June 2, 2021

Episode 53: 'Hate Crimes'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

On May 20, 2021, President Joe Biden signed the COVID-19 Hate Crimes Act into law. This bill made special mention of hate crimes against Asian Americans. This was in stark contrast to his predecessor, President Donald Trump, who used racist and xenophobic terms in relation to COVID-19. What exactly are hate crimes, and what does the Constitution say about them? Listen to episode 53 of the What Trump Can Teach Us About Con Law podcast.

May 11, 2021

RIP Cruz Reynoso, First Latino Justice on California Supreme Court

[Cross-posted from ImmigrationProf Blog]

By Kevin Johnson 

 

We have lost a civil rights icon and immigration reformer.  The first Latino on the California Supreme Court, Cruz Reynoso, passed away yesterday after a long illness. He celebrated his 90th birthday last weekend. 


Here is a story on Cruz's passing in the Los Angeles Times.

 

The Reynoso family, through son Len ReidReynoso, released the following announcement:

"On May 7, 2021, former California Supreme Court Associate Justice, law professor, and civil rights activist Cruz Reynoso passed away at age 90, surrounded by his family. Reynoso was born on May 2, 1931 in Brea, California, to Francisca Ramirez Reynoso and Juan Reynoso. Cruz was one of eleven children. Cruz along with his father and brothers worked as migrant farm workers. After high school, Cruz decided to go to college and attended Fullerton Community College, and then Pomona College. After graduation, Cruz was drafted into the U.S. Army where he served on the Counterintelligence Corp. While serving in the Army, Cruz was stationed in Washington D.C., where he met his first wife, Jeannene Harness. They married in 1956 and raised four children together. Jeannene passed in 2007, and in 2008 Cruz married Elaine Rowan. Elaine passed in 2017.

Cruz earned his law degree from Boalt Hall at UC Berkeley in 1958. After which he practiced law in El Centro, California. In 1968 Cruz became the director of California Rural Legal Assistance, the first state-wide legal services program. In 1972 Cruz became a law professor at University of New Mexico. In 1976, Governor Brown appointed him to be a Justice of the 3rd District Court of Appeals. In 1982, Brown appointed Cruz to be the first Mexican American to serve on the State Supreme Court. After leaving the Court in 1987, Cruz practiced law once again. In 1991 Cruz began teaching law at UCLA. In 2001 UC Davis offered Cruz the Boochever and Bird Chair designed to promote freedom and equality. Cruz accepted and taught at UC Davis until 2017.

Cruz worked for the Equal Employment Opportunity Commission under the Johnson administration, and was appointed by President Carter to serve on the Congressional Select Commission on Immigrant and Refugee Policy. President Clinton appointed Cruz to be the vice-chair of the U.S. Commission of Civil Rights and in 2000 gave Cruz the Presidential Medal of Freedom for his work in Social Justice.  Cruz also served on Barack Obama’s transition team.

Cruz’s life passion was creating a more just society. He fought for equal rights for under-represented populations, legal access for the poor, workers rights, immigration reform, and voting rights. When not fighting legal battles, Cruz loved working on his ranch in Sacramento County. Cruz also loved reading about history and loved to draw. Abby Ginzberg produced an award-winning film about Cruz’s life titled “Sowing the Seeds of Justice.”

Cruz is survived by four brothers, four sisters, his four children and their spouses (Trina and Duane Heter, Ranene and Bob Royer, Len and Kym ReidReynoso, Rondall and Pamela Reynoso) along with two stepchildren and their spouses (Dean and Laudon Rowan, Hali Rowen and Andy Bale), seventeen grandchildren, three step-grandchildren and two great grandchildren. Cruz is greatly loved and will be greatly missed. In lieu of flowers feel free to donate to the Cruz and Jeannene Reynoso Scholarship for Legal Access.

I had the honor of being Cruz's colleague for years at UC Davis.  We first met when he was a Justice on the California Supreme Court and I was a newly-minted attorney working in San Francisco.  Later, I had a chance to get to know him as a colleague at UC Davis School of Law, where Cruz ended his illustrious and path-breaking career.  As two early risers, we talked in the mornings regularly about current events, law, politics, families, taquerias, and the like.  As Cruz often said, he had a "justice bone" that was quick to challenge injustice.  He was as decent and genuine as anyone I have ever known and will be missed dearly.


Cruz came to UC Davis after a stint at UCLA School of Law.  Then-Dean Rex Perschbacher made it his mission to bring Cruz to UC Davis.  Besides teaching and writing (including a partially completed autobiography), Cruz was active in the UC Davis and greater community.  He, for example, chaired a task force reviewing the police use of pepper spray against protesters. Cruz also investigated the killing of a farmworker by  Yolo County law enforcement.  Cruz once told me that he found civil rights work more rewarding than the "boring" work of completing his autobiography.  


Upon Cruz's retirement, I had a fascinating interview with him for the UC Davis archives.  Here is the video.


RIP Cruz Reynoso.


