June 29, 2020

Episode 42: "Police, Race, and Federalism"

[Cross-posted from]

By Elizabeth Joh

Episode 42 of the “What Trump Can Teach Us About Con Law” podcast: As people around the world continue to protest police brutality, Republicans and Democrats in Congress have proposed bills that would reform policing across the U.S. But in the American system, states are given a lot of latitude over law enforcement, down to the use of tactics like chokeholds and tear gas. Given the Constitution, what can the federal government actually do to make things better? Also, why was the ever-obscure Third Amendment trending last month? Listen to the episode

June 25, 2020

Immigration decisions in the 2019 Supreme Court term, upcoming cases in the 2020 term

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

The 2019 Term is not quite over, but the Court today decided its final immigration case.

Immigration proved to comprise a significant part of the U.S. Supreme Court's docket for the 2019 Term.  Eight decisions directly or indirectly address immigration issues.  The eight cases are a couple more than the Court's average number of immigration decisions in a Term. 

The case that received the most public attention (and hereherehere) was the Court's surprising rejection of the Trump administration's attempt to rescind the Obama administration's Deferred Action for Childhood Arrivals (DACA) policy The DACA case attracted more attention than almost any immigration case in recent years.  Although the legal issues decided by the Court in the case are relatively narrow, the political repercussions of the decision will shape the future of immigration reform.

The immigration decisions from the 2019 Term, with links to case information from SCOTUSblog, are listed below.  The Court devoted considerable attention to the judicial review of immigration matters and decided those cases in relatively conventional fashion.

1.  DACA

Department of Homeland Security v. Regents of the University of CaliforniaNo. 18-587 [Arg: 11.12.2019 Trans./Aud.; Decided 6.18.2020]; Trump v. NAACPNo. 18-588 [Arg: 11.12.2019 Trans./Aud.; Decided 6.18.2020]; Wolf v. VidalNo. 18-589 [Arg: 11.12.2019 Trans./Aud.; Decided 6.18.2020]

In a decision that surprised some Court watchers, the Court, in an majority opinion authored by Chief Justice John Roberts, held that the Department of Homeland Security’s decision to rescind the DACA policy was arbitrary and capricious in violation of the Administrative Procedure Act (APA). 

Some other aspects of the decision merit attention.  First, as an initial matter, the majority held that there were no jurisdictional hurdles to judicial review of the Trump administration's rescission of DACA.  Second, in Part IV of the the Chief Justice's opinion discussing the Equal Protection challenge to the rescission of DACA, Chief Justice Roberts wrote for only four justices; the plurality concluded that the pleadings did not give rise to facts leading to a reasonable inference that anti-Latina/o animus motivated the decision to rescind DACA.  Finding that the the Equal Protection claim should be allowed to be litigated, Justice Sotomayor did not join that part of the Chief's opinion.

2.  Cross-Border Shooting

Hernandez v. MesaNo. 17-1678 [Arg: 11.12.2019 Trans./Aud.; Decided 2.25.2020]

The Court held that the family of a young Mexican national who was killed by a U.S. border officer in a cross-border shooting, did not have a private right of action to sue.  This case had previously been to the Court and remanded for further consideration by the court of appeals.

Justice Alito, who wrote for the Court, summarized the facts of the case:

"The facts of this tragic case are set forth in our earlier opinion in this matter, Hernández v. Mesa, . . . (2017) (per curiam). Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was with a group of friends in a concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. The border runs through the center of the culvert, which was designed to hold the waters of the Rio Grande River but is now largely dry. Border Patrol Agent Jesus Mesa, Jr., detained one of Hernández's friends who had run onto the United States' side of the culvert. After Hernández, who was also on the United States' side, ran back across the culvert onto Mexican soil, Agent Mesa fired two shots at Hernández; one struck and killed him on the other side of the border."

3.  Judicial Review of the Application of Law to Undisputed Facts

Guerrero-Lasprilla v. BarrNo. 18-776 [Arg: 12.9.2019 Trans./Aud.; Decided 3.23.2020]; Ovalles v. BarrNo. 18-1015 [Arg: 12.9.2019 Trans./Aud.; Decided 3.23.2020]

Resolving a split in the circuits, the Court held that the phrase “questions of law” in the Immigration and Nationality Act’s 8 U. S. C. § 1252(a)(2)(D), includes the application of a legal standard to undisputed or established facts.

4.  Judicial Review and Expedited Removal

Department of Homeland Security v. ThuraissigiamNo. 19-161 [Arg: 3.2.2020 Trans./Aud.

The case raised the issue of the constitutionality of expedited removal of noncitizens.  The Trump administration has sought to expand expedited removal, which increased the importance of the Court's resolution of the case.  The issue is whether, as applied to the respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the suspension clause.  As Kari Hong summarized the issue in the case:

"In Department of Homeland Security v. Thuraissigiam, the government is asking the Supreme Court to uphold a system of limited and narrow judicial review over the expedited removal procedure. In 1996, Congress created the expedited removal process, along with other bare-bones administrative procedures, that privilege speed over process. In expedited review, one front-line immigration officer can make the immediate decision to deport someone without a hearing if that the person is not a citizen and cannot prove that they lived in the United States for the past two years. If the person expresses a fear of persecution, an asylum officer then conducts a `credible fear interview' to assess a potential claim. Only if a `significant possibility' exists that the applicant’s asylum claim would succeed, are they given a full immigration hearing."

