or narco-traffickers. When I traveled with a group of King Hall students to Tijuana in March of 2022, I heard horrifying stories that haunt me still today. Yet I knew that even if the border had not been shut due to Title 42, few to none would qualify for asylum, their plight dismissed as privatized violence over which we neither had a moral or legal responsibility. But all we must do is dig a little bit deeper to understand this framing is just wrong. For over five decades, we have waged a similarly tragic, racialized, and failed war on drugs in Latin America that has wreaked havoc to many nation’s institutions and severely damaged their capacity to contain corruption and violence. As well, the transnational roots of gangs began with U.S. policies of mass deportations of gang members to the region without regard to the havoc – both violence and threats to democracy-- it would cause to those countries. Just yesterday, for example, hundreds of Salvadorans took to the streets to commemorate thirty-one years to peace that ended a war that left over 75,000 dead. But they all also protested President Bukele’s authoritarian rule which has, among other worries, led to tens of thousands of arrests and scores of human rights violations against those accused of gang affiliations.   

Despite the above, in recent days, the tenor of the conversation between President Biden and Mexican President López Obrador, with focus on enforcement as a mean to control migration flows, remind me of the dangers of looking only inward when we think of racial justice. President Biden is under extreme domestic pressure to control the border, seemingly at any human cost. Over the years, border policies have contributed to thousands of migrant deaths at the U.S.-Mexico border, with 2022 being the worst year. Domestic calls for tough on immigration control at the border, often a bipartisan project, have deadly consequences. They are also shortsighted. They will not work because they fail to address the root causes of migration, which include externalities from or the exportation of domestic U.S. policies to Latin America whose casualties are the migrants at our Southern border whose suffering we fail to heed.

December 22, 2022

Top Ten Immigration News Stories of 2022

[Cross-post from ImmigrationProf Blog]

By Kevin R. Johnson

2022 has been an exciting year in immigration law and enforcement.  It probably will be most remembered for

(1) the efforts of (and courts' resistance to) the Biden administration to roll back the Trump administration's immigration measures; and

(2) the publicity stunts of the governors of Texas and Florida to show that the Biden administration was not effectively enforcing the immigration laws. 

Here is the ImmigrationProf top 10 news stories for 2022.  By way of comparison, here are the top 10 news stories from 2021.

1.  The Biden Administration Faced Fierce Resistance to Rolling Back Trump Immigration Enforcement Measures.

As a public health measure, President Trump had invoked a public health law, Title 42, to expel migrants seeking to enter the country at the U.S./Mexico border.  The Biden administration sought to lift the Title 42 order.  Some courts and political leaders fiercely resisted the efforts.  The Supreme Court earlier this week stayed an injunction requiring an end of the Title 42 order. 

It was not only conservatives who questioned the lifting of the Title 42 order.  Its termination generated concern among some Democratic Senators.  With the Title 42 order slated to end, some Democrats became nervous.  As Law360 reported, four Democratic senators pressed the U.S. Department of Homeland Security to answer questions about managing the expected increase in migrants crossing the southern border, with a lifting of the Title 42 order.

The intensity of the worries grew after U.S. District Judge Emmet Sullivan invalidated the Title 42 order as "arbitrary and capricious."   Maria Sacchetti and Spencer S. Hsu for the Washington Post reported on the ruling.  The court order and the Biden administration's attempted announcement the the title 42 order would be lifted, sparked controversy. 

Days before the scheduled lifting of the Title 42 order, U.S. Supreme Court Chief Justice John Roberts stayed the court order ordering the end of the Title 42 orderThe bottom line:  the Trump administration's Title 42 expulsion order remains in effect.

DHS Announces the End (Finally) to Remain in Mexico Policy,  A Court Says No Way

Title 42 was not the only area in which the Biden administration's immigration initiatives -- and roll backs on Trump policies -- experienced resistance.  Despite the Supreme Court ruling allowing the Biden administration to dismantle the "Remain in Mexico" policy, which allows the return of asylum-seekers to Mexico while their asylum claims are being decided, the policy remained in place.  The Department of Homeland Security announced that it would phase out the Trump era Migrant Protection Protocols (MPP) program reported Adolfo Flores for BuzzFeed News.  MPP forced thousands of migrants to spend lengthy periods in dangerous conditions in Mexico.  It "has endemic flaws, imposes unjustifiable human costs, and pulls resources and personnel away from other priority efforts to secure our border," noted DHS Secretary Alejandro Mayorkas

The legal roller coaster over President Trump's Remain in Mexico policy continues.  A trip to the Supreme Court did not end the controversy.  Just last week, U.S. District Judge Matthew Kacsmaryk, a Trump appointee, suspended the Biden administration's termination of MPP.

There have been many other challenges to the Biden administration's immigration policies.  The Title 42 and Remain in Mexico battles offer an idea of the magnitude of the resistance and the administration's inability to reverse signature Trumpian immigration measures.

2.  State Governors Protest the Alleged Lack of Federal Immigration Enforcement by Transporting Migrants North

Texas Governor Greg Abbott and Florida Governor Ron DeSantis in 2022 repeatedly engaged in publicity stunts that showed utter disregard for the plight and humanity of migrants who have come to the United States. That included the extraordinary step of busing migrants to New York City, Washington D.C., and Chicago.

Governor DeSantis's transportation of a group of migrants to Martha's Vineyard in Massachusetts, a tourist destination of the rich and famous, attracted the most attention.  See Class Action: Migrants Say Florida Governor DeSantis "Stranded" Them on Martha's Vineyard.  A lawsuit followed Governor DeSantis's Massachusetts adventure.  Law360 reported on the suit by asylum-seekers alleging that they were tricked into boarding flights to Martha's Vineyard -- and left them stranded there -- in violation of their constitutional rights.

Other reports on the Martha's Vineyard spectacle:

Immigrants land on Martha's Vineyard;  Florida Governor takes credit

DeSantis Plays Politics with the Lives of Migrants

In line with the Governor DeSantis playbook, Texas Governor Greg Abbott made federal immigration enforcement a re-election campaign issue.  See Texas Governor Now Busing Migrants to Chicago as well as DC and NYC.

He sent migrants by bus from Texas to Washington, D.C. , New York City, and Chicago.  See Texas Governor Busing of Migrants to NYC and DC Keeps Him in the News.   NPR reported that "New York City Mayor Eric Adams . . . criticiz[ed] Texas Gov. Greg Abbott for sending busloads of migrants to the city, saying that Abbott 'used innocent people as political pawns to manufacture a crisis.'" (bold added).

Governor Abbott took a number of other immigration measures (and here).  They generated controversy but kept Abbott in the news.  

3.  The Supreme Court and Immigration

"Immigration in the Supreme Court, 2021 Term" reviews the Court's immigration decisions of the 2021 Term.  See last year's recap of the 2020 Term. 

