Category: Immigration

0

Pretext, the Rule of Law, and the Good Official

Justice Scalia, author of Whren v. United States and Ashcroft v. al-Kidd (used with permission, www.courtartist.com)

How should citizens in a republic bound by the rule of law regard the pretextual use of law by state officials?  If the United States Supreme Court is any indicator of the answer in our own republic, we are pretty ambivalent about pretext. 

Sometimes we don’t care very much.  In its most well-known case on the subject, Whren v. United States (1996), the Court upheld the pretextual use of the traffic code (which was prolix enough to be violated sooner or later by just about any car on the road).  Whren’s car was stopped by a vice squad cop who had a hunch (but not probable cause to believe) that Whren had drugs in his car.  One lesson of this case is that you should always signal before making a turn.  Justice Scalia, writing for a unanimous Court, had another one: the police are free to do “under the guise of enforcing the traffic code what they would like to do for different reasons.”  In other words, a green light to pretextual traffic stops.

Sometimes, we care a great deal.  In Kelo v. City of New London (2005), the Supreme Court categorically rejected the idea that government officials may “be allowed to take property under the mere pretext of a public purpose, when [their] actual purpose was to bestow a private benefit.”  Likewise, interpreting Title VII in their concurrence in Ricci v. DeStefano (2009) (which concerned a city fire department), Justices Alito, Scalia, and Thomas highlighted the subjective component of liability in a civil suit for employment discrimination in a disparate-treatment case: the employer is liable if its facially legitimate reason for a decision turns out to be “just a pretext for discrimination.”  Justice Frankfurter long ago chastised the Court for sustaining a law “because Congress wrapped the legislation in the verbal cellophane of a revenue measure.”  The concept of limited and enumerated powers seems to suggest a general disapproval of pretext.

Does repeated pretextualism — whether one is making or enforcing the law — weaken the rule of law?  When tempted to use a law for an unintended purpose, how should the “good” official (read the adjective however you like) distinguish an innovative use from a destructive one?  My own motivation for this research stems from concern that using law to achieve an objective that the law was clearly unintended to achieve might do something destructive to the rule of law itself.  Maybe it does some harm to the official who wields power in that pretextual way, too, an official who may be the worst-placed government agent to exercise the sort of discretion that creative administration of the law demands.  Pretextualism may be habit-forming and, like cigarettes, unhealthy.

After the break, I’ll share my working definition of pretext and two cases separated by more than fifty years, but adopting the same pretextual technique to evade restrictions on government action.  One involves a Soviet spy whose case troubled the Supreme Court so much that the Court heard oral argument twice.  Surprisingly, that case foretold and influenced the “easy” Whren case.  The other involves a former college football player caught up in the current “War on Terror.”  That case, Ashcroft v. al-Kidd, was decided in May, also referencing Whren, but this time without such unanimity and with a lot more unease about pretext.

Read More

2

The Know-Nothing Party Platform

I have now reached the year 1856 in the Bingham biography, which means I am working through some interesting materials on the Know-Nothing (or American) Party, which was a strong nativist and anti-Catholic movement that competed with the Republicans in 1854 and 1856. (Bingham pandered to anti immigrant sentiment off and on throughout his congressional career.)  Some of the planks in the Know-Nothing platform are startling and had credibility because Millard Fillmore, the former President, was the Party’s presidential nominee.  For example:

—  “Americans must rule America, and to this end native-born citizens should be selected for all State, Federal, and municipal offices of government employment, in preference to all others.”

—  “A change in the laws of naturalization, making a continued residence of twenty-one years, of all not heretofore provided for, an indispensable requisite for citizenship hereafter, and excluding all paupers, and persons convicted of crime, from landing upon our shores.”

From Safety Net to Dragnet

The fourth Class Crits conference will be held in DC in about a month. Titled “Criminalizing Economic Inequality,” it focuses on the US’s “increasing reliance on the criminal justice system to make and enforce economic policy.” A few recent items highlight the conference’s timeliness:

1) Barbara Ehrenreich on “How America Turned Poverty Into a Crime:” It’s hard to believe that Ehrenreich’s Nickeled and Dimed came out 10 years ago. As she’s written in the book’s re-issue, things have only gotten worse for the struggling families whose plight she chronicled in the book. Ehrenreich describes how officials at public assistance programs treat many beneficiaries with contempt.  One needy mom named Kristen says caseworkers “treat you like a bum. They act like every dollar you get is coming out of their own paychecks.”