A 5-4 Court, in an opinion by Justice Alito, held that, as applied to the case at hand, the expedited removal statute does not does not violate the provision of the U.S. Constitution barring suspension of habeas corpus.  Thuraissigiam, who was apprehended about 25 yards from the U.S./Mexico border after entering the United States without inspection, did not seek release from custody, but an additional opportunity to obtain asylum.  Applying an originalist approach to constitutional interpretation, the majority held that, because it applies to challenges to detention, the Suspension Clause did not apply to this case and that the 1996 immigration reforms barred judicial review of the Thuraissigiam's asylum claim.  The Court also rejected the arguments that Thuraissigiam's due process rights had been violated by the lack of a court hearing on his asylum claims.  In so doing, the majority invoked extreme plenary power cases, including Knauff and Mezei, which the U.S. government will likely find useful in the future in seeking to limit the rights of noncitizens seeking admission into the United States.    

5.  Judicial Review/Torture Convention

Nasrallah v. BarrNo. 18-1432 [Arg: 3.2.2020 Trans./Aud.; Decided 6.1.2020]

The Court held that 8 U. S. C. §§ 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to an order denying relief under the Convention Against Torture, which protects noncitizens from removal to a country where they would likely face torture. Torture Convention claims thus will continue to be subject to judicial review.

6.  Identity Fraud and Federalism

Kansas v. GarciaNo. 17-834 [Arg: 10.16.2019 Trans./Aud.; Decided 3.3.2020

The Court held that federal immigration law did not preempt the Kansas identity fraud statutes under which three undocumented immigrants were convicted  for using another person’s Social Security number on tax-withholding forms submitted to their employers. 

7.  Cancellation of Removal

Barton v. BarrNo. 18-725 [Arg: 11.4.2019 Trans./Aud.; Decided 4.23.2020].

The Court held that, in determining eligibility for cancellation of removal of a lawful permanent resident who commits a crime, an offense listed in 8 U. S. C. § 1182(a)(2) committed during the initial seven years of residence need not be one of the offenses of removal.  Jayesh Rathod for SCOTUSblog reviews the competing views among the justices about the (1) proper interpretation of the immigration statute; and (2) the treatment of eligibility for removal of noncitizens with criminal convictions.  In Rathod's view, Justice Kavanaugh's majority opinion "upholds [a] restrictive reading of [the] immigration statute, limiting relief to noncitizens facing removal."

The Immigrant Legal Resource Center provides this practice advisory on the technical cancellation of removal issues decided by Barton v. Barr.

8.  First Amendment/Immigration Representation

U.S. v. Sineneng-SmithNo. 19-67 [Arg: 2.25.2020 Trans./Aud.; Decided 5.7.2020]. 

The Supreme Court held that the Ninth Circuit abused its discretion in reaching out to decide a question never raised by the respondent (an immigration consultant) -- whether 8 U. S. C. § 1324(a)(1)(A)(iv) (making it unlawful to "encourage[] or induce[] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law) is unconstitutionally overbroad in violation of the First Amendment.  The Court did not address the First Amendment question in its decision.

As summarized by Jack Chin on SCOTUSblog,

The Supreme Court . . . resolved United States v. Sineneng-Smith without reaching the merits of the underlying First Amendment question, instead holding that the . . .  9th Circuit improperly injected the issue into the case. The court sent the case back for reconsideration based on the claims of the parties. Evelyn Sineneng-Smith had been convicted of violating 8 U.S.C. § 1324(a)(1)(A)(4), which prohibits `inducing or encouraging' unauthorized immigration. . . .  After her appeal had been briefed and argued in the 9th Circuit on more prosaic issues, the panel requested briefing on whether the statute was unconstitutionally overbroad, an issue Sineneng-Smith had not raised. . . . The 9th Circuit ultimately reversed the conviction because it found that the statute was overbroad, the ground that the court’s re-argument order had brought into the case. In an opinion by Justice Ruth Bader Ginsburg, a unanimous Supreme Court held today that `the panel’s takeover of the appeal' warranted reversal and remand for reconsideration in light of `the case shaped by the parties.'”

The 2020 Term

At least for now, there do not appear to be any major cases on the Court's docket for the 2020 Term.  The following immigration cases currently are set for consideration in the Supreme Court's 2020 Term:

1.  Relief from Removal

Pereida v. BarrNo. 19-438

This case raises the issue whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.   As described by Amy Howe on SCOTUSblog.

"The question arises in the case of Clemente Pereida, who was convicted in Nebraska of `attempted criminal impersonation,' a misdemeanor for which he was fined $100. The dispute centers on whether the conviction was a `crime of moral turpitude,' which would bar Pereida from applying for relief from deportation. The federal government agreed with Pereida that review should be granted, although it agrees with the U.S. Court of Appeals for the 8th Circuit that Pereida is not eligible for relief from deportation."

2.  Effectiveness of Notice to Appear

Niz-Chavez v. BarrNo. 19-863

This case is a followup to Pereira v. Sessions (2018), which addressed the effectiveness of a notice to appear that fails to comply with the statutory requirements.  The issue in Niz-Chavez is whether, to serve notice in accordance with 8 U.S.C. § 1229(a) and trigger the stop-time rule (the rule that the time stops for satisfying the time requirement for eligibility for relief from removal), the government must serve a specific document that includes all the information identified in Section 1229(a), or whether the government can serve that information in a series of documents issued at the time of its choosing. 

