Tag Archives: courts

“Impose Boundaries on Immigration Law”

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That’s the title of Deputy Attorney General Rod Rosenstein’s op-ed in last Thursday’s Wall Street Journal.  In it, he decried the lack of uniformity of our immigration laws and associated judicial rulings on those laws.

…US immigration law is far from uniform. Inconsistent rulings by the 12 federal appellate courts have created a hodgepodge of jurisprudence, in which the applicable legal precedents depend on the location of the immigration court that heard a case.

He proposed a solution.

Congress can and should restore uniformity and promote efficiency by consolidating all immigration appeals in a specialized court of immigration appeals.

Whatever the merits of Rosenstein’s proposal, though, before any immigration law—any law—can have legitimate, and predictable, effect, boundaries have to be imposed on activist judges.  Before any specialist court—any court—can have legitimate, and predictable, effect, boundaries have to be imposed on activist judges.  This is particularly critical given the judge-centric nature of his proposal.

Judges cannot be allowed to place their personal views of societal need or “fairness” above what the law they’re applying actually says.  Judges cannot be allowed to violate their oaths of office with their imposition of personal views in place of imposing the text of the law(s) before them in cases, including immigration cases.

Failure requires consequences, else judicial failure will continue, to the increasing detriment of our republic.  Those consequences must include, in the most egregious instances or when particular judges demonstrate an especial predilection for activism, removal from the bench.

Brussels Interferes Again

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Now the European Court of Justice has decided to weigh in on Brexit.

The European Court of Justice’s opinion, which requires confirmation in a final court ruling, says the U.K. can unilaterally stop the process of leaving the EU, something that Brussels and the U.K. government had sought to oppose. A final ruling is expected within the next few weeks.

This is yet another cynical effort by Brussels to interfere in the domestic affairs of a sovereign nation, this time compounded by Brussels’ insistence on punishing the Brits for their impertinence.

Were this a serious, honest move, they would have issued this opinion two years ago, at the outset of the sham negotiations.

Justice and Law

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An Indian, a Creek, stands accused of murdering a fellow tribesman.  He was arrested on the Creek’s Oklahoma reservation, and with that, he’s demanding that he be tried in Federal court rather than in an Oklahoma State court.  The matter of which court should have jurisdiction, which centers on the existence or absence of the Creek Nation reservation in Oklahoma, now is before the US Supreme Court.

The government’s lawyer, US Deputy Solicitor General Edwin Kneedler, declaimed

This would be a dramatic change from the way everyone has understood it for the past 100 years[.]

He continued:

[A]ny crime involving an Indian as a victim or a perpetrator would be subject to federal jurisdiction, not state jurisdiction, and there are not the FBI resources, the US attorney resources, the other resources.

With that he argued—with a straight face—that the government’s convenience is legitimate reason for denying justice.  On the contrary: if government agencies lack the resources to do their jobs, it’s Congress’ responsibility to get them the resources, not an individual’s responsibility to surrender his right to justice.

It gets worse, from no less a light than Justice Brett Kavanaugh, especially in light of the fact that Congress has not—ever—abolished the Creek reservation, even as it has, step by step, removed critical aspects of Creek Nation sovereignty on that reservation:

Stability is a critical value in judicial decision-making, and we would be departing from that and creating a great deal of turmoil [if we rule the Creek reservation continues to exist]. Why shouldn’t the historical practice, the contemporaneous understanding, the 100 years, all the practical implications say leave well enough alone here?

That’s a breathtakingly Brandeis-ian view of justice from an avowed textualist.  It’s better, opined Brandeis—and now Kavanaugh—that the law be settled than that it be settled right.  Wow.

Here’s the depth of the injustice that’s being argued should be maintained:

In treaties dating from the 1830s, the US pledged to “secure a country and permanent home to the whole Creek nation of Indians,” yet in following decades it took official and practical steps that stripped them of both power and property.

And, with no hint of irony whatsoever,

[G]overnment lawyers sought to persuade the court that the US decided to betray its promises completely, rather than only in large part. Since Congress never expressly voted to abolish the reservation, attorney Lisa Blatt, representing Oklahoma, pointed to a series of steps that she said effectively did the same thing—abolishing tribal courts, canceling tribal taxes, making tribal law unenforceable, compelling the tribe to sell its property.

And the governments’ lawyers argued further that correcting this long-standing injustice would present chaos to the State and to the Federal governments: that lack of resources mentioned at the outset and, given the size of the Creek reservation compared to the size of Oklahoma, to the manner in which the State would have to enforce its laws.

But this is a cynical distortion of the matter.  The chaos already exists in the loss of access to justice for all those decades of years. Certainly, there would be some disruption were the governments involved required to correct their ancient error, but on the other side of that disruption would be the greater stability of true adherence to the law, a stability that would replace the instability of an arbitrary breakage of it.