The 2021 Term did not include any blockbuster immigration decisions.  Biden v. Texas probably received the most attention.  The decision cleared the way for the Biden administration to dismantle a signature Trump administration immigration enforcement policy, the "Remain in Mexico" policy, which requires asylum seekers to be returned to Mexico while their claims are being decided.  Breaking News: Supreme Court Decides Remain in Mexico Case.    

The Court decided five immigration cases in the 2021 Term, an average number for the Court in recent years.  What is different this Term is that the pro-immigrant position failed in four of the five immigration cases, showing the tilt of the Supreme Court's conservative super-majority.  The Court's immigration decisions include ones requiring careful, but rather routine (if not ponderous), interpretation of the immigration statute as well as more general legal principles.

For reasons having nothing to do with immigration, few will soon forget the 2021 Term in U.S. Supreme Court history.  For weeks, news was dominated by a leaked draft opinion in a blockbuster abortion case, which foreshadowed the overruling of Roe v. Wade (1973) in Dobbs v. Jackson Women's Health Organization.  In addition, controversy surrounded conservative Justice Clarence Thomas's ethical obligations in connection with the Court's consideration of cases in which his wife's political activities were implicated. 

This blog post looked at "The Overruling of Roe v. Wade and Immigrants."  The demise of Roe v. Wade undoubtedly will affect immigrant women -- especially poor ones (and here) -- in the United States   It will take some time to see the full impacts of Dobbs v. Jackson Women's Health.  Many questions will arise about the scope and breadth of the decision.  Will, for example, the federal government continue to provide access to abortions for immigrant women in detention?  Access to an abortion by a detained immigrant teen was the subject of litigation a few years back.  Some women may feel it necessary to travel to Mexico for an abortion.  Can a state bar travel outside the state to do so?  

On the last day of the 2021 Term, Associate Justice Stephen Breyer retired and the first African American woman Justice, Ketanji Brown Jackson, was sworn in to replace him.  During her confirmation hearings, Judge Jackson was quizzed on expedited removal ruling.  Here is a review of the Immigration Record of Judge Ketanji Brown Jackson, President Biden's Supreme Court Nominee.

With the retirement of Justice Stephen Breyer, the Court lost the author of a memorable majority opinion in Zadvydas v. Davis (2001), which reasoned that the prospect of indefinite detention of a noncitizen would raise "serious" constitutional questions.  He wrote "[b]ased on our conclusion that indefinite detention of aliens . . . . would raise serious constitutional concerns, we construe the statute to contain an implicit 'reasonable time' limitation, the application of which is subject to federal-court review."  Contrary to the teachings of the plenary power doctrine, which directs the courts to defer to the immigration judgments of the President and Congress, Justice Breyer did not show special deference to the U.S. government's immigration decision in that instance.  Zadvydas v. Davis has undermined the decision in recent years.

3.  Tragedy in San Antonio. Deaths on the Border Continue

A tragic mass death of migrants being trafficked in a truck/trailer into the United States in San Antonio shocked the nation, reminding us of the deadly consequences of contemporary migration flows.  See Death on the Border Chapter 101:   46 Migrants Reported Dead in Truck/Trailer in San Antonio, Texas.  In a statement on the tragedy, President Biden acknowledged that the event may be "the deadliest people smuggling tragedy in recent U.S. history."

The San Antonio deaths are the tip of the iceberg.  Border deaths are a regular part of U.S./Mexico border life and are an international phenomenon as well.  See IOM Report: More Than 50,000 Migrant Deaths; CNN: A record number of migrants have died crossing the US-Mexico border.

Deaths of migrants along the U.S./Mexico border have made the news for years.  See, for a few examples, hereherehere.  The death toll continues to mount.  Earlier this year, CNN reported that nearly 750 migrants have died at the U.S./Mexico border this fiscal year, a new record, according to Department of Homeland Security figures.  Migrants often face treacherous terrain when crossing the border - including oppressive desert heat, dangerous waters, and falling from the border wall.

4.  President Trump Announces 2024 Run for President

Can you believe it?  Donald Trump announced his 2024 run for President.  On the same day that a federal court found that his administration's extraordinary Title 42 order was arbitrary and capriciousDonald Trump announced that he would again run for PresidentHe made it clear that immigration enforcement would be a major plank in his platform.  President Trump, of course, took the most aggressive enforcement measures of any modern U.S. President.

5.  The World Welcomes Ukrainian Refugees Flee the Russian Invasion

The Russian invasion of Ukraine led to a mass migration of refugees.  European nations embraced them with open arms.  A number of posts on the ImmigrationProf blog (and here) have highlighted the differential treatment of Ukrainian refugees and those from Syria, Afghanistan, and Central America.  Voice of America released a report entitled "Immigration Experts Contrast US Support for Ukrainian, Afghan Refugees."  Here are a few more stories on the treatment of Ukrainian refugees: Ukrainian refugee crisis already ranks among the world's worst in recent history Refugee Double Standard: What the Global Response to Ukrainian Refugees Teaches Welcome for Ukrainians reveals 'hypocrisy' of Irish immigration system? "Fortress Europe" opens for Ukrainian refugees but keeps others out Ukrainian Refugees and Racism

6.  Migrants Flee Chaos in Venezuela

Political and economic turmoil in Venezuela led to a flow of migrants from that South American nation.  See Migrants from Venezuela, Nicaragua and Cuba are driving apprehensions at the U.S./Mexico border; AP -- US officials: Border crossings soar among Venezuelans.

Consistent with other news reports (and here), CNN reported that U.S. government data showed that "[i]n August alone, immigration agents encountered more than 203,000 individuals at the southern border. Migrants from just three countries - Venezuela, Nicaragua and Cuba - made up about 56,000 of those encounters, or about 28 percent . . . ."   The increase in migration from these three nations reduced the share of migrants coming from Mexico and Central America.  

7. Top Trump Advisor Steve Bannon Arrested for Fraud in Connection with Fundraising to Build a Border Wall

At one time a top Trump advisor, Steve Bannon in September surrendered on New York state fraud charges related to fundraising to build the wall along the U.S./Mexico border.  The state charges are based on the same conduct that Bannon was charged with by federal prosecutors in 2020. Then-President Donald Trump pardoned Bannon on the federal fraud charges. Presidential pardons do not apply to state charges.  The prosecution is pending.

8.  10th Anniversary of  DACA

June 15, 2022 marked the 10 year anniversary of the announcement by President Barack Obama of the Deferred Action for Childhood Arrivals (DACA) policy.  DACA was a major immigration milestone of the 21st century and provided limited relief to hundreds of thousands of young noncitizens.

Although the Supreme Court invalidated the Trump administration's attempt to rescind DACA, the Biden administration has met formidable judicial resistance to continuing the policy.  The lower courts have not been friendly to the administration's efforts to revive DACA and litigation continues over the future of DACA.

9.  UK's Policy of Shipping Asylum Seekers to Rwanda Challenged

The following news story did not get the attention in the United States that it deserves.  Kit Johnson blogged about the United Kingdom's extraordinary decision to ship asylum seekers to Rwanda.  Yes, Rwanda.  Click here for an Associated Press discussing how the policy operates.  The controversy over the policy continues.  Rwanda, really?