3.  Immigrant Detention and Bond Eligibility 

Albence v. Guzman ChavezNo. 19-897 

The issue in this case is whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. § 1231, or instead by 8 U.S.C. § 1226.  As John Elwood explained on SCOTUSblog, the distinction between the two provisions matters because under Section 1226 noncitizens generally have the right to a bond hearing, while the government argues that they do not have that right under Section 1231.

June 23, 2020

How quickly we forget: Of fathers and essential workers

[Cross-posted from CalMatters]

By Lisa R. Pruitt

The coronavirus pandemic has recently chipped away at the myth that the United States is a nation unstratified by class. The mid-March scramble for food and toilet paper drew our collective awareness to lowly supply chain jobs temporarily aggrandized as “essential.” 

The three months we’ve now spent in some degree of quarantine have proved long enough to see and publicly thank warehouse workers, grocery store clerks, and truck drivers – but also then to quickly forget them once we got our necessities stockpiled.  

The whiplash represented by this speedy cycle of seeing and then unseeing workers has been especially jarring for me because I’ve spent my life straddling two worlds: that of the ruling class, who generally enjoy the luxury of working from home and doing the stockpiling, and that of the working class, who grease the skids of our lives.   

For more than two decades, I’ve been a law professor at the University of California, Davis, where I write about race and class.  But I grew up in middle America, the daughter of a long-haul truck driver.  My father used to come to the Great Central Valley to pick up produce to deliver to points east.  I moved to the Valley to teach law.  My working-class childhood is now deep in my rear-view mirror, and my current milieu has socialized me over many years to be ashamed of it.

So I was surprised in the early days of sheltering in place when the New York Times ran an op-ed on the importance of truck stops and a front-page feature about a trucker who was continuing to drive as his wife and children hunkered down at home in Wyoming.  I was stunned by Marketplace’s attention to the industry, including an explanation of the pressing need for more truckers.  I could hardly believe my eyes when governors tweeted thanks to – of all folks – truckers.      

When logistics experts explained to the media that truck drivers are “skilled labor” who take months to train, I remembered my father, who I came to call Avery.  I never ceased to be amazed at Avery’s ability to thread the needle with his big rig, backing it between others at a crowded loading dock or negotiating a busy interstate highway.  

I grew up immersed in the gritty details of trucking:  fuel reports, air-ride seats, logbooks, CB radios, an unending cycle of breakdowns and repairs.  But we were proud to be a trucking family.  

My sister and I once decorated our father’s homemade birthday cake with a big rig, writing “Avery Pruitt Trucking” in frosting on the trailer.  One Christmas I cross-stitched an 18-wheeler and framed it to hang on the wall, a present for Avery.  Snapshots in family albums, even on special occasions like Easter, featured the big truck as backdrop.  The 1977 film “Smokey and the Bandit” –  starring Burt Reynolds and Sally Field – was affirming for us, as were trucking songs like C.W. McCall’s “Convoy,” which topped both pop and country charts in 1975. 

Back then, truckers seemed all-American, with appeal well beyond the down-market, redneck crowd that my current milieu associates with much blue-collar work.  This was, of course, before our nation thought and spoke in terms of red states and blue states, before cultural and political rifts divided coastal elites from the uncouth denizens of what we now denigrate as flyover country or, worse still, envisage as some monolithic Trumplandia. 

But even when pop culture was glamorizing trucking, I saw the toll it took on Avery.  The hand-to-mouth financial existence was stressful for all of us, the constant struggle to make the truck and trailer payments, to buy groceries and pay other bills.  Then there were the “little white pills” Avery took to stay awake; the cigarettes and all that cigarette smoke trapped in the cab of his truck; the beer he drank to wind down once he got home.   

Our father-daughter relationship became strained when I was a teen.  As I accumulated college and graduate degrees, the rift between us widened.  Avery didn’t have the capacity to appreciate what I was doing with my life, and I didn’t do a good job of affirming him for his hard work, for what he was accomplishing.  

Avery and I were both fighting the odds, striving to pull away from the sticky lower rungs of the socio-economic ladder to which we were born.  But as access to higher education was enabling me to win my struggle, Avery was losing his.  

The year I finished law school and started a PhD program, Avery had his first heart attack, a massive one that left him disabled at the age of 46.  He later succumbed to heart disease and emphysema.  Today, scholars who study long-term trends among workers like Avery would label his a “death of despair,” recognizing how his downward mobility was in a fatal feedback loop with alcohol, drugs and hopelessness.  

Avery was an extraordinarily hard-working and dependable cog in the American economy.  I have no doubt that if he were alive, Avery would have basked in the glow of truckers’ fleeting moment in the limelight this spring.  He loved trucking and would have relished being designated “essential,” but what Avery would have appreciated more was pay and security commensurate with his skilled labor.  

As the economy opens up and we seek some semblance of normalcy, we must not look away from workers like Avery.  We must remember those who emerged briefly from the shadows just a few months ago, as the scales of class privilege fell – at least temporarily – from the eyes of the ruling class.  Further, we must do more than tweet platitudes of gratitude.  We must find a way to give these workers – always essential, whether we said so or not – their fair share of the American dream.   