Nationally, according to Kaaryn Gustafson of the University of Connecticut Law School, “applying for welfare is a lot like being booked by the police.” There may be a mug shot, fingerprinting, and lengthy interrogations as to one’s children’s true paternity. The ostensible goal is to prevent welfare fraud, but the psychological impact is to turn poverty itself into a kind of crime. Read More

0

UCLA Law Review Vol. 58, Issue 5 (June 2011)

Volume 58, Issue 5 (June 2011)


Articles

Melville B. Nimmer Memorial Lecture: What Is a Copyrighted Work? Why Does It Matter? Paul Goldstein 1175
Equal Opportunity for Arbitration Hiro N. Aragaki 1189
Asymmetrical Jurisdiction Matthew I. Hall 1257


Comments

Multiracial Work: Handing Over the Discretionary Judicial Tool of Multiracialism Scot Rives 1303
Give Me Your Tired, Your Poor, and Your Queer: The Need and Potential for Advocacy for LGBTQ Immigrant Detainees CT Turney 1343


0

YLJ Online Symposium: A Republic of Statutes

yljonline

The Yale Law Journal Online has just published the final piece of a symposium devoted to William N. Eskridge, Jr. and John Ferejohn’s remarkable new book, A Republic of Statutes: The New American Constitution. The book chronicles the development of constitutional principles derived not directly from the text of the Constitution itself but from the implementation of entrenched “superstatutes” by administrative and executive officials. The symposium essays examine both the broad contours of the theory advanced by Eskridge and Ferejohn as well as its application to particular fields of law, such as immigration, national security, and health care. Visit YLJ Online to read the full collection:

1

Randomization, Intake Systems, and Triage

Thanks to Jim and Cassandra for their carefully constructed study of the impact of an offer from the Harvard Legal Aid Bureau for representation before the Massachusetts Division of Unemployment Assistance, and to all of the participants in the symposium for their thoughtful contributions.  What Difference Representation? continues to provoke much thought, and as others have noted, will have a great impact on the access to justice debate.  I’d like to focus on the last question posed in the paper — where do we go from here? — and tie this in with questions about triage raised by Richard Zorza and questions about intake processes raised by Margaret Monsell.   The discussion below is informed by my experience as a legal service provider in the asylum system, a legal arena that the authors note is  strikingly different from the unemployment benefits appeals process described in the article.

My first point is that intake processes vary significantly between different service providers offering representation in similar and different areas of the law.  In my experience selecting cases for the asylum clinics at Georgetown and Yale, for example, we declined only cases that were frivolous, and at least some intake folks (yours truly included) preferred to select the more difficult cases, believing that high-quality student representation could make the most difference in these cases.  Surely other legal services providers select for the cases that are most likely to win, under different theories about the most effective use of resources.  WDR does not discuss which approach HLAB takes in normal practice (that is, outside the randomization study).  On page twenty, the study states that information on financial eligibility and “certain additional facts regarding the caller and the case”  are put to the vote of HLAB’s intake committee.  On what grounds does this committee vote to accept or reject a case?  In other words, does HLAB normally seek the hard cases, the more straightforward cases, some combination, or does it not take the merits into account at all?

Read More

3

The Old Illegitimacy Part II: Facilitating Societal Discrimination

In a prior post, I demonstrated that the law makes explicit distinctions between marital and nonmarital children and denies the latter benefits automatically granted to its marital counterparts.  The harms resulting from the law’s continued distinctions on the basis of birth status are significant.  For example, these distinctions impair nonmarital children’s ability to acquire property and wealth.  While individuals often use part of their inheritance for a down payment on a home, to start a business, or to fund their own children’s education, nonmarital children are denied the same access to intergenerational wealth.

These legal distinctions may also stigmatize nonmarital children. Denying nonmarital children access to post-secondary educational support that is granted to marital children suggests that the former are less deserving of support.  It also signals that fathers’ responsibilities to their children differ depending on whether they are marital or nonmarital.  Denying U.S. citizenship to the children of unmarried fathers unless their fathers expressly agreed to support them similarly signals that nonmarital children are not automatically entitled to support.