KJ


May 10, 2021

Justice Cruz Reynoso's Rural Life

By Lisa Pruitt

Cruz Reynoso, former California Supreme Court Justice and my colleague at UC Davis School of Law for two decades, died a few days ago at the age of 90.  Many are offering remembrances of Reynoso -- who the faculty and staff at the law school knew as just "Cruz"-- and it's interesting for me as a ruralist to see the number of references to "rural" in his life's story.  

Of course, Reynoso famously led California Rural Legal Assistance (CRLA), the "first statewide, federally funded legal aid program in the country."  That was during the heyday of Cesar Chavez and Dolores Huerta's organizing in the 1960s.  CRLA provides free legal services to farmworkers.  In California, "rural" is largely conflated with agriculture in the popular imaginary (though there are far less densely populated and more remote California locales than its agricultural valleys), and the organization's website articulates its mission as helping “rural communities because those communities were not receiving legal help.” 

The tumultuous history of that organization under Reynoso's leadership is recounted in a Los Angeles Times story

Then-California Gov. Ronald Reagan repeatedly vetoed federal funds for the California Rural Legal Assistance while Reynoso headed the office and even signed off on an investigation that accused the nonprofit of trying to foment murders and prison riots (the investigation went nowhere).

Among other achievements during his leadership, Reynoso "oversaw eventually successful efforts to ban the short-handled hoe, which required farmworkers to stoop and led to debilitating back problems, and DDT, the deadly agricultural chemical."  

The Sacramento Bee reports on one of CRLA's big litigation victories under Reynoso's leadership, Diana v. California State Board of Education:  


It centered on Latino children who were incorrectly assessed by their school and labeled mentally challenged. The pupils were funneled into special education classes when, in reality, they were simply new English learners. CRLA lawyers filed a class-action lawsuit on behalf of students in the Monterey County town of Soledad.


“CRLA won a consent decree that allowed non-Anglo children to choose the language in which they would respond on IQ tests,” wrote the Salinas Californian in 2016. “It banned verbal sections of the test. It also required state psychologists to develop an IQ test appropriate for Mexican Americans and other non-English-speaking students.”

This column by Gustavo Arellano in the Los Angeles Times recounts Reynoso's childhood -- including early activism -- in Orange County, which then included significant rural stretches: 

[Reynoso's] family lived in a rural part of La Habra, where the Ku Klux Klan had held the majority of City Council seats just a decade earlier and Mexicans were forced to live on the wrong side of the tracks. Reynoso’s parents and neighbors had to travel a mile to the post office for their mail because the local postmaster claimed it was too inconvenient to deliver letters to their neighborhood.


Reynoso didn’t question this at first — “I just accepted that as part of the scheme of things,” he’d tell an oral historian decades later, in 2002.


But one day, a white family moved near the Reynosos and immediately began to receive mail. The teenage Cruz asked the postmaster why they were able to receive mail, but his Mexican family couldn’t. If you have a problem with this, the postmaster replied, write to her boss in Washington D.C.

And write a letter to the U.S. Postmaster General is exactly what Reynoso did.  According to a story released by UC Davis on the occasion of Reynoso's death: 

He wrote out a petition, gathered signatures, and successfully lobbied the U.S. Postmaster General in Washington, D.C., for rural mail delivery.

The obituary in the Los Angeles Times notes that Reynoso continued to live a rural life, even while working in Sacramento and Davis.  He "had a 30-acre spread in the agricultural Sacramento County town of Herald," population 1,184.The L.A. Times also reports that, as children, Reynoso and his 10 siblings worked summers in the fields with their parents. 

But the rural fact that leapt out at me most prominently was this line from the UC Davis story about what Reynoso did after finishing law school at UC Berkeley:

Justice Reynoso and his wife, Jeannene, moved to El Centro, in California’s Imperial Valley, where he started his own practice.


Today, Imperial County and El Centro, its county seat, are legal deserts--and they probably were back then, too.  Just imagine a UC Berkeley Law or UC Davis Law grad going to El Centro and hanging out a shingle in 2021?  It's nearly unthinkable, though a few probably go there each year to work for legal aid organizations like CRLA.  If it were more common to follow such a career path -- and for legal educators to prommote and honor those paths -- the Golden State would not be facing a rural lawyer shortage, with impoverished communities of vulnerable workers like the Imperial Valley suffering most as a consequence of that deficit.    


A Sacramento Bee column about Reynoso by Marcos Breton on the occasion of Reynoso's death features several remarkable photos.  These include one of Reynoso at the Herald property in 2000 with his then-young grandchildren; Reynoso was wearing overalls, a signifier of his rural authenticity.  The photo was taken by a Bee reporter the year he was awarded the Presidential Medal of Freedom and previously published as part of the paper's reporting on that honor.  


Speaking of that authenticity, I always appreciated Cruz's frequent use of the word "folk" to refer to groups of people, or the populace generally. Indeed, I see the Spanish translation is "la gente," meaning "people, town, dweller."  For me, his use of "folk" provided implicit permission to use that word and its plural, both terms I'd grown up with but later excised from my professional vocabulary becuse I had thought them too colloquial.  