June 19, 2020

DACA, college and university students, and the future of U.S. immigration law

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson


At the end of the term when the Supreme Court hands down its most controversial rulings, the Supreme Court in a 5-4 decision, with the a majority opinion by Chief Justice John Roberts, rejected the Trump administration’s attempt to dismantle the Obama administration’s Deferred Action for Childhood Arrivals (DACA) policy. The much-anticipated decision promises to have monumental impacts on the lives of hundreds of thousands of young beneficiaries of DACA, including many college and university students. The decision also will deeply influence the future political dynamics surrounding immigrant reform. 

Ultimately, the Supreme Court held that the Trump administration’s effort to rescind DACA, without, among other things, considering the interests of the DACA recipients’ reliance on the policy, was arbitrary and capricious in violation of the Administrative Procedure Act.  


DACA did not emerge on a blank slate.  The policy came on only after years of political activism, ferment, and the repeated failure of Congress to pass comprehensive immigration reform.  One of the central bones of contention in the debate over reform has been whether to provide durable legal status to the approximately eleven million undocumented immigrants living in the United States.  

In lieu of the prolonged failure of Congress to enact immigration reform, the Obama administration in 2012 announced and implemented DACA.  Based on a long history of what is known as deferred action, that policy provided temporary relief from removal from the United States to nearly 800,000 undocumented immigrants, including many high school and college students, who came to the United States as children.  A form of prosecutorial discretion, deferred action exercised by the U.S. government in deciding which noncitizens to prioritize for removal, offers recipients limited protection from removal.

Critics vociferously attacked DACA as an unconstitutional “amnesty” that unlawfully intruded on the power of Congress to determine which noncitizens are subject to removal from the United States.  Despite the harsh criticism, various legal challenges to DACA failed to derail its implementation.

Making aggressive immigration enforcement the cornerstone of his 2016 presidential campaign, Donald J. Trump promised to dismantle DACA.  His threat struck fear in the hearts of beneficiaries of the policy, a fear that grew with the administration’s initial immigration enforcement efforts.  After months of discussion and debate, then-Attorney General Jeff Sessions, on behalf of the Trump administration, later announced the end of the policy. Controversy, protests, and legal challenges followed. 

Several lower courts enjoined the attempt by the Trump administration to end DACA.  From the beginning, many observers knew that the Supreme Court ultimately would determine its fate.  The cases slowly made their way to the Court.

DACA’s Impacts

DACA provided some modicum of relief from removal to hundreds of thousands of young undocumented immigrants.  The relief provided economic benefits to the nation and educational gains to DACA recipients.  Latinx persons comprise close to ninety percent of the DACA recipients; citizens of Mexico, El Salvador, Guatemala, and Honduras accounted for the vast majority of them.   (Four Justices who joined the majority found that in Part IV of the Chief''s opinion that there was insufficient evidence that DACA's rescission was motivated by racial animus: although joining most of Chief Justice Roberts' opinion, Justice Sotomayor did not join Part IV.).

Importantly, DACA recipients received work authorization.  As recipients, they were not subject to the bar on employment that applies to undocumented immigrants.  Work authorization made jobs available to DACA recipients.  That, in turn, made university students eligible for federal work study and other employment.  As a result, work authorization meant that DACA recipients were better able to fund their higher education.  In that respect, DACA promoted higher education for young immigrants.

In the wake of DACA’s implementation, University of California (UC) President Janet Napolitano, who as Secretary of the Department of Homeland Security under President Obama implemented the DACA policy, created the UC Immigrant Legal Services Center, which provides legal assistance to immigrant students and their family members on the ten University of California campuses.   As one of the proponents of the Center, I argued that it could provide invaluable assistance to students who, among other things, were applying for DACA and DACA renewals.  Housed at UC Davis School of Law, the Center represents the recognition by the University of California that many students and parents have immigration-related legal needs that warrant university assistance. 

The UC Immigrant Legal Services Center offers students an extensive set of on-campus legal services—from informational workshops to consultations to direct legal representation in immigration court.  In 2018/19, the Center reported that it opened nearly 1500 cases, consisting of 784 DACA renewal applications, 330 consultations, and 362 other forms of legal services.     Initially funded by UC, the Center now receives funds directly from the California legislature, which has declared California to be a sanctuary for immigrants.  

Undocumented students and DACA recipients can be found on each of the ten University of California system.  Many are undergraduates.  Others attend graduate and professional schools, including Law schools.  In some states, such as California, they are eligible to practice law.  

DACA had other significant ripple effects for immigrants in colleges and universities across the United States.  Indeed, DACA’s political impacts as a practical matter may dwarf the important, but limited, relief provided to its beneficiaries.  Specifically, the policy bolstered a potent grassroots movement seeking to vindicate the rights of immigrants.  With DACA’s future uncertain, some congressional leaders again raised the possibility of comprehensive immigration reform and a DREAM Act, a version of which has been proposed for roughly two decades and would afford a path to legalization for young undocumented college and university students.  An organized effort even emerged calling for the full-blown abolition of ICE, which in some ways mirrors the current calls to defund the police.  

DACA recipients are politically active on university campuses.  They prod universities to protect immigrants. University leaders, who often steer clear of controversial political debates, criticized the rescission of DACA, and its adverse impacts on students.   Not that long ago, colleges and universities did not broadcast the enrollment of undocumented students, fearful of a political outcry if their presence became common knowledge.  But politics have changed.  DACA recipients and immigrants generally are provided increasing protections by state and local governments from aggressive U.S. immigration enforcement.  Some advocates today contend that colleges and universities should be “sanctuaries” for immigrant students subject to the Trump administration’s aggressive immigration enforcement tactics.  