10.  The Holy Grail?  Immigration Reform.  Forget About It.

Congress discussed at various times the possibility of long-awaited immigration reform.  A possible proposal briefly made the news as the lame duck Congress moved toward the end of 2022.  See Is There a Possibility for Bipartisan (and Limited) Immigration Reform?

The recent chatter about the possibility of bipartisan immigration reform has dissipated.  Senators Kyrsten Sinema, who recently left the Democratic Party to become an Independent from Arizona, and Thom Tillis (R-NC), floated a framework for immigration reform.  It would have provided legal status for young undocumented immigrants and appropriations for additional border security.  To this point, reform has not come.  Forget about it.

Milestones

1.  UC Hastings Law Center on Race, Immigration, Citizenship, and Equality

ImmigrationProf blogger and Professor Ming Hsu Chen this fall launched a center at UC Hastings that will pursue research on equality issues and collaborate with other scholars and academic institutions.  Chen previously founded the Immigration and Citizenship Law Program at the University of Colorado.

The Center on Race, Immigration, Citizenship, and Equality (RICE) will offer lectures, conferences, panel discussions, research projects, student employment opportunities, and law classes with fieldwork components. It will promote scholarly engagement and forge links between other centers at UC Hastings, including the Center for Gender and Refugee Studies and the Center for Racial and Economic Justice.

2.  Passing of Immigration Law Professors

Legal academia in 2022 lost two wonderful and influential immigration law professors.

Funeral Services for Professor Michael OIivasRIP Michael Olivas Immigration Scholar

We lost an influential immigration scholar Professor Michael Olivas.  He had been honored in 2010 as this blog's Immigration Professor of the Year.  Professor Olivas was an influential immigration law scholar and a leading figure in legal education.  One strand of Professor Olivas's vast body of scholarship focused on issues at the intersection of immigration and Latina/o civil rights.  He also was a wonderful immigration colleague and organized the inaugural Immigration Law Teachers workshop in New Mexico in 1992.

RIP Professor Anna Shavers, Friend and Colleague

We also lost another wonderful person and influential immigration law professor, Anna W. Shavers, Cline Willliams Professor of Citizenship Law and associate dean for diversity and inclusion at the University of Nebraska College of Law.  She was simply the most decent person one could ever want to meet.  And she was an important immigration scholar.  Here is the University of Nebraska's statement on Professor Shavers's passing.

3.  Welcome Austin Kocher, New ImmigrationProf Blogger

In January, the ImmigrationProf blog announced the addition of blogger Austin Kocher, Research Associate Professor for the Transactional Records Access Clearinghouse.  Check out his profile.  TRAC is a research institute that uses Freedom of Information Act requests to study the federal government.  

Sports Page

Immigrants made the sports pages in 2022.  Here are a few headlines:

1.  Immigrants and the World Cup  

Argentina beat France in the finals on penalty kicks and took home the World Cup.  Migrant labor, with abuses reported, made the World Cup possible in Qatar.  Some may be surprised that many of the soccer players were not born in the country that they represented in the competition.      

2.  Game, set, match:  Novak Djokovic loses visa appeal, leaves country ahead of Australian Open

Last January, the saga of professional tennis champion Novak Djokovi seeking to defend his title in the Australian Open finally came to an end.  CNN reported that "[i]n a statement released after his appeal was dismissed, Djokovic said he would cooperate with authorities in arranging his departure from the country and confirmed he would not be playing in the Australian Open."  According to CNN, "Judge James Allsop said earlier that the court's ruling to uphold the immigration minister's decision to revoke Djokovic's visa was unanimous."

3.  Boston Celtic Changes Name to Freedom, calls becoming U.S. citizen "unforgettable"

At the very end of 2021, a National Basketball Association Boston Celtics player changed his name from Enes Kanter to Enes Kanter Freedom in celebration of becoming a U.S. citizen.  He said that taking the citizenship oath was "maybe the most unforgettable moment that I had in my life." An immigrant from Turkey, Freedom has been an outspoken critic of President Recep Tayyip Erdoğan and the Turkish government.  NPR interviewed Freedom about why he changed his name and his support for a boycott of the Olympics in China.

Society Page

An immigrant with expensive tastes, a propensity for con jobs, and the subject of a hit Netflix series, faced removal from the United States.  See Inside fake German heiress Anna Sorokin's immigration battle.

 The immigration case of Anna Sorokin, whose elaborate fraud captured the world's imagination, continues.  The subject of the hit Netflix series "Inventing Anna", Sorokin served about four years in prison after found guilty of criminal charges. She had claimed to be a German heiress named Anna Delvey who had a $60 million inheritance and was raising funds to launch a Manhattan social club. Sorokin swindled hundreds of thousands of dollars from friends, banks and New York City luxury hotels to fund a lavish lifestyle.

August 15, 2022

San Francisco is About to Change Dramatically -- Whether it Wants to or Not

[Cross-posted from the San Francisco Chronicle]

By Christopher Elmendorf

If anything defines the spirit of San Francisco, it’s the idea of doing things our own way. Immigrants, hippies, financiers, technologists, the LGBTQ community: Generation after generation, people with a vision for doing something differently and better, or simply for being different, have alighted here.

Doing things your own way can be great; our city has often been a haven for compassion and acceptance. But not always — and there’s nowhere we see that more profoundly than with land use.

 

San Francisco stands alone in making every permit for a land-use change subject to discretionary review. This means that anyone who doesn’t like a project can demand a hearing, and city officials may reject the project for any reason, regardless of applicable standards. And only San Francisco would be so bold as to post a self-study acknowledging its noncompliance with state permitting law — and then do nothing about it for the next two decades. And what other city would respond to a state mandate to plan for 10,000 new homes a year from 2023-2030 by submitting a plan for 5,000 homes a year by 2050?

 

The results indict the San Francisco way:

 

Our city has the second highest rents in the nation. Housing production has nearly ground to a halt. We have been so determined to “capture value” from new development — with impact fees, affordable housing requirements, costly building standards, labor mandates and more — that virtually all potential housing projects in the city have become economically infeasible to build. An investor who buys a dilapidated single-family home or warehouse in San Francisco can make a lot more money flipping it or selling it to Amazon than redeveloping the site for apartments. The city’s own studies point this out.

 

Thus, we have homeless encampments, innovative firms disembarking for cheaper markets, rents that only the fattest-salaried professionals can afford, gentrification of working-class neighborhoods, the displacement of the city’s African American population and an underclass of super-commuting service workers who make grueling daily drives from the Central Valley.

 

But this week marks a turning point.

 

On Monday, Gov. Gavin Newsom’s Department of Housing and Community Development released a devastating review of San Francisco’s draft “housing element” — a required 8-year plan through which cities show how they’ll accommodate their share of regionally needed housing. As a consequence, San Francisco will be subject to the state’s very first housing policy review, “aimed at identifying and removing barriers to approval and construction of new housing.”

 

What happens if San Francisco doesn’t get its act together?