Cruz was as approachable to students as he was to faculty and staff.  We often saw him walking to the Silo (an eatery on campus) with a group of students for lunch.  And in my first year at UC Davis, 1999-2000, when Cruz was visiting from UCLA's law school, he gamely agreed to participate in a student-sponsored moot court event called "Battle of the Giants," which featured two professors playing the role of advocates in a mock appellate argument.  It took a while for the student organizers of the event to get someone to agree to be the opposing "giant" (eventually, I reluctantly agreed), but Cruz had not hesitated to take on this time-consuming task, one little valued by the law school administration.

 

Cruz was very gentle in how he engaged and educated people, which I believe often rendered him particularly persuasive. Many years ago, I heard him say to a group of students, in his typical, soft-spoken way, "No human being is illegal." This was at a time whne the phrases "illegal alien" and "illegal immigrant" were still widely used. Expressed in his calm, avuncular, matter-of-fact way, I'm sure he won over many, got them to think about the significance of language. It's quite a contrast with the ways in which so many in our educational institutions today "call out" or "cancel" each other in shrill and judgmental fashion, a tactic that often serves primarily to aggravate divisions.   

 

Given Cruz's commitment to students and education, it's not surprising that his family has asked that, in lieu of flowers, donations be made to the UC Davis student scholarship fund "for legal access" that honors him and his wife

August 24, 2020

Democrats must invest in the future of the party -- Latinos

[Cross-posted from The Boston Globe]

By Luis R. Fraga, Luz E. Herrera, and Leticia Saucedo

Last week, America watched a new type of Democratic National Convention. It was more representative of our country and we were glad to see Latino entertainers, workers, immigrants, mothers, daughters, and elected officials representing constituencies at different levels of government.

Who was not highlighted in a prime time speaking role was former presidential candidate and secretary of Housing and Urban Development in the Obama administration, Julián Castro. Representative Alexandra Ocasio-Cortez of New York was included only at the invitation of former presidential candidate and Senator Bernie Sanders. While she maximized her 90 seconds, party protocol ate up her speech time. Why did the DNC miss this opportunity to showcase the promise of a progressive Latino voice for the future of the Democratic Party?

Castro was the first presidential candidate to advance a police reform plan that called for a national use of force standard, sentencing reform, the end of qualified immunity, cash bail reform, and investment in public defenders, and diversion programs. He called for the federal government to seek accountability for excessive use of force months before George Floyd’s tragic death forced people across the political spectrum to publicly affirm that Black Lives Matter.

As the former mayor of San Antonio, Texas, the 7th largest city in the country, Castro made important contributions to improving the lives of Americans. He did not just present lofty ideas, he established policies to directly address them. Castro ran a bold presidential campaign that highlighted the plight of immigrant children detained and caged by the Trump administration on the US border. He advocated the repeal Section 1325 of the immigration code that makes it a crime for immigrants to enter the United States without legal status. He set the agenda on immigration which many other Democratic presidential candidates subsequently adopted.

As the only Latino candidate for president, Castro deserved more than an offer of a cameo in a pre-recorded panel, he deserved a keynote speech like other former presidential candidates. This is the source of concern; role models matter and are crucial in creating a pipeline of future leaders.

Just as the convention provided a platform to bring moderate Republicans into the Democratic Party tent, it was also an opportunity to appeal to the progressive elements — including Latino progressives — who make the Democrats attractive to so many. As party officials court the Republican base and more conservative sectors of the Democratic Party, they must also pay tribute and respect to all parts of the base if the party is to remain relevant, and thrive.

This year, 32 million Latinos will be eligible to vote in November 2020 — that is the largest non-white voting bloc and that is projected to grow as the overall Latino population becomes 28 percent of the US population by 2060. Some 800,000 Latinos turn 18 every yearNinety-three percent of these are US citizens by birth. It’s time to include Latinos at all levels of the political conversation, not only as political surrogates or as tools for a diversity photo-op, but as full members of the Democratic Party.

Latinos have not been elected to the highest office in America — yet. Giving Castro a primetime role at the DNC would have been an investment in the future of the Democratic Party, an acknowledgement that it regards Latinos as part of the movement. Not giving him or Ocasio-Cortez prominent roles is disheartening; accomplished Latinos must be included in a significant way.

The DNC has always counted on the Latino constituency to go along. A large percentage of Latinos will probably vote for the Democratic ticket this fall because the status quo is unacceptable. However, voting for the Democratic ticket in 2020 doesn’t mean Latinos will forget this slight.

Luis R. Fraga is a professor and director of the Institute for Latino Studies at the University of Notre Dame. Luz E. Herrera is a professor and associate dean of Experiential Education at the Texas A&M University School of Law.