The University of California and many others filed lawsuits challenging the rescission of DACA.  165 colleges and universities filed a friend-of-the court brief in the Supreme Court opposing rescission and supporting the legal challenge to DACA’s dismantling.  

In the end, DACA emerged as representing something much more than the mere extension of a limited form of relief to young undocumented immigrants.  It today is nothing less than a lightning rod in the contemporary debate over immigration reform.  DACA recipients and their allies demand nothing less than simple justice for immigrants.

The Supreme Court

From the beginning, Supreme Court observers recognized that the justices likely would be divided about the lawfulness of the Trump administration’s attempt to end DACA.  A 5-4 Supreme Court found that the Trump administration’s decision to rescind DACA was arbitrary and capricious and sent it back for further consideration.  The Court did not decide the lawfulness of DACA and all seemed to agree that, if proper procedures were followed, the President could put an end to DACA.  However, in many respects, the majority’s reasoning mirrored the Court’s reasoning last year in holding that the Trump administration had not provided an adequate reason for including a question on U.S. citizenship on the 2020 Census.   The administration ultimately abandoned the citizenship question.  We will need to wait to see what the administration will do with the rescission of DACA sent back to it for reconsideration.

June 8, 2020

America's 'disability alibi'

[Cross-posted from the San Francisco Chronicle]

By Jasmine E. Harris

One thing should now be clear: In America, disability can be a license to kill, to surveil, to disregard human beings. George Floyd is just the latest example.

On June 1,  autopsy reports from the Hennepin County (Minn.) Medical Examiner and the Floyd family revealed that Mr. Floyd’s death was indeed a homicide, but diverged with respect to causation. The independent report — consistent with the viral videos capturing the encounter — found that Mr. Floyd died of “asphyxiation from sustained pressure,” or suffocation, after 8 minutes and 46 seconds of oxygen deprivation. By contrast, the county report concluded that Mr. Floyd’s cause of death was “cardiopulmonary arrest complicating law enforcement subdual, restrain, and neck compression.”

Mr. Floyd, in other words, had a heart attack while Minneapolis police officers restrained him, echoing Friday’s preliminary finding Mr. Floyd’s heart conditions (derivative of high blood pressure and cholesterol) played a central role in his death. This causal divergence is (and will be) significant in how the public and the criminal justice system assign liability and mete out punishment. Whether these underlying health conditions played a role in Mr. Floyd’s death, however, is not the key question. Should the presence or absence of disability make his death any less meaningful or problematic?

Disability offers a convenient, publicly acceptable alibi for bad actors in our country. It is a way of excusing heinous crimes and acts against our fellow human beings and, in the process, earning public sympathy or support. It is a visible reminder of what little value society places on the lives of people with disabilities. The recent news cycle demonstrates other examples of the disability alibi at work.

First, Miami-Dade police arrested and booked Patricia Ripley on a charge of first-degree murder for taking her 9-year-old autistic son, Alejandro, to a nearby canal and drowning him. In her defense, she reportedly told police officers, “he’s going to be in a better place.” Researchers estimate that every week, one person with a disability is murdered by a family member or caregiver who then receives greater leniency for “mercy killings.” Reports of family members assaulting or killing their disabled kin often fly under the radar, or worse, engender public support for the killer. A New York Times Magazine cover story from December, for example, framed the killing of an older woman with dementia by her husband as an act of “love.”

Second, YouTube personalities Myka and James Stauffer ignited a social media firestorm when they announced their decision to “rehome” Huxley, their 4-year-old autistic son adopted from China. The Stauffers explained to their YouTube followers that the international adoption service did not tell them that Huxley had “special needs” when they adopted him and, they said that though they provided therapies for him, Huxley’s needs were more than they could deal with.

Some followers criticized the family for using Huxley as a social media prop and then discarding him when he manifested typical behaviors associated with his disability. Others defended and praised the Stauffers for “having the courage to make such a heartbreaking and hard decision.” While adoptive families should be afforded some latitude to define and determine what a “fit” might look like to maximize the potential for success, these discussions should focus on balanced, evidence-based information and not on misperceptions about the quality of life a child with a disability (and the child’s family) will have in the future. For example, although people without disabilities would predict that the lives of those with disabilities are unhappy, research shows that people with disabilities report levels of happiness similar to those of nondisabled people.

Third, and perhaps the most literal deployment of the disability alibi, are the well-funded nursing facility lobbyists who have convinced 20 states to limit the legal liability of long-term care facilities for COVID-related harm. This request for safe harbor comes at a time when more than 28,000 people — a majority older adults and people with disabilities — have died of COVID-19 in these care facilities. To put this in perspective, this number represents almost a third of the country’s overall pandemic losses. The prospect of granting immunity to these facilities without legal process for those who bear the disproportionate costs of the pandemic shines an industrial-sized spotlight on the devaluation of disabled lives.

This is not the first time America has reached for the disability alibi in this pandemic. Consider, for example, health care rationing policies that explicitly excluded some people with cognitive disabilities from receiving life-saving treatment based on stereotypes about their quality of life relative to nondisabled people.