 

For starters, the state will decertify the city’s housing element, which would cut off various streams of state funding, including for affordable housing. More dramatically, it would empower a “builder’s remedy” under state law that would allow developers of affordable and moderate-income housing to bypass city zoning codes. There are unresolved questions about how this will work in practice, but a San Francisco without an approved housing plan could be San Francisco in which new apartments are allowed to pop up helter-skelter throughout the city. Ultimately, courts could rewrite the city’s master plan for housing, exercising judicial authority conferred by a bill signed into law that City Attorney David Chiu authored when he served in the Legislature.

 

If city officials want to avoid this fate, a few things are now reasonably clear. First, San Francisco has just two years to come into compliance with state permitting law. This will require serious changes to standard operating procedures at the planning and building departments.

 

Second, any approved housing element will be an ongoing contract with the state, one with clear performance benchmarks and pre-specified consequences if the city comes up short.

 

Here’s an example: The city’s draft housing element tried to minimize the need for upzoning and regulatory reform by forecasting that the “pipeline” of already-proposed-but-not-fully-permitted-or-built projects will gush an unprecedented fountain of new homes — roughly doubling the city’s annual rate of housing production. This comes at a time when developers are abandoning projects left and right. Moreover, UC Berkeley data scientist David Broockman ran the numbers and found that San Francisco’s pipeline guesstimate vastly exceeds historical yields.

 

The state housing department’s review letter rightly asks what evidence supports the city’s magical projection. But more importantly, it told San Francisco to put a circuit breaker in its housing element, so that if the pipeline’s flow falls short of projections, the city will allow (for example) larger buildings to be developed citywide. A circuit breaker won’t work, however, if it merely triggers years of exhaustive environmental study followed by a vote on rezoning. San Francisco needs to decide now what the circuit breaker will do and allow it to operate on autopilot.

 

Third, the review letter hones in on the cumulative effect of San Francisco’s zoning, permitting, fees and all the other requirements the city heaps on new development. San Francisco won’t be able to get its housing element approved unless it realistically commits to making 80,000 new homes economically feasible to develop over the next eight years.

 

San Francisco can go its own way in deciding which regulatory requirements to roll back first. Should it be impact fees for public art or affordable housing mandates? But the bottom line must be a regulatory environment in which building new apartments and condos is more appealing than flipping existing single-family homes.

 

San Francisco will remain a special place. No one wants to change that. We will continue to be inventive, wacky, dreamy, different. But many more people will be able to share in it and call our city home. Thanks in advance, governor.

August 15, 2022

John Fetterman is Running a Test that Democrats Need to Watch

[Cross-posted from Politico]

By Lisa R. Pruitt

It’s no secret that Democrats have a rural problem. The party’s share of the rural vote had been shrinking for decades even before Donald Trump arrived on the scene, deftly tapping into rural and working-class discontent and dragging levels of Democratic support to new lows in nonmetropolitan places.

Even as Trump’s popularity has waned among some demographics, Democrats have shaved little off the GOP’s rural margins. Indeed, few Democratic campaigns seem to have tried to claw back rural ground, with many candidates appearing simply to cede the rural vote to the MAGA crowd. As most candidates for state-wide office continue to put all their eggs in the urban and suburban voter basket, rural Democratic organizers and operatives from North Carolina to Texas to Arizona to New York complain about state party failures to enhance their rural infrastructure and initiatives.

As a scholar who studies rural people and places, I’ve noticed one Democratic candidate who defies this trend. While consultants and organizers talk about the need for rural talking points and investments in rural newspaper and radio buys, this politician has deployed the most obvious strategy for making inroads with rural voters: He showed up in every county in his state.

Then, he did something really remarkable: He showed up again.

That candidate is John Fetterman, who secured the Democratic nomination for U.S. Senate in Pennsylvania’s May primary with a robust 59 percent of the vote and currently holds the lead in general election polling.

Fetterman lived up to his “Every County, Every Vote” slogan. On a single Saturday in early May, for example, he visited five counties in north-central Pennsylvania, part of the state’s “rural T” — the vast area which form a big “T” on the map between the Philadelphia and Pittsburgh metro areas and north to the New York state line.

Ten days later, in spite of a stroke that hospitalized him just a few days before the primary, Fetterman carried all 67 counties in the Democratic primary. In doing so, Fetterman didn’t just attend to the rural, he attended to what he often called the “ruby red” parts of the Keystone State. Trump carried all five of the counties Fetterman visited on that day in early May — Clinton, Potter, Tioga, Bradford and Northumberland — and he did so with at least 65 percent of the vote. In Potter County, four of five voters picked Trump. Many Democrats might see those counties as a waste of time, but in the primary, at least, showing up worked for Fetterman: He got 77 percent of the vote.

Fetterman is hardly the first Democratic candidate to make a show of an every-county tour. Indeed, it used to be the norm. When I was growing up in rural Arkansas in the 1970s and 80s, I recall Gov. Bill Clinton passing through my hometown each election cycle. (My family reminisced fondly for years about the day my sister, a teenaged waitress at Pearl’s Café, served Clinton coffee and a slice of pie.) Clinton showed up even though my county was home to a measly 8,000 folks, of whom less than a few thousand voted. It’s just how retail politics was done back in the day.

More recently, Beto O’Rourke conducted a 254-county campaign in 2018 when he ran against Ted Cruz for a U.S. Senate seat from Texas. O’Rourke lost, but by just 3 percent, and he and his running mate for lieutenant governor are now going out of their way to show up in the Lone Star State’s rural reaches. Likewise Chris Jones, Democratic nominee for governor of Arkansas, is on a 75-county tour of the Natural State as he challenges the Republican heir apparent, Sarah Huckabee Sanders.

But Fetterman may be the first candidate in recent memory to have visited each county in his state not once, but twice. When Fetterman became Pennsylvania’s lieutenant governor in 2019, he undertook a 67-county listening tour about cannabis legalization. Columnist Will Bunch of the Philadelphia Inquirer suggests this laid the groundwork for Fetterman’s widespread popularity, observing that when Fetterman returned to each county as a candidate for Senate, “he was shrouded in the purple haze of a political rock star.”

Fetterman’s primary strategy was, of course, the very antithesis of New York Sen. Chuck Schumer’s dismissal of a voting bloc Democrats used to rely on: “For every blue-collar Democrat we lose in western Pennsylvania,” Schumer said, “we will pick up two moderate Republicans in the suburbs in Philadelphia.” That was in the summer of 2016, and the senator was soon proved wrong. Pennsylvania was credited (or blamed, depending on your politics), along with Michigan and Wisconsin, with Hillary Clinton’s loss of the presidency. Trump beat her by about 44,000 votes in 2016 to win Pennsylvania’s 20 Electoral College votes. (Biden, who often referenced his scrappy Scranton roots, recovered in 2020 with a slightly wider margin of victory, 81,000 votes.)