July 10, 2020

Down with Confederate monuments, 'up with the stars'

[Cross-posted from The Hill]

By Alan E. Brownstein

During the national debate about American symbols and monuments, Donald Trump makes two claims: He argues it is an affront to our heritage to take down Confederate monuments and rename military bases honoring Confederate generals, and he also demands that everyone — including athletes and others protesting racial injustice in our society — must act in ways that are properly respectful of our flag.

The first argument makes little sense. The second is starkly inconsistent with the first.

Monuments memorialize individuals and events that deserve to be honored. They do more than describe the past. They assign value to it. To put it simply, all individuals who played a role in American history, every event of any magnitude, is part of American history. But it is absurd to suggest that all such aspects of our heritage deserve to be honored with monuments.

During the American Revolution, 15 percent to 20 percent of the colonists were loyalists who maintained their allegiance to the British Crown. They supported British forces. Thousands took up arms against the patriots fighting for our independence. These loyalists are part of our heritage. Should we memorialize and erect monuments to them?

During the early 1900s, millions of Americans were members of the Ku Klux Klan. They are part of our heritage too. Should we erect monuments to Klan leaders as well?

Playing a part in American history, standing alone, doesn’t justify erecting monuments to people or naming military bases after them. To deserve this kind of recognition, historical figures have to have done and stood for things worthy of our admiration over time. What did the leaders and generals fighting for the Confederacy do? What did they stand for?

First, they fought to dehumanize and enslave an entire race of people. That cause deserves our contempt. It should receive no badge of honor.

Second, they took up arms against our flag. If Donald Trump demands respect for and allegiance to the American flag, why in the world does he insist on protecting monuments to, and honors for, those who disgraced it?

Trump’s apparent commitment to the flag is so great that he wants flag burning criminalized. The Supreme Court held in Texas v. Johnson in 1986 that it violates the First Amendment to punish protestors who burn the American flag as symbolic speech. This was a 5-4 decision emotionally argued by the justices on both sides.

Then-Chief Justice William Rehnquist wrote a particularly passionate dissent. In it, he quoted in its entirety a poem titled “Barbara Frietchie” by John Greenleaf Whittier. Supreme Court justices do not typically recite poetry, much less entire poems, in their opinions. But Texas v. Johnson was a special case because the flag is a special symbol. The poem recounts an allegedly true story of how during the Civil War a Confederate army invaded the northern town of Frederick, Md. Seeing the American flag flying from the attic of Barbara Frietchie’s home, the rebel troops stopped and fired on it, and “rent the banner with seam and gash.” The elderly woman, Barbara Frietchie, took up the flag before it could fall and dared the soldiers below to shoot her, but to spare the flag.

Most law school case books do not include this poem when they publish the highly edited text of Texas v. Johnson. But for the many years I taught the First Amendment as a constitutional law professor, I always read the entire poem to my classes. I wanted my students to know not only the doctrine, but also the passion stirred by this case, and by the American flag.

I doubt Donald Trump has read either the Texas v. Johnson case or Whittier’s poem. If he did, he might think for a moment about who it was that fired on the American flag and “rent the banner with seam and gash.” It wasn’t Black athletes kneeling during the national anthem, calling for our country to live up to the ideals represented by our flag. It was the Confederates whom Trump wants to honor with monuments and the naming of military bases.

And this is the key point: If you demand respect for the flag, you cannot at the same time honor the Confederate leaders and generals who turned traitor against it. The flag was on only one side in the Civil War. It flew in the ranks of the Union troops under assault by Confederate rebels.

Loyal Americans rallied to the colors. In a popular song of the time, they marched to war singing:

Yes, We’ll rally round the flag, boys, rally once again,
Shouting the battle cry of freedom.
We will rally from the hillside, gather from the plain.
Shouting the battle cry of freedom.

The Union forever, hurrah boys, hurrah!
Down with the traitors and up with the stars;
While we rally round the flag, boys, rally once again
Shouting the battle cry of freedom.

We are springing to the call of our brothers gone before
Shouting the battle cry of freedom
And we'll fill the vacant ranks with a million free men more
Shouting the battle cry of freedom.

The Union forever, hurrah boys, hurrah!
Down with the traitors and up with the stars;
While we rally round the flag, boys, rally once again
Shouting the battle cry of freedom.

We will welcome to our numbers, the loyal, true and brave,
Shouting the battle cry of freedom,
And although they may be poor, not a man shall be a slave,
Shouting the battle cry of freedom.

The Union forever, hurrah boys, hurrah!
Down with the traitors and up with the stars;
While we rally round the flag, boys, rally once again
Shouting the battle cry of freedom.

For those who respect both our flag and our history, the issue of taking down monuments to Confederate leaders and generals and renaming military bases honoring them should be an easy one.

As Americans we should rally round the flag, shouting the battle cry of freedom.

Down with the traitors and up with the stars.

That means taking down the monuments and renaming the bases.

Down with the traitors and up with the stars.