Disability advocates responded to national reports of shortages of ventilators and hospital beds by swiftly filing legal complaints with the U.S. Department of Health and Human Services to challenge rarely questioned (and well-defended) bioethics principles underwriting the rationing policies. Close examination of these arguments reveals an eerie similarity to the reasoning proffered by Supreme Court Justice Oliver Wendell Holmes in his infamous 1927 majority opinion upholding the constitutionality of Virginia’s compulsory sterilization law. Justice Holmes in Buck v. Bell reasoned that “the public welfare may call upon the best citizens for their lives” — a reference to soldiers — and, therefore, “it would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned” — a reference to people with disabilities.

While state rationing policies do not reflect the same vitriolic language on their face, the notion that disabled lives can and should be sacrificed for a greater public good remains true.

The presence of disability should never be a legal or moral alibi, an excuse for unethical or illegal actions. George Floyd and the countless others who have died at the hands of those charged with protecting them deserve better, they deserve justice. The differential treatment of people with disabilities on the basis of disability — in adoption, rehoming, rationing medical care, or “mercy killing” — is immoral and, in many cases, illegal. The Americans with Disabilities Actthe civil rights act for people with disabilities, turns 30 years old in less than two months. The ADA offers legal remedies for discrimination in employment, public services, and places of public accommodations. Yet the ADA’s promise of meaningful equality remains unfulfilled in large part because of widespread misconceptions about disability.

The death of George Floyd, too, despite what you will hear from reports and medical experts during Officer Derek Chauvin’s trial, should not be excused because America, once again, accepts the disability alibi.

June 1, 2020

The Meaning of DACA

By Kevin R. Johnson, Michael A. Olivas, and Shoba Sivaprasad Wadhia

[Cross-posted from ImmigrationProf Blog]

The Supreme Court will soon release an opinion on the lawfulness of the Trump administration’s choice to end DACA or Deferred Action for Childhood Arrivals (DACA). Former President Barack Obama rolled out DACA in June 2012 and the Department of Homeland Security implemented it two months later through a memorandum signed by then-Secretary Janet Napolitano.

DACA, based on a conventional concept of prosecutorial discretion, provided limited relief from removal – and work authorization -- to nearly 800,000 young undocumented immigrants through a discretionary tool called “deferred action.” All legal challenges to DACA, including one by campus immigration hawk former Maricopa County (Arizona) Sheriff Joe Arpaio, failed. How will the story of DACA be remembered? 

Much more than the sum of its parts, DACA will be remembered as an intriguing political story. For years, Congress introduced legislation known as the DREAM Act to provide legal status and a pathway to permanent residency for young undocumented college students. Congress has debated some kind of comprehensive immigration reform over two decades. All of these efforts failed. Said President Obama in announcing DACA “In the absence of any immigration action from Congress to fix our broken immigration system, what we’ve tried to do is focus our immigration enforcement resources in the right places.” DACA helped jump start the forceful movement across the nation calling for the vindication of the rights of immigrants.

Politics led to DACA’s demise. Donald J. Trump ran for President on a strident immigration enforcement ticket and promised to end the “unconstitutional” DACA policy. After the inauguration of President Trump and lobbying by some Republican leaders to keep DACA, the administration tried to terminate DACA and announced this “wind-down” in a press conference on September 5, 2017. Ultimately, political slogans, not reasoned analysis, were offered for the decision to end DACA.

The Trump administration’s arguments to the Supreme Court defending the end of DACA were also mired in politics. In a convoluted fashion that wended its way to federal appellate courts from coast to coast, the administration—through a series of Interim leaders—simply ignored the requirements of the Administrative Procedure Act and in an arbitrary and capricious way simply declared that DACA was “illegal,” and that they were required to end it.

The claim that DACA was somehow “illegal” was simply not true. No court found it to be, and for good reason. Deferred action is an instrument of discretion used to shield “low priority” immigrants from deportation. Deferred action enjoys a long history and legal foundation across both Republican and Democratic administrations. The administration could decide to end the policy it, but not by undertaking the judicial role of declaring their own exercise of discretion to be unconstitutional. As it did in the Department of Commerce v. New York (2019) in manufacturing a civil rights rationale for a U.S. citizenship question on the 2020 Census that would have chilled the participation of many Latina/os and immigrants, the administration simply misrepresented facts. The Supreme Court should require the Department of Homeland Security to undertake the searching analysis of facts and policy impacts, and honestly proceed, playing by the rules. Those with DACA have upheld their part of this bargain, and the administration must abide by open and fair procedures required by the law.

DACA will be reminisced as a story about human pain and hope. Said one DACA recipient one author spoke to described September 5, 2017, the day the end of DACA was announced as “just an awful day … Eventually you just get over the pain, get over the fear… and you continue to organize and protect your community in whatever way you can.” Throughout the time DACA has been tossed around in the courts, thousands continue to build families of their own, work in the frontlines of healthcare. and revitalize classrooms in colleges and universities across the country, a phenomenon we have seen first-hand as educators and administrators. DACAmented recipients are now our doctors, lawyers, and schoolteachers, repaying the investment this country has made in them.

If the Supreme Court fails to require the Trump administration to abide by the law, as we urge the Court to insist upon, those with DACA must live under a cruel Sword of Damocles, with no clear pathway to legal permanent residency. They deserve an honest policy determination, and the Supreme Court should insist on no less. Ultimately, it will take Congressional action to enact a DREAM Act, and comprehensive immigration reform to enable these young members a means to their rightful place in our society.  