The attention a high-profile candidate like Fetterman has paid to rural areas of his state may begin to ease the rural inferiority complex that’s been festering for decades, as rural economies have stagnated, small towns have lost population and country folks have become the butt of jokes. One 27-year-old woman in Westmoreland County, part of the Pittsburgh metropolitan area that struggles against the “Pennsyltucky” stereotype, praised Fetterman for showing up and speaking bluntly. “We’re not just silly hillbillies,” she told a New York Times reporter.

Fetterman has serious street cred when he speaks about crummy job markets and regional inequalities that bog down many nonmetro communities. Before seeking statewide office, he served for 13 years as mayor of Braddock, a down-and-out city of 1,721 near Pittsburgh. Fetterman has continued to live in Braddock — with his family, in a converted car dealership — even after he was elected lieutenant governor in 2018.

Issues of place — what rural sociologists call uneven development or spatial inequality — have long been front and center for Fetterman, as in his 2018 response to the Ballotpedia survey, “I am most passionate about policies that help our forgotten communities.” Fetterman’s wife, Gisele, struck a similar chord on the night of his primary victory. “This race we’re running, it’s a race … for every small town, for every person who calls those small towns home and for every person who’s considered leaving because they didn’t see enough opportunities.”

Many Pennsylvanians are presumably drawn to Fetterman’s everyman persona. He wears hoodies and gym shorts on the campaign trail, speaks Pennsylvania vernacular including “yinz” and “youse,” and “Stillers” and “Birds.” Even his long-time failure to look after his health — the cause of his stroke — is something many rural voters can relate to as rural hospitals close and health care gets harder to access. That’s on top of the rugged, self-sufficient mindset associated with rural culture that leads many — especially men — to forego medical care.

Fetterman doesn’t try to sound like a Republican. His policy positions are left of center—sometimes pretty far left of center — on everything except fracking, which he supports. He favors criminal justice reform, raising the minimum wage, supporting the LGBTQ community, and legalizing “dreamers.” He’s even in favor of abolishing the filibuster if that’s what it takes to advance a progressive agenda.

When it comes to abortion rights and unions, Fetterman has been known to use the word “sacred,” and he has been particularly vocal since the Supreme Court overturned Roe v. Wade in June. When it comes to unions, even Fetterman’s dogs — with their own Twitter account — have gotten in on the action, expressing excitement about the unionization of Pittsburgh area Starbucks stores:

Given that some of these positions — especially those on social and cultural issues — surely rankle Pennsylvania’s rural moderates, Fetterman’s popularity has probably risen not because of his stances, but rather in spite of them.

It may be that Fetterman’s personal appeal permits him to move the needle on voters’ political stances, pulling them along with his agenda. Fetterman may be to white working-class and rural voters in Pennsylvania what Michigan State Sen. Mallory McMorrow is to suburban moms: the politician whose conviction, leadership and relatability brings others along on progressive positions, e.g., support for LGBTQ youth, that might otherwise give those voters pause, or cause them to balk outright. “If John Fetterman believes it,” they may reason, “I’ll give it some thought. Maybe he’s got a point.”

Whatever happens in the general election, Fetterman’s rural success in the primary raises the question: Why aren’t more Democratic candidates pursuing rural voters like Fetterman has?

Politicians and political consultants offer several excuses. There’s the discomfort candidates, as well as their staff, may feel when going into presumptively hostile territory. Some Democrats assume rural America’s a lost cause, not only because rural folks lean Republican, but also because of an assumption that they are yesterday’s news, with little to contribute to the 21st century economy.

Plus, there’s a widespread assumption that campaigns just don’t get enough bang for their buck in rural places, where door knocking is inefficient because houses are scattered across the countryside rather than clustered along walkable streets. It’s the same urban-centric thinking that keeps all sorts of institutions from investing in rural people and places: a belief you don’t get a high enough return on investment where you can’t achieve economies of scale.

If Fetterman had bought that line of thinking, none of the places he visited on Saturday, May 7 would have been deemed worth his time. None has more than 10,000 residents, and three have populations hovering around just 3,000. All are in nonmetro counties, defined as fewer than 100,000 residents. Wouldn’t Fetterman have been wiser to spend that day in one of the state’s metropolitan areas, where critical masses of voters reside? After all, to make those five stops, Fetterman spent more than five hours driving 245 miles to get from one town to the next. And that doesn’t count the three hours it took him to travel each way from his Braddock home to this part of north central Pennsylvania. How many voters did Fetterman reach on those nonmetro appearances, conventional political wisdom might ask? Did he convert any voters who weren’t already in his camp?

Fetterman apparently wasn’t thinking about it that way. He’s running for state-wide office, which means that there are no gerrymandered districts to fall back on and a rural vote counts as much as an urban or suburban one. By visiting rural areas, the signal Fetterman sent to all rural Pennsylvanians — all “red” Pennsylvanians — is a powerful one. He saw them. He invested his time and energy in them, thus responding to a perennial rural complaint that politicians — and mainstream society generally — forgets or neglects them.

It’s clear that this worked in the primary, and the question is whether that success will carry through to the general election. The truth is that in statewide races, rural voters can provide Democrats a margin of victory even if their town or county is ruby red. This was evident in Terry McAuliffe’s failed campaign for Virginia governor in 2021. McAuliffe didn’t connect with rural voters, and he lost badly in nonmetro counties — the areas referred to as “ROVA,” meaning the “rest of Virginia.” Both the term ROVA — treating rural as remainder after that which really matters — and McAuliffe’s neglect of rural voters suggests an urban dismissiveness of the rural. (He believed he had solidly blue NOVA, or Northern Virginia, stitched up.) It’s an attitude that permitted Glenn Youngkin to gain the governor’s mansion; Youngkin outperformed Trump’s 2020 numbers in rural places, giving him an edge McAuliffe could not overcome when he got less suburban support than he’d anticipated.

Fetterman, similarly, will have to rack up huge margins in Philadelphia and Pittsburgh if he doesn’t chip away at Republican dominance in the hinterlands. It’s even possible that his strategy to cultivate support from across the state may be an added attraction to progressive metro voters; after all, the every-county approach has a unity vibe that may appeal to folks all along the rural-urban continuum.

Indeed, the election outcome could turn on mid-sized metropolitan counties like York (where Fetterman grew up) and Lancaster, where tens of thousands of votes are at stake. Those counties, considered part of the neglected “T” because they’re not Pittsburgh and Philly, were the last two places Fetterman visited before his stroke. More than 64,000 Democratic votes were cast in York and Lancaster counties combined in the primary. That’s more than the margin of Hillary Clinton’s 2016 Pennsylvania loss. Fetterman carried those counties with 80 percent and 76 percent, respectively, of the Democratic vote.

Fetterman still has his work cut out for him, of course. A national survey in February showed that two out of three rural voters view the Democratic Party unfavorably. Fetterman’s opponent, Republican nominee Mehmet Oz (television’s “Dr. Oz”), thus has some ready-made traction in the state’s rural reaches because of the “R” by his name on the ballot. There’s also the matter of Trump’s endorsement of Oz, though Oz has recently been distancing himself from the former president.