March 19, 2020

What Trump Can Teach Us About Con Law, ep. 39: 'Quarantine Powers'

By Elizabeth Joh

[Cross-posted from Trumpconlaw.com]

During a health crisis, what is the government allowed to do? As the novel coronavirus spreads across America, there have been closures and lockdowns across the country. In this episode, we look to history to understand who has the power to quarantine, and how the office of the president can be used to slow down a pandemic. Listen to episode 39 of the '"What Trump Can Teach Us About Con Law" podcast 

 

March 19, 2020

Yes, states and local governments can close private businesses and restrict your movement

[Cross-posted from Politico]

By Elizabeth Joh

Can the state tell your favorite local restaurant to close, or tell you that you must stay at home unless it’s absolutely necessary to leave, because of an emergency? The governors of New York, New Jersey and Connecticut have closed down bars, movie theaters and dine-in restaurants. Six counties in the San Francisco Bay Area have imposed a shelter-in-place order that allows people to leave their homes only for essential activities.

In response to these drastic measures intended to slow down the spread of coronavirus, there are plenty of voices on social media, and even some in government, denouncing such measures as unprecedented, un-American and unconstitutional. Most of us have never imagined such impositions outside of a situation of armed conflict, but allegations that those measures in the current circumstances are unlawful are wrong. And this is a case where legal misinformation can exacerbate a public health crisis.

States—and their cities and counties by extension—possess what has long been known as a “police power” to govern for the health, welfare and safety of their citizens. This broad authority, which can be traced to English common law and is reserved to the states by the 10th Amendment, is far from radical; it justifies why states can regulate at all.

The police power of the states has been invoked on multiple occasions by the Supreme Court, often in contrast to the limited powers of the federal government—for example, in Chief Justice John Roberts’ opinion in the 2012 Obamacare case. This power also has been recognized in the context of public health for decades. In a 1905 Supreme Court case that upheld mandatory smallpox vaccinations, the court observed that “upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

What does this mean for the drastic coronavirus responses we’re seeing across the country? State and local governments can indeed decide to force even unwilling businesses to shut down, require people to stay mostly at home, impose curfews and even threaten noncompliance with arrest if necessary. (Thankfully, with COVID-19, we have so far seen mostly peaceful, even if begrudging, compliance to “flatten the curve” so that our health care workers and hospitals are not overwhelmed.) But, you might ask, don’t I have individual rights, even in a pandemic? Of course you do. We possess constitutionally protected rights to assemble and travel, for instance. State and local governments must be careful to make sure that measures they impose to protect people are not overly broad and are taken only for justifiably important reasons.

Our legal history is filled with cases where government has had insufficiently important reasons to justify restrictive measures, or where the measures themselves are overly broad. Or even cases where government restrictions turn out to have been implemented for impermissibly discriminatory reasons, such as when the city of San Francisco targeted only its Chinese residents in a bubonic plague outbreak in 1900. Not all exercises of the police power will withstand constitutional scrutiny.

But the very existence of this framework—the balance between the need to protect the public and individual rights—assumes that there will be times when there are truly compelling emergencies justifying severe measures. A global pandemic that spreads even among those who are asymptomatic and could exceed the capacity of the American health care system would appear to be just such a compelling situation.

When prominent voices tell the public that these drastic measures are somehow inherently unlawful or obviously unconstitutional, they detract from the social solidarity we need right now. People who are misled about what the government may do, and confused about its established powers, might not take heed of the necessary measures to protect their own health and that of their communities.

At some point in the future, we could see a coronavirus response that has gone on too long or is too broad to justify its burdens. Or we might see instances of people who were denied civil liberties without real justification. Even now, you might feel that these measures are too little, too late, or that they are drastic, and burdensome. But if we are facing a window of opportunity that is rapidly closing, to say that the states cannot try to use their most basic authority to save lives is not only wrong—it might be deadly.

 

February 4, 2019

Immigration and Civil Rights in an Era of Trump

By Kevin Johnson

[Cross-posted from ImmigrationProf Blog]

The following is a lightly edited version of my Martin Luther King Jr. Lecture at Valparaiso University Law on January 23, 2019.

I am humbled, honored, and in, fact, awed by the opportunity to give a lecture named after Dr. Martin Luther King Jr. Some wonderful speakers, including my friend Angela Onwuachi-Willig, have delivered the lecture.

Located on a beautiful campus in a beautiful town, Valparaiso University School of Law has a long and illustrious history. As the website states, “law is more than a job; it is a vocation: a responsibility and opportunity to serve others.” These nicely put words concisely set an admirable goal for all of legal education.

Martin Luther King Jr., a civil rights icon, is not well-known for his positions on immigration. However, the principles for which his life stands can guide us in thinking about immigration law and its enforcement. Several principles, which I paraphrase here, struck me as particularly relevant:

  1. People should be judged by “the content of their character,” not “the color of their skin.”
  2. “The arc of moral universe is long but bends toward justice.”
  3. “I choose to give my life to those who have been left out.”