Kevin R. Johnson is Dean of the University of California, Davis School of Law and Mabie/Apallas Professor of Public Interest Law and Chicanx Studies.

Michael A. Olivas is William B. Bates Distinguished Chair of Law, Emeritus, at the University of Houston Law Center and the author of Perchance to DREAM: A Legal and Political History of The DREAM Act and DACA.

Shoba Sivaprasad Wadhia is Samuel Weiss Faculty Scholar, Founding Director of the Center for Immigrants’ Rights Clinic at Penn State Law in University Park, and the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases and Banned: Immigration Enforcement in the Time of Trump.

June 1, 2020

Episode 41: "The Socially Distanced Supreme Court"

[Cross-posted from]

By Elizabeth Joh

"What Trump Can Teach Us About Con Law" podcast, episode 41: The Supreme Court may not be able to meet in person, but they are still doing business over conference call. This month, they've considered three cases about Donald Trump's finances, and whether they should be released to congressional committees and prosecutors in New York. What does history tell us about these cases which could have major consequences for executive power? Listen here

June 1, 2020

Trump administration reverses position on corporate liability under Alien Tort Statute

[Cross-posted from Just Security]

By William S. Dodge

In a brief filed last week, the Trump administration reversed its position on corporate liability under the Alien Tort Statute (ATS), urging the Supreme Court to grant certiorari in Cargill, Inc. v. Doe I and to hold that domestic corporations are not subject to suit for human rights violations under the ATS. The brief further urged the Court to reject the possibility of aiding-and-abetting liability under the ATS or, in the alternative, to hold that aiding-and-abetting liability is not available when the principal offense occurs outside the United States. Three months after the Canadian Supreme Court held that Canadian corporations may be sued in Canadian courts for human rights violations abroad, the Trump administration is advocating that the U.S. Supreme Court turn in precisely the opposite direction.

The ATS is a provision of the 1789 Judiciary Act giving federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In Sosa (2004), the Supreme Court recognized an implied cause of action under the ATS for well-established norms of human rights law. The Second Circuit subsequently held in Kiobel (2010) that corporate liability for human rights violations was not well-established enough to meet the Sosa standard. The Supreme Court granted certiorari to resolve the corporate liability question, but instead disposed of the case by applying the presumption against extraterritoriality to the ATS cause of action in Kiobel (2013). The Court granted certiorari again to decide the corporate liability question in Jesner (2018), but again avoided the question by holding that the ATS cause of action does not apply to foreign corporations.

The plaintiffs in Cargill have alleged that Cargill and Nestle operated a cocoa supply chain based on child slave labor, providing financial support and technical aid to growers in Ivory Coast while knowing that these growers used children as slaves. The Ninth Circuit noted that Jesner precluded ATS claims against foreign corporate defendants but not against the U.S. corporate defendants Cargill and Nestle USA. The Ninth Circuit further held that applying the ATS cause of action to these facts would be domestic rather than extraterritorial because the focus of the ATS includes conduct that aids and abets human rights violations, and plaintiffs had alleged that such conduct occurred in the United States.

In Kiobel and Jesner, two different administrations argued in favor of corporate liability under the ATS for human rights violations that meet the Sosa standard. In Kiobel, the Obama administration filed an amicus brief noting that actionable norms of international human rights law apply equally to natural persons and to corporations (at pages 20-21) and arguing that “[h]olding corporations liable in tort for violations of the law of nations” is “consistent with the common law backdrop against which the ATS was enacted and subsequently amended” (at page 26). In Jesner, the Trump administration filed an amicus brief reiterating that international-law norms of human rights apply equally to natural persons and to corporations (at pages 13-14) and arguing that “[t]he history of the ATS reinforces that it permits courts, in appropriate cases, to recognize common-law claims against corporations for law-of-nations violations” (at page 15).

The new brief from the Trump administration changes its position from just three years earlier. Significantly, the brief does not argue against corporate liability based on the content of customary international law. Although the Second Circuit in Kiobel (2010) framed the question as whether there is a “norm of corporate liability” under customary international law, I have explained both in scholarship and in an amicus brief that such a question makes no sense. The customary international law of human rights establishes norms of conduct; it does not dictate to States how those norms should be enforced. It is clear beyond doubt that international human rights norms (including the prohibition against slavery) apply to corporations. And therefore, it is open to the United States to apply those norms to corporations.

Instead, the new Trump administration brief argues against corporate liability solely as a matter of U.S. domestic law. Invoking separation-of-powers concerns, it argues that the decision to extend the ATS cause of action to corporations should be left to Congress (at pages 9-10). In a footnote, the administration explains its change of position on the ground that Jesner “rejected not only the government’s conclusion [with respect to corporate liability] but also its basic framework for analysis” (at page 9, note 3). This is not true. As I have noted previously at Just Security, the only parts of Justice Anthony Kennedy’s opinion in Jesner that commanded a majority were expressly limited to foreign corporations, and the concurring opinions by Justices Samuel Alito and Neil Gorsuch that provided the majority’s fourth and fifth votes explained that there are significant differences between ATS suits against foreign defendants and those against U.S. defendants.

It seems that I may not be the only one troubled by the unsupported change in the position of the United States. Deputy Solicitor General Edwin Kneedler, who was counsel of record for the United States in both Kiobel and Jesner, does not appear on the cover of the new Trump administration brief. That fact is particularly striking given his appearance on the covers of three other briefs filed the same day (herehere, and here).