With Fetterman still recovering from his stroke, he’s unlikely to get back to each of Pennsylvania’s counties before November. But it probably doesn’t matter. Fetterman has already accumulated critical capital in the “T”, which may be enough to counter the toxic “D” by his name. And his unconventional rural strategy — as much as his unconventional persona — could help give him the “W” in a tight race, one with huge national implications for the balance of the Senate.

July 22, 2022

How the Anti-Abortion Movement Remade America

[Cross-posted from Commonwealth Club Podcast]

UC Davis Professor of Law Mary Ziegler is one of the world’s leading authorities on the U.S. abortion wars and the history of reproductive rights in this country. Since the leak of a draft of a Supreme Court majority opinion that would overturn Roe v. Wade and the guaranteed right to an abortion, Ziegler has been one of the most sought-after experts on this issue.

Ziegler's timely new book Dollars for Life: the Antiabortion Movement and the Fall of the Republican Establishment, explores how the antiabortion movement remade the Republican Party and led to this current historic moment. She traces how the anti-abortion movement helped to revolutionize the rules of money in U.S. politics and persuaded conservative voters to focus on the federal courts. Ziegler offers a surprising new view of the slow drift to extremes in American politics and says it had everything to do with the strange intersection of right-to-life politics and campaign spending. Her previous books have explored the legal history of Roe v. Wade and the role of privacy rights in the abortion debate.

At a historic time that might mark a turnaround in abortion rights, The Commonwealth Club is pleased to host a true expert on the topic and this historic moment. You won't want to miss this important conversation. LISTEN to the episode.

SPEAKERS

Mary Ziegler

Professor of Law, UC Davis School of Law; Author, Dollars for Life: the Antiabortion Movement and the Fall of the Republican Establishment

Vikrum Aiyer

Member, Inforum Advisory Board—Moderator

July 14, 2022

Systemic Racism in the U.S. Immigration Laws

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

In 1998, the Indiana Law Journal published my analysis of race and the U.S. immigration laws.  The Journal just published my latest article on the topic.  (A teaser for the article can be found here.).  The article is based on, and inspired by, my remarks in April 2021 at the Jerome Hall Lecture at Indiana University Maurer School of Law
 

This Essay analyzes how aggressive activism in a California mountain town at the tail end of the nineteenth century commenced a chain reaction resulting in state and ultimately national anti-Chinese immigration laws. The constitutional immunity through which the Supreme Court upheld those laws deeply affected the future trajectory of U.S. immigration law and policy.

Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of unabashedly racist legislation that commenced a long process of barring immigration from all of Asia to the United States. In upholding the Act, the Supreme Court in an extraordinary decision that jars modern racial sensibilities declared that Congress possessed “plenary power”—absolute authority—over immigration and that racist immigration laws were immune from judicial review of their constitutionality.

The bedrock of U.S. immigration jurisprudence for more than a century and never overruled by the Supreme Court, the plenary power doctrine permits the treatment of immigrants in racially discriminatory ways consistent with the era of Jim Crow but completely at odds with modern constitutional law. The doctrine enabled President Trump, a fierce advocate of tough-as-nails immigration measures, to pursue the most extreme immigration program of any modern president, with
devastating impacts on noncitizens of color.

As the nation attempts to grapple with the Trump administration’s brutal treatment of immigrants, it is an especially opportune historical moment to reconsider the plenary power doctrine. Ultimately, the commitment to remove systemic racism from the nation’s social fabric requires the dismantling of the doctrine and meaningful constitutional review of the immigration laws. That, in turn, would open the possibilities to the removal of systemic racial injustice from immigration law and policy.

July 11, 2022

Deconstructing the Supreme Court's Climate Change

[Cross-posted from the Daily Journal]

By Richard M. Frank

The Supreme Court's recent climate change decision has been characterized by legal observers as "seismic" "transformational" and "a bombshell." All of those descriptions are apt.

The Court's 6-3 ruling holds that the U.S. Environmental Protection Agency lacks authority under the federal Clean Air Act to transition existing American power plants from fossil fuels to natural gas and, especially, to renewable energy sources. The decision will not have an immediate, dramatic effect. But long-term, the Court's ruling in West Virginia v. EPA, June 30, 2022 Daily Journal D.A.R. 6892, will severely cripple the federal government's ability to reduce America's greenhouse gas emissions and fulfill President Joe Biden's 2021 pledge to the world community that the U.S. will meet aggressive GHG reduction goals. And the new, radical constitutional doctrine the Court majority announces in rejecting EPA's GHG emission regulations promises to severely hamstring a wide array of federal regulatory agencies beyond EPA, and effectively to transfer considerable authority from the Executive Branch to the federal courts.

The West Virginia case has its origins in efforts by the Obama Administration to curb GHG emissions from "stationary sources" such as power plants. President Barack Obama's EPA promulgated its "Clean Power Plan" (PP) in 2015 to reduce substantially GHG emissions from American power plants the second largest contributor to the nation's overall GHG emissions output (behind only the transportation sector). Invoking CAA section 111(d), EPA proposed a complex set of regulatory mandates: some designed to improve pollution control technology of individual power plants and, far more controversially, industrywide reforms "beyond the fence line" to incentivize transition of coal-fired power plants to natural gas and ultimately, renewable energy sources.

EPA's CPP never took effect. The power industry, coal companies and a coalition of 27 "red" states immediately sued to halt its implementation. Remarkably - and in an unprecedented action - the U.S. Supreme Court in 2016 issued a "Shadow Docket" order preventing the CP from taking effect, before the lower federal courts even had an opportunity to consider its legality after full briefing and oral argument.

At that point, politics intervened. After the Trump Administration took office in 2017, it asked and the D.C. Circuit Court of Appeals agreed to hold the litigation in abeyance while the Trump EPA reconsidered the CPP. In 2019, the Trump Administration ultimately repealed the CPP, declaring that it exceeded EPA's legal authority under the CAA. In doing so, Trump's EPA advanced a novel constitutional doctrine long advocated by conservative scholars and law firms such as the Pacific Legal Foundation: the so-called "major questions doctrine." Under that theory, the Trump Administration argued, courts "expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance." The CPP, adopting an industry-wide approach to wean the power industry off its historic reliance on coal and natural gas in favor of renewable energy sources, presents such a "major question," asserted the Trump Administration. And, it maintained, in enacting CAA section 111(d) in 1970 Congress had not "spoken clearly" to delegate to EPA the regulation of GHG emissions in such a sweeping manner.

"Blue" states, including California, and environmental organizations promptly sued to challenge the Trump Administration's revocation of the CPP. Of critical importance, the red states that had previously challenged the Obama Administration's CPP intervened in the new lawsuit to help defend the Trump EPA's recission of the CPP. In early 2021 - on the last full day of Trump's term in office - the D.C. Circuit invalidated the Trump EPA's revocation of the CPP. It is from that ruling that the intervenor red states successfully sought review in the Supreme Court.