I have spent time considering how immigration is one of the civil rights issues of the new millennium. Please do not get me wrong. I in no way mean to suggest that there are no other civil rights issues. Criminal justice, voting rights, equal educational opportunities, and employment discrimination unquestionably are among those civil rights concerns that deserve our attention. I modestly assert that immigration is among the issues that deserve consideration.

The title of my remarks – Immigration and Civil Rights in an Era of Trump – were designed to afford me flexibility in what I talk about.  This is especially important because President Trump regularly has something new, novel, and newsworthy to say about immigration. Almost every day, it seems, we hear something new from the Trump administration about immigration. Indeed, as I deliver this lecture, the nation is in the midst of the longest shutdown of the U.S. government in U.S. history, a shutdown that centers on a dispute over whether billions of dollars of congressional funding should be provided for a wall along the U.S./Mexico border.

Immigration news from Washington, D.C. has been a constant since President Trump’s inauguration. Just a few months ago, President Trump threatened to issue an executive order ending birthright citizenship as provided by the Fourteenth Amendment. He also declared the “caravan” of migrants from Central America to be a national “crises” and “invasion.” Through a number of policy changes, the Trump administration has sought to remake the asylum system, with little regard to the rule of law. I could go on but you get the general idea.

President Trump’s immigration initiatives share two fundamental characteristics.

First, he consistently seeks to reduce immigration and specifically to reduce the number of immigrants of color coming to, and living in, the United States. These actions generally are contrary to the law prohibiting racial discrimination.

Second, despite the frequent claim that the administration is committed to simply enforcing the immigration laws, President Trump attacks judges who issue rulings with which he disagrees, calls for changes to our immigration laws that he claims are ridiculous, and all-too-often ignores the law. For example, President Trump, in my estimation, in many instances has sought to limit asylum eligibility in ways not permitted by Congress. To offer another example, few legal scholars believe that President Trump’s has the power call to abolish birthright citizenship. That proposal exemplifies what is becoming more and more apparent:  President Trump feels little need to adhere to the rule of law. This is especially hard for lawyers and law professors to accept.

In the Immigration Act of 1965, Congress amended the immigration laws to explicitly prohibit discrimination in the issuance of visas on the basis of race, sex, nationality, place of birth, or place of residence. Passed in the wake of the Civil Rights Act of 1964, the 1965 Act repealed laws mandating racial and national origin discrimination in the U.S. immigration laws. The momentum of the civil rights movement led by Dr. King transformed immigration law. In so doing, Congress established a blueprint for immigration diversity, allowing millions of people of color to immigrate to the United States. The nation saw a dramatic rise in immigration from Asia; U.S. law had barred Asian immigration from the late 1800s through the first half of the twentieth century.

The trajectory toward a more diverse nation, however, is likely to change due to a myriad of policies embraced by the Trump administration. Those policies can be aptly characterized as waging war on immigration diversity and the rule of law. President Trump’s immigration actions show a desire to change that diversity, to take the nation back to the past to a time when Asians were excluded, when Mexicans were deported with impunity.

President Trump’s racial goals should not be surprising. Unlike any president in modern U.S. history, he regularly makes racially-explosive comments about immigrants. Consider a few:

  •  
    • Mexicans are “rapists” and “criminals”;
    • Salvadorans are MS-13 gang members;
    • Muslims are “terrorists” who should be subject to “extreme vetting”; and
    • El Salvador, Haiti, and nations in Africa are “s***hole countries” and the United States should not be providing safe haven to citizens of those countries.

President Trump has followed up on the incendiary rhetoric with a number of policies, many of them in tension with, if not in outright violation of, the law. In sum, the Trump administration has taken some of the most aggressive immigration enforcement policies in modern U.S. history. The policies almost all aim to restrict noncitizens of color from immigrating to the United States.

I am working now on an article about what I characterize as the “new Latino repatriation.” It shows how many of the administration’s immigration measures in total replicate (1) the Mexican repatriation of the 1930s, in which state, local, and federal governments forcibly “repatriated” persons of Mexican ancestry, including U.S. citizens, to Mexico; and (2) “Operation Wetback” in 1954, a military-style effort to remove Mexican immigrants in the Southwest. Not coincidentally, President Trump has endorsed "Operation Wetback" -- without using its official name -- as a legitimate policy approach to manage migration today.

Consider a few of the Trump administration policies that demonstrate the President’s desire to restrict immigration diversity and, in some instances, have been found to be unlawful.

1.   The Travel Bans

Within days of his inauguration, President Trump issued an executive order that was intended to bar immigrants from a number of predominantly Muslim nations from entering the United States. The original travel ban was not carefully done and included obvious legal flaws. It, for example, was not clear whether it applied to lawful permanent residents. When the courts enjoined the first travel ban from going into effect, President Trump issued a revised version. The courts struck down the second version as unlawful and, in no small part, because of the President’s anti-Muslim statements. Although a 5-4 Supreme Court in Trump v. Hawaii upheld the third draft of the ban, four Justices would have concluded that the executive order was motivated by anti-Muslim animus, not national security concerns.