That an injustice has existed for 100 years means only that it is a 100-year-old injustice; its hoary age in no way legitimizes the matter.

A Judge’s Ruling on Female Genital Mutilation

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Charges related to female genital mutilation were dismissed last week against Detroit doctor Jumana Nagarwala, who has a history of performing such “surgeries.”  Federal District Judge Bernard Friedman, of the Eastern District of Michigan, ruled that Congress had overstepped its authority in passing a law banning this FGM.

Sadly, the judge was right.  That law, passed in 1996, was done under our Constitution’s Commerce Clause, which authorizes Congress to regulate interstate commerce (along with trade with foreign nations and with the Indian Tribes).

However, Friedman wrote,

That clause permits Congress to regulate activity that is commercial or economic in nature and that substantially affects interstate commerce either directly or as part of an interstate market that has such an effect. … There is nothing commercial or economic about FGM.  As despicable as this practice may be, it is essentially a criminal assault…. Nor has the government shown that FGM itself has any effect on interstate commerce or that a market exists for FGM beyond the mothers of the nine victims alleged….  There is, in short, no rational basis to conclude that FGM has any effect, to say nothing of a substantial effect, on interstate commerce.

The law as passed is plainly unconstitutional.  But why not allow the law to stand, anyway, given its attempt to bar [a]s despicable [a] practice as FGM?  Because, as Chief Justice William Howard Taft wrote 100 years ago in the Child Labor Tax Case,

The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant or the harm which will come from breaking down recognized standards.

As Friedman noted, seemingly in consistence with Taft, in his 21st century opinion,

As laudable as the prohibition of a particular type of abuse of girls may be…federalism concerns deprive Congress of the power to enact this statute.

And

FGM is “local criminal activity” which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress.

Here, though, Friedman has understated the case.  This is a Federal concern, and it is within the scope of Congressional authority to address FGM.

Congress must repass this law—though why it chose the Commerce Clause as the underpinning is beyond me—and it must address Friedman’s Federalism concerns.  One obvious path is that the protection of all Americans collectively and the liberties of each American individually are the role of the Federal government; some protections cannot be left to the individual States to effect—or to choose not to effect.  This is why free speech and religion, the right to keep and bear arms, protections against excessive searches—indeed, the entirety of our Bill of Rights—are Federal concerns, with only the means of implementing them left to the States.

Certainly, there needs to be a limit on what is considered a Federal crime (or civil prohibition or requirement)—even murder is a State crime and not a Federal one, as it should be.

But surely our inalienable right to the pursuit of Happiness, which John Adams explained so eloquently carries within it the rights of personal property and of personal security, is a Federal concern, not a matter to be left, federalistically, to the States.  That property right necessarily includes the property every individual has in his own person, and that security right necessarily includes the safety of that property in person (and more generally, the safety of the person himself), especially.  This was acknowledged overtly when we fought—and won—a civil war over slavery.

It must be the case, too, that that property and that security must include control over what is done with any part of an individual’s body and who permits the doing or refuses it, and FGM can and must be as protected against as the evil of enslaving the whole of an individual’s body or mind.

Accordingly, Congress must repass this law, or something very like it, but it ought to be passed under 5th Amendment’s due process clause

nor shall any person…be deprived of life, liberty, or property, without due process of law

and under the 14th Amendment’s due process clause

…nor shall any State deprive any person of life, liberty, or property, without due process of law

And that due process plainly allows a Congressional bar against clitorectomy/female genital mutilation.

That won’t put Nagarwala back on the hook for her past practices of mutilation—criminal laws that are retroactive are anathema to liberty—but it will allow for criminal prosecution and jailing of future such butcheries.

 

Friedman’s ruling can be read here.

A Bogus Beef

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Recall CNN‘s Jim Acosta striking a White House intern (albeit lightly) and actively preventing her from doing her job.  In consequence of that, the White House suspended Acosta’s accesses to the White House.

Now CNN is suing the White House to get Acosta’s credentials back.  They’re doing it, too, on the risible grounds that the suspension violates Acosta’s 1st and 5th Amendment rights of free speech and due process.

Sure.

Acosta is in no way restricted from speaking his piece or from asking questions, either personally or in his capacity as a member of the press, although for the time being, he can’t ask his questions at White House pressers.  With regard to that last, the freedom of…the press, here personified by CNN, is in no way restricted since the suspension applies to Acosta personally: CNN is free to appoint another of its employees to attend such gatherings and ask such questions as CNN might consider useful.

Furthermore, getting credentials for access to the White House is a privilege, not a right; due process plainly does not apply.  On the other hand, striking White House personnel—or anyone else—however firmly or lightly is neither a right nor a privilege for anyone, much less for members of the press.

In my view, Acosta should not have his suspension lifted until his boss publicly apologizes for Acosta’s misbehavior.