On the final day of the Court's just-concluded term, the Court ruled that the CPP was not authorized under the CAA. Chief Justice John Roberts majority opinion on behalf of the Court's 6-member conservative bloc first summarily rejected the Biden Administration's argument that certiorari had been improvidently granted: Biden's Solicitor General had advised the Court that it had no intention of restoring the CPP, and instead planned to develop its own regulatory program to reduce GHG emissions from U.S. power plants.

Turning to the merits, Chief Justice Roberts began by embracing the "major questions doctrine" that the former Trump Administration and its red state allies had advocated. West Virginia is, in fact, the first formal decision in Supreme Court history to explicitly adopt that principle. (The Court had alluded to the doctrine in a couple of earlier, per curiam orders issued in cases striking down the Biden Administration's COVID- prompted eviction moratorium and vaccination mandate for federal employees.)

Roberts proceeded to conclude that the federal government's efforts to comprehensively regulate GHG emissions from U.S. power plants have "vast economic and political significance;" that Congress, in enacting section 111(d) of the CAA, had not clearly indicated its intent to apply its delegated statutory authority to encompass industrywide power plant GHG reduction efforts by EPA; and that the relevant provisions of the CP therefore exceed EPA's statutory authority under the CAA and the majority's newly-minted major questions doctrine.

Justice Gorsuch penned a noteworthy concurring opinion, applauding the Court's support of the major questions doctrine and urging federal courts to apply it prospectively in a muscular fashion to curb perceived excesses of the federal administrative state." It will be interesting to see how many other members of the Court's conservative wing similarly embrace such an expansive application of the doctrine prospectively.

Justice Elena Kagan (joined by Justices Stephen Breyer and Sonia Sotomayor) issued a lengthy, pointed and to this observer - persuasive dissent. She castigated the majority's adoption of the major questions doctrine as an unprincipled creation by conservative justices who profess their belief in judicial restraint and a textual application of the Constitution. Kagan's dissent went on to analyze in considerable detail how and why EPA's interpretation of CAA section 111(d) is fully consonant with Congress' intent and delegated authority to EPA.

So, what are the short- and long-term implications of the Supreme Court's West Virginia v. EPA decision?

In the short term, it's back to the climate change drawing board for the Biden Administration. EPA was already exploring how to regulate GHG emissions from stationary sources under the CAA before last week's Supreme Court decision. President Biden has directed his EPA and Justice Department to confer on West Virginia's impact and return to the Oval Office with recommendations as to how to proceed. (One intriguing potential option is to utilize section 115 of the CAA; that provision allows EPA to regulate pollution emitted from U.S. sources that endangers public health and welfare in foreign nations. GG emissions would certainly seem to qualify.)

But let's be clear: West Virginia severely constrains the Biden Administration's regulatory options: the decision makes clear that EPA lacks the authority under CAA section 111(d) to regulate the power industry's GHG emissions on an industrywide, "outside the fence line" basis.

That leads to the related but important question: what about pursuing new climate change legislation from Congress? The short answer is that that's not going to happen in the foreseeable future. Climate change is only one of many issues on which Congress is hopelessly deadlocked and deeply factionalized. The justices, of course, know this as well as anyone.
So the majority's suggestion that Congress can simply resolve the issue by clarifying the CAA or enacting new climate change litigation is disingenuous.

Leaving aside the CAA and climate change, the majority's formal articulation and embrace of the major questions doctrine has profound, long-term implications for American constitutional and administrative law. It seems inevitable that the doctrine will be invoked in virtually every major litigation challenge to future federal regulatory initiatives - not just environmental programs, but also in public health, financial, civil rights, election, taxation and numerous other regulatory contexts. Among the biggest ambiguities created by West Virginia is what, exactly, makes a particular federal regulation sufficiently important, or "major," so as to trigger application of the doctrine? As Justice Kagan's dissent observes, the majority's option does not provide any real guidance.

Moreover, and especially in light of Congressional gridlock and political stalemate, the West Virginia decision significantly enhances the power of the federal judiciary at the expense of the Executive Branch. Without explicitly saying so, the case severely erodes separation of powers principles that the Constitutional framers considered so essential to the success of American democracy.

Finally, and ultimately most significantly, the West Virginia decision seriously undermines America's ability to reduce its disproportionately large share of global GHG emissions. As a result of the Court's decision, it's highly unlikely that the United States will be able to meet the ambitious GHG reduction goals President Biden pledged to meet at last year's global climate summit in Glasgow. That, in turn, greatly diminishes America's future ability to play a leadership role in the greatest environmental challenge of our time. And, worse still, it undermines the ability of the global community as a whole to prevent a climate catastrophe.

July 11, 2022

Constitutional Obligations as a Counter to Zero-Sum Thinking

[Cross-posted from The Hill]

By Alan Brownstein

The Constitution is a legal document that structures government and protects rights. Sometimes overlooked, however, is the reality that it is also a statement of values and principles on which the structure of government and the protection of rights is based.

These values and principles are not law — but they can suggest non-legal obligations that the government owes to its citizens or that citizens owe to each other.

Sometimes the obligation is stated explicitly as the foundation for the protection of a right. For example, a few months ago a racist killer influenced by white supremacist ideology and so-called “replacement theory” massacred Black Americans at a super market in Buffalo, N.Y. We know from bitter experience that white supremacy and replacement theory leads to violence and murder. We know this. Yet our constitutional system prohibits government from suppressing such pernicious speech.

The First Amendment generally prevents government from prohibiting speech that may influence individuals to commit crimes — even horrible crimes like the massacre in Buffalo. As the Supreme Court made clear in the seminal case of Brandenburg v. Ohio, this kind of speech, characterized as incitement, can only be prohibited if it will lead to imminent violence or unlawful conduct. This is a bedrock First Amendment rule today. The speech that warped the mind of the murderer in Buffalo cannot satisfy this incitement test because it did not immediately result in violence.

It is important to understand the reasoning justifying this meaning of incitement which protects such evil speech. The principle underlying the Brandenburg rule imposes an implicit obligation on the State and the people, a principle that requires us to counter evil counsel as loudly and forcefully as we can.

As Justices Holmes and Brandeis wrote in dissenting opinions that eventually led to the Brandenburg decision, dangerous speech could only by suppressed by government if the violence and other unlawful conduct it is inciting is imminent. If there is time to counter and refute evil counsel before it leads to harm, the constitutionally appropriate remedy for bad speech is good speech — not the prohibition of speech.

Thus, the foundation of this key free speech doctrine is grounded in the expectation that good people will not remain silent when they are confronted with evil speech.

It relies on the willingness of good people to speak up when there is time to do so and counter evil counsel to reduce the likelihood that bad speech will lead to unlawful acts or violence.

If good people are silent, evil speech cannot be effectively refuted.

Our free speech doctrine in a very real sense imposes a constitutional obligation on good people to speak up.

And that obligation falls with special weight on those of us who can speak the loudest and can be heard by the largest audiences. Government officials, among others, are in this category of speakers. Their official positions give them a microphone which extends the reach of their voice. The First Amendment doctrine about incitement prevents officials from silencing evil ideas — but the reasoning underlying that doctrine obliges them to speak up loudly against evil speech.