2.    “Chain Migration” and Reforming Legal Migration

President Trump has called for ending “chain migration” and dramatically restricting family-based immigration to the United States. In that vein, he has expressed support for the RAISE Act, which would reduce legal immigration by one-half through reducing family-based immigration. That change would have the greatest impact on prospective immigrants from Mexico, India, and China, the nations that today send the most immigrants to the United States. And cutting legal immigration would likely increase pressures for undocumented migration, as many noncitizens without lawful options for rejoining family will seek to rejoin family members without authorization.

The Trump administration also has sought to restrict legal immigration with a proposed rule that would tighten the “public charge” exclusion. The result is that many immigrants now decline to seek public benefits to which they are lawfully entitled. The rule also would limit migration of poor and working people to the United States, an outcome contrary to the “huddled masses” welcomed in the famous inscription on the Statue of Liberty. In a similar vein, the Trump administration has drastically cut the numbers of refugees admitted into the United States each year.

3.    “Zero Tolerance” Policies

The Trump administration’s “zero tolerance” policies have targeted migrants from Mexico and Central America. In response to Central Americans seeking asylum, the Trump administration adopted a harsh detention and family separation policy, blaming the policy on the Democrats and the courts.  A public outcry and litigation compelled the Trump administration to end family separation.  As the 2016 midterm elections neared, similar rhetoric was used against asylum seekers from Central America – known as the “migrant caravan” – who were in route to the U.S. border.  Working to build a “crisis” mentality among the general public, President Trump has been waging war on asylum.

a.    Central American Asylum Applicants

Courts have played important roles in halting the administration from engaging in racially charged policies designed to stop Latinx families from immigrating to the United States. In particular, the courts have upheld the rights of immigrant children subject to detention under what is known as the Flores settlement, to which President Clinton's Justice Department agreed in 1997.  The Trump administration has railed against compliance with the settlement.  It has proposed to undo the Flores settlement so that the administration can indefinitely detain immigrant children and their families.

Other presidents have taken steps to deter Central American asylum seekers from seeking relief in the United States. But none have taken measures as harsh as those adopted by the Trump administration.

b.   Sanctuary Cities

The Trump administration has challenged “sanctuary” states and cities for refusing to fully cooperate with the U.S. government in immigration enforcement. Although the courts have for the most part blocked those efforts, the administration has tried to halt the flow of federal funds to “sanctuary” cities.   Seeking to capitalize politically on tragedies, President Trump has been quick to blame sanctuary jurisdictions for crime.  It is odd that conservatives -- the traditional defenders of state and local rights when it comes to civil rights -- today challenge local authority and autonomy with respect to immigration and immigrants.

c.    DACA

The Trump administration has sought to eliminate the Obama administration's Deferred Action for Childhood Arrivals (DACA) policy for undocumented youth.  The policy benefited hundreds of thousands of young undocumented immigrants, with more than 80 percent from Mexico and Central America. Courts have enjoined the rescission of DACA.

d.    TPS

The Trump administration announced the end of Temporary Protected Status for Haitians, Salvadorans, Nicaraguans, Hondurans and nationals of other developing nations. TPS allows nationals of nations hit by mass violence or natural disaster to remain temporarily in the United States.  More than 200,000 Salvadorans are threatened with the loss of TPS relief. To this point, courts have enjoined the end of TPS for nationals of El Salvador and other nations..

e.    Removals           

The Trump administration has aggressively increased removals and adopted approaches that would ensure that more than 95 percent of the noncitizens removed are from Mexico and Central America.  Although many of the crime-removal programs are being carried forward from the Obama administration, the new administration has expanded the efforts and the crimes for which removal will be sought.

****

These policies together would significantly reduce diversity in the number of immigrants admitted to, and permanently reside, in the United States. Importantly, such policies violate the spirit if not the letter of the 1965 amendment to the immigration laws and Congress’s goal of promoting diversity in immigration.   The courts have halted many of the more egregious violations of the law.  The defunding of sanctuary cities has been halted.  DACA’s rescission has been halted. Stripping of TPS has been stopped.  Although the travel ban eventually went into effect, litigation refined and narrowed the ban.

Conclusion

Courts time and again have prohibited the Trump administration from pursuing immigration policies that violate the law. Legal and political attention must continue to be paid to these policies in order to prevent the country from returning to its pre-1965 law that fostered predominantly white immigrants white nation.  Put simply, the unlawful war on immigrant diversity should not be permitted to continue. Political organization has been one response to the Trump immigration enforcement measures.  The rise and fall of DACA energized immigrants’ rights activism and marked the ascendance of a political movement. That may be one of the most important long term impacts of DACA.  An “Abolish ICE” movement has emerged.  Congress has the opportunity to act to reform and improve the immigration laws.

I think that Martin Luther King Jr. would condemn the unjust immigration initiatives of the Trump administration.  He would object to judging immigrants by the color of their skin, not the content of their character.  He would see the current initiatives as contrary to the arc of justice.  Last but not least, Dr. King would call for us to protect immigrants who are “left out” and deserve our protection.