These legal distinctions also facilitate societal discrimination by encouraging individuals (either intentionally or otherwise)  to make negative assumptions about unmarried parents and their children.  Many Americans (not just former Gov. Mike Huckabee) believe that it is wrong for unmarried persons to have children.  Seventy-one percent of participants in a recent Pew Research Center study indicated that the increase in nonmarital births is a “big problem” for society and 44% believe that it is always or almost always morally wrong for an unmarried woman to have a child.  Some people assume that unmarried mothers are sexually irresponsible and that their children will be burdens on the public purse.  They also expect nonmarital children to underachieve academically, economically, and socially.

Read More

6

Rejecting Refugees

The New York Times today reports on my most recent co-authored empirical study of the U.S. asylum system, Rejecting Refugees: Homeland Security’s Administration of the One-Year Bar to Asylum, forthcoming in the William and Mary Law Review. As the title suggests, this article focuses on asylum law’s one-year filing deadline, which was created by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Scholars and practitioners have long expressed concern that refugees have been denied asylum due solely for failure to apply within a year of entry, and fear that the bar has had a significant impact on the U.S. asylum system. Our article is the first systematic empirical study of the effects of the deadline on asylum seekers and the asylum system.
We focus on decision-making by the Department of Homeland Security, which adjudicates most applications for asylum in the first instance. The findings are troubling. Most notably, it is likely that since the one-year bar came into effect, in April 1998, through June 2009, DHS rejected on the deadline more than 15,000 asylum applications (affecting more than 21,000 refugees) that would otherwise have been granted.
Read More

9

The Insidious List

News recently broke that, in Salt Lake City, Utah, a group calling itself “Concerned Citizens of the United States” sent a memo to local newspapers, radio stations, television outlets, state law enforcement, immigration and DHS agents, and Utah legislators listing over 1,300 alleged “illegal immigrants” who the group believed should be “immediately deported.”  Next to each name appeared the person’s Social Security number, date of birth, address, and, at times, medical information, such as a pregnant woman’s due date.  The group claimed that it “observe[d] these individuals in our neighborhoods, driving on our streets, working in our stores, attending our schools, and entering our public welfare buildings.”  It continued: “We spen[t] the time and effort needed to gather information along with legal Mexican nationals who infiltrate thei social networks and help us obtain the necessary information we need to add them to our list.”  The group then stepped up the volume: “We see a direct relationship between these illegal aliens and the escalation of crime in our communities in the form of drug and alcohol abuse, theft, and domestic violence. . . . They need to go and now.”  The group signed off with this missive: “We will be listening and watching.”

This feels eerily familiar.  In 1997, an anti-abortion group set up a website called Nuremberg Files that revealed abortion providers’ home addresses, birth dates, Social Security numbers, and the names of their childrens’ schools.  The site listed abortion providers who had been wounded in grey and those who had been killed with their names struck in black.  To be sure, the “Concerned Citizens” memo neither threatened nor sought to incite violence as in the Nuremberg case.  Nonetheless, the memo took a hateful “us versus them” turn in suggesting that illegal aliens bear responsibility for increased drug abuse, crime, and domestic violence.  Akin to the Nuremberg Files case, the “Concerned Citizens” invaded the privacy interests of the listed individuals by giving publicity to their Social Security numbers.  While they declined to identify themselves, one imagines that they will be found and could face tort privacy claims.

Aside from its privacy implications, the list seems bent on intimidation, suggesting that the group inflitrated the alleged illegal aliens’ communities and would be “watching.”  Of course, the group could have provided tips to ICE and law enforcement — that would not be troubling.  But the group went so much further than that, sending the list of individuals’ personal information to media of all stripes.  This suggests an agenda to intimidate and bully.

0

UCLA Law Review Vol. 57, Issue 5 (June 2010)

Volume 57, Issue 5 (June 2010)

Articles

Introduction to the Symposium Issue: Sexuality and Gender Law: The Difference a Field Makes Nan D. Hunter 1129
Elusive Coalitions: Reconsidering the Politics of Gender and Sexuality Kathryn Abrams 1135
The Sex Discount Kim Shayo Buchanan 1149
What Feminists Have to Lose in Same-Sex Marriage Litigation Mary Ann Case 1199
Lawyering for Marriage Equality Scott L. Cummings Douglas NeJaime 1235
Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive William N. Eskridge, Jr. 1333
Sticky Intuitions and the Future of Sexual Orientation Discrimination Suzanne B. Goldberg 1375
The Dissident Citizen Sonia K. Katyal 1415
Raping Like a State Teemu Ruskola 1477
The Gay Tipping Point Kenji Yoshino 1537