Other private speakers with loud voices — such as media and the clergy — are similarly obligated. And the average citizen’s voice, joining with others, needs to be heard as well.

Consider another principle underlying accepted constitutional law. The Fifth Amendment (made applicable to the states by the Fourteenth Amendment) explicitly requires the government to pay just compensation to the owner when it takes private property. But what justifies this compensatory requirement? The Supreme Court in Armstrong v. United States explained that the purpose of this provision was “to bar Government from forcing some people alone to bear public burdens which in all fairness and justice, should be borne by the public as a whole.”

This principle extends beyond compensating property owners for takings. It supports an implicit obligation to compensate — or at least mitigate — the costs incurred when the state furthers the public good in a way that disproportionately burdens individuals or a small group. Consider some examples. Government often accommodates religious exercise either as a result of constitutional mandates or as a discretionary political act. While the protection of religious exercise is particularly valuable to the individuals whose religious practices are being burdened, a strong argument recognizes that religious liberty is a public good. Our society in general benefits in important ways from our commitment to religious freedom.

Sometimes, however, accommodating religion imposes costs on identifiable third parties. In Burwell v. Hobby Lobby, a major issue involved the cost to women employees who would lose valuable insurance coverage for medical contraceptives if employers were exempt on religious grounds from the regulations requiring them to provide such health insurance coverage to their employees. If, as I suggest, religious liberty is a public good, a theory of constitutional obligation would support the government (the public as a whole) assuming the cost of such coverage for the women employees denied insurance coverage to protect the religious liberty of their employers.

Or consider the baker who, for religious reasons, will not create a cake to celebrate the wedding of a same-sex couple. If we exempt the baker from the requirements of anti-discrimination laws in the name of religious freedom, does the state have an obligation to alleviate the cost to the victims of the baker’s discrimination? In this situation, monetary or material compensation may not be feasible. But there may be other ways for the government to mitigate the burden same-sex couples will experience. Perhaps the government could make available through web sites a list of the wedding cake bakers in the area who would welcome the patronage of same-sex couples.

A final example involves state laws banning abortion, which require pregnant women to carry a fetus to term and birth. Here, because the woman wants to terminate her pregnancy, she is not a private beneficiary of the state law. The state believes by prohibiting abortion it is furthering the public good. Obviously, however, this law imposes very substantial burdens on women, including physical, psychological, and economic costs. The state and public will not be able to come close to sharing all of these costs. But it can do some things. For example, in the case of a fetus who will be born with severely debilitating ailments, the state could take on the responsibility of providing top quality medical care, assistance, and support for these children after birth.

Constitutional obligations, while not law, are derived from constitutional principles. They have many virtues, not the least of which is that they move us — perhaps only slightly but to some extent — away from constitutional controversies being entirely a zero-sum game.

June 30, 2022

Supreme Court’s ‘Remain in Mexico’ ruling puts immigration policy in the hands of voters – as long as elected presidents follow the rules

[Cross-posted from The Conversation]

By Kevin R. Johnson

In the very last decision of its latest term, the Supreme Court released a major ruling that not only clears a barrier to ending a signature policy of the Trump administration but also signals that the future of immigration policy is in the hands of the electorate.

In Biden v. Texas, the Supreme Court rejected an effort to prevent the current president’s rollback of a Trump-era policy that requires asylum seekers arriving at the U.S. southern land border to be returned to Mexico while their claims were being processed.

The 5-4 decision means that the case will be returned to the lower courts court. But it also makes clear that whoever is control of the White House has the power to change directions in immigration policy – even drastic reversals of policy. It follows that presidents can do the same in other substantive legal areas as well, such as civil rights and environmental protection.

The rights (and wrongs) of remain

The issue in Biden v. Texas was whether the Biden administration could dismantle a Trump administration policy formally known as Migrant Protection Protocols but widely referred to as the “Remain in Mexico” policy.

As part of an array of immigration enforcement measures, the Trump administration announced the policy in late 2018 in response to numbers of migrants arriving at the U.S.-Mexico border.

But the Migrant Protection Protocols came under scrutiny amid concerns over the safety and conditions to which asylum seekers were subjected in camps under the supervision of Mexican authorities. Human Rights Watch found the policy sent “asylum seekers to face risks of kidnapping, extortion, rape, and other abuses in Mexico” while also violating “their right to seek asylum in the United States.”

Yet an attempt by the Biden administration to eliminate the protocols was barred by the U.S. Court of Appeals for the Fifth Circuit. The circuit judges found that the Biden administration had violated immigration law requiring the detention of asylum seekers.

The Supreme Court rejected this ruling. In a majority opinion written by Chief Justice John Roberts – joined by Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor and Brett Kavanaugh – the court held that the Biden administration’s decision to terminate the Migrant Protection Protocols did not violate federal immigration law. The state of Texas had argued that ending the “Remain in Mexico” policy violated a provision that every asylum seeker entering the country be returned or detained.

In his dissent, Justice Samuel Alito argued that the statute requires mandatory detention of migrants at the border. Justice Amy Coney Barrett’s dissent expressed the view that the Supreme Court lacked the jurisdiction and that the case should be remanded back to the lower courts.

Avoid the arbitrary, cease the capricious

The Supreme Court’s decision means the case will be sent back to the lower court to decide, but with the removal of a major legal obstacle preventing Biden from ending the “Remain in Mexico” policy. The Supreme Court held that the immigration law does not require mandatory detention of all asylum seekers while their claims are being decided.

But moreover, the court made clear that the president has the discretion to change direction in immigration policy and continue, or end, policies of the previous president.

That might seem self-evident. But it comes after another 5-4 decision penned by Chief Justice Roberts – 2020’s Department of Homeland Security v. Regents of the University of California, which held that a president could not act irrationally in changing immigration policy.

In that decision, the Supreme Court found that the Trump administration had acted in an arbitrary and capricious fashion in rescinding the Obama administration’s Deferred Action for Childhood Arrivals – or DACA – policy. That policy provided limited legal status and work authorization to undocumented migrants who came to the country as children, so-called Dreamers.

In the court’s view, the Trump administration had not adequately considered the interests of the migrant children in deciding to rescind the policy and had given inconsistent reasons about the basis for the rescission.

That ruling provided fuel for states to challenge the Biden administration when it attempted to roll back some Trump-era policies. For example, Arizona, along with other states, challenged Biden’s attempt to abandon a proposed rule change by the previous administration that would tighten the requirements on low- and moderate-income noncitizens seeking to come to the U.S. Although the Supreme Court initially accepted review of the case, it ultimately dismissed the appeal and declined to decide the merits.

In the end, the Supreme Court’s decision in Biden v. Texas stands for the simple proposition that presidential elections matter when it comes to government policy. As long as an incumbent administration follows the rules – including rational deliberation of the policy choices in front of it – it can, the Supreme Court has said, change immigration policy.