It makes little sense to think that the act of incorporation should provide a shield from liability for human rights violations. Judge Pierre Leval’s separate opinion in Kiobel pointed out that, under the approach of the Second Circuit majority,

businesses will now be free to trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot’s political opponents, or engage in piracy—all without civil liability to victims.

It is not fanciful to think that U.S. corporations might engage in some of these activities. U.S. corporations have been sued under the ATS for torture and war crimes. And, of course, Cargill itself involves allegations that U.S. corporations aided and abetted slavery.

The new Trump administration brief also argues that the Supreme Court should reject the possibility of aiding-and-abetting liability under the ATS, although the petition for certiorari did not ask for review of this question and the Courts of Appeals have unanimously recognized such liability. As with corporate liability, the brief does not argue against aiding-and-abetting liability based on customary international law. The brief acknowledges that aiding-and-abetting liability is well-established under international law (at pages 14-15), as Chimène Keitner has also discussed in detail (at pages 81-94). Instead, the new Trump administration brief again invokes separation-of-powers concerns to argue that the decision whether to recognize such liability should be left to Congress (at pages 15-17).

It is important to recognize that the Trump administration’s position on aiding and abetting is not limited to suits against corporations but would apply equally to suits against natural persons. One of the leading international-law cases on aiding and abetting liability is the so-called Zyklon B case, in which individuals were tried and convicted by a British military tribunal for supplying poison gas to concentration camps “well knowing” that the gas would be used for extermination. Bruno Tesch was hung for aiding and abetting war crimes. But under the Trump administration’s position, he would not have been civilly liable.

In the alternative, relying on the presumption against extraterritoriality, the brief argues that aiding-and-abetting liability should not be permitted when the human rights violation itself occurred outside the United States (at pages 18-19). As I have recently explained, under the Supreme Court’s current approach, the presumption analysis proceeds in two steps. At the first step, a court asks whether the presumption has been rebutted by a clear indication of geographic scope. If not, then at the second step, a court asks whether applying the provision should nevertheless be considered domestic because whatever is the focus of the provision occurred in the United States (at pages 1608-09). Typically, ancillary criminal statutes, like aiding-and-abetting statutes, are given the same geographic scope as the underlying criminal offense (at pages 1616-17).

But the analysis with respect to the ATS cause of action is different. In Kiobel, the Supreme Court applied the presumption against extraterritoriality to the ATS cause of action. At step one, Kiobel concluded that the ATS had no clear indication of extraterritoriality. But oddly the Court never reached the focus question at step two. If it had done so—I have argued in the same article (at pages 1607-08)—it should have concluded that the focus of the ATS was either on providing redress for violations of international law by U.S. citizens or on providing redress for violations of international law more generally. In either case, the focus of the ATS cause of action would be nongeographic, and the location of the human rights violation would not matter. Of course, that is not what the Kiobel Court did. Instead, it simply announced that the claims in an ATS case must “touch and concern” the territory of the United States. Courts are divided on exactly what that means (as I have discussed here), but the Second and Ninth Circuits have reasonably concluded that conduct in the United States that aids and abets violations of human rights violations abroad is sufficient.

What should we make of the Trump administration’s basic argument that any decision to extend the ATS cause of action should be left to Congress? It is worth recalling that the second Bush administration argued in Sosa that any decision to create an ATS cause of action should be left to Congress. The Supreme Court in Sosa expressly rejected that argument as inconsistent with the understanding of the first Congress in 1789 that the common law would provide a cause of action for torts in violation of the law of nations, a legal category that would inevitably evolve and expand over time. The “leave it to Congress” argument has now been recycled as a refusal to extend the existing cause of action rather than as a refusal to create a new one.

Sosa held out the promise of an ATS cause of action whose contours were shaped coherently by customary international law. Such a cause of action would apply to a limited set of human rights norms, but it would apply to corporations (because international law does) and it would recognize aiding-and-abetting liability (because international law does). Such a cause of action would give effect to the understanding of the first Congress in 1789 that no express cause of action was required for torts in violations of the law of nations, but would of course be subject to control by today’s Congress, which could grant an express cause of action (as it did in 1992 with the Torture Victim Protection Act) or limit the implied cause of action (as it has never done so far).

Instead, the Supreme Court has produced an ATS cause of action that draws incoherent distinctions to dispose of particular cases under the guise of deferring to Congress. In Jesner, the Court distinguished between U.S. and foreign corporations—a distinction that even the new Trump administration brief complains is inconsistent with congressional intent (at page 11). The Trump administration is now urging the Court to draw further incoherent distinctions between corporations and natural persons and between liability as an aider and abettor and liability as a principal.

The Trump administration’s Jesner brief argued that the First Congress “did not have a good reason to distinguish” between suits against natural persons and suits against corporations. Pointing to a 1787 incident involving infringement of the rights of the Dutch ambassador, Jesner brief argued that infringement of such rights by a company “could perhaps best be vindicated (and compensation paid) through a private suit against that company” (at page 17).

There is similarly no good reason to think that today’s Congress would want to protect a modern-day Bruno Tesch, who aids and abets human rights violations, or would want to allow the act of incorporation to shield U.S. defendants from liability for torture or slavery. Those, however, are the distinctions that the Trump administration would have the Supreme Court draw, supposedly in deference to Congress.