October 3, 2017

Aoki Center Screens 'Cruz Reynoso: Sowing the Seeds of Justice'

The Aoki Center for Critical Race and Nation Studies presented a screening of Cruz Reynoso: Sowing the Seeds of Justice, filmmaker Abby Ginzberg's documentary on the life of Professor Emeritus Cruz Reynoso, at King Hall on September 26. 

The film presents the story of Professor Reynoso's life and career as it intersects with key moments in the history of California and the nation, including the fight for legal services for farm workers during the 1970s, the 1986 political campaign by death penalty advocates against Reynoso and two other California Supreme Court justices, and the U.S. Commission on Civil Rights' investigation of voting irregularities in Florida during the 2000 Presidential election. 

A member of the UC Davis School of Law faculty since 2001, Professor Reynoso was awarded the Presidential Medal of Freedom, the nation's highest civilian honor, in 2000 by President Bill Clinton in recognition of his "compassion and work on behalf of the downtrodden." 

The screening was part of the Aoki Center's Fall 2017 Interdisciplinary Research Seminar Series. To view a trailer for the film click here.

 

September 1, 2017

With pardon, Trump shows no commitment to U.S. civil rights laws

[Cross-posted from the Davis Enterprise]

By Kevin R. Johnson

Over the weekend, a bipartisan group of political leaders - including Arizona Sens. Jeff Flake and John McCain, as well as House Speaker Paul Ryan, R-Wis. - condemned President Trump's pardon late last week of Maricopa County (Arizona) Sheriff Joe Arpaio.

For more than two decades, the controversial sheriff struck fear into the hearts of immigrants and U.S. citizens of Mexican ancestry in Arizona. A respected federal court judge appointed by President George W. Bush, Murray Snow, found that Arpaio, and his sheriff's office, aggressively - and lawlessly - used racial profiling to enforce immigration laws.

Defeated for re-election in 2016, the controversial sheriff had made a name for himself in unabashedly claiming that he wanted to aggressively enforce U.S. immigration laws. But publicity stunts showed cruelty and insensitivity toward inmates under his protection.

Arpaio, for example, made inmates wear pink underwear and suffer the heat outdoors in scorching Arizona summers. Undocumented immigrants were forced to live in a segregated "tent city" that Arpaio bragged was a "concentration camp."

The nation has faced similar civil rights issues raised by Arpaio's refusal to follow the rule of law. Southern segregationists in the 1950s and 1960s expressed views not that different from those expressed by contemporary alt-right activists and white supremacists. They, too, had to be schooled on the rule of law.

In one of the most famous examples, President Eisenhower in 1957 deployed federal troops to enforce the Supreme Court's decision outlawing segregated schools in Brown v. Board of Education (1954) so that African-American children, known as the Little Rock 9, could attend Little Rock Central High School in Arkansas.

Presidential pardons at times have been controversial. President Ford's pardon of President Nixon for his role in the Watergate cover-up is a leading modern example. However, an American president never has pardoned a person who repeatedly, willfully and intentionally refused to comply with court orders aimed at ending mass violations of the civil rights of racial minorities.

Arpaio was pardoned despite a judge's ruling that found him guilty of criminal contempt. A neutral federal judge, Susan Bolton, presided over the trial on criminal contempt and, after hearing testimony from Arpaio himself, found him guilty.

In addition to the civil rights violations, Arpaio undermined the fundamentals of the legal process. For a law enforcement officer to be found liable for criminal contempt is serious business. This explains why Attorney General Jeff Sessions reportedly told Trump that he could not drop the charges against Arpaio. And it explains why Republicans and Democrats alike are condemning the Arpaio pardon.

Trump has founded his presidency on enforcing the U.S. immigration laws. But his pardon of Arpaio is inconsistent with the rule of law. The president justified the pardon by saying that the sheriff "was just doing his job." However,"his job" as a law enforcement officer does not include breaking the law.

First, Arpaio was found to have engaged in a pattern and practice of racial discrimination in law enforcement against Latinos. Second, Arpaio was punished for intentionally violating court orders. Both offenses are antithetical to the rule of law. The efforts to nullify a court order vindicating the civil rights of vulnerable minorities are precisely the kinds of actions of the Southern segregationists of the 1950s and 1960s.

We are living in a time of deep political division and disturbing challenges to our Constitution. The nation has seen civil unrest unfold as violent clashes, including in California this past weekend, take place between white supremacists and counter-protesters. Trump and his followers have inflamed passions by claiming that immigration laws must be enforced with impunity.

In pardoning Arpaio, however, the president does not appear to be equally committed to enforcement of civil rights laws. He has demonstrated this through his pardon of Arpaio, as well as in his response to the troubling events in Charlottesville.

Trump seems to be siding with those opposed to federal civil rights law - and against the rule of law - by his continued attacks on the independence of the judiciary. That message is not what the nation needs at this time.