Archive for the ‘Immigration’ Category


WHAT HAPPENED: The Plaintiffs are the parents of a Mexican teenager who was shot by a U.S. border guard standing on U.S. soil.  Plaintiffs are suing the Defendant (the guard) for Constitutional claims related to the shooting.

WHY IS THIS BEFORE THE SUPREME COURT:  Plaintiffs filed their lawsuit in the United States, and the Defendant has taken every action imaginable to dismiss the case, including arguing that the jurisdiction is wrong for a 4th amendment claim, that the Bivens analysis is incorrect, and that Defendant is immune because there is no precedent saying you can’t shoot non-citizens across the border (which is factually right, but it’s not like shooting people is ever OK).  Defendant has won at the lower level, so the case was dismissed.

WHAT ARE THE RAMIFICATIONS – There is a legal axiom that says “bad cases make bad law”.  While it is easy to look at this case and say “you shouldn’t people” (which is most of the Plaintiff’s arguments), if you stretch the borders and the rules for this case, you end up complicating other issues where a strict application of border lines and qualified immunity make sense.  The balance here is whether it is better for the Court to try to craft a rule that best resolves this question, or whether it is better to just make an unfair ruling in this case and keep the rules as is.  Adding complication to this case is the fact that an amicus brief from Border Guards have advocated for liability in this case, as the dangerous environment surrounding the border needs more civil liability to keep things under control.  Not to say that is going to sway things, but it adds context to where the situation is and why the Plaintiffs’ arguments make more sense the more you hear about facts of the case.

ROOT FOR HERNANDEZ IF: shooting people isn’t OK.

ROOT FOR MESA IF: shooting people is OK if you have a bunch of dumb rules in place to protect you.



WHAT HAPPENED:  Appellee is a non-citizen who was detained pursuant to a criminal matter in the United States.  Although all U.S. citizens are given the right to bail during a pending criminal matter, non-citizens are not.  Appellee is a good example of this inequity, as Appellee was held for three years without a bail hearing on charges of drug possession and joy-riding, which is a crime white teenagers may not even spend a night in prison over.  Appellee has filed a class action lawsuit with other non-citizens who have been detained unfairly asking for the Court to grant non-citizens a bail hearing when detention exceeds six months.

WHY IS THIS BEFORE THE SUPREME COURT:  The background on a non-citizen’s right to bail is somewhat murky, as there is case law favoring a right to bail hearings, and case law that denies the right entirely.  To make matters worse, neither case is directly on point, as the primary case law can mostly be limited to the specific facts of each case.  For example, a case that granted a non-citizen a bail hearing only did so because that person’s home country did not want the person returned, so without some kind of hearing, the defendant was going to be detained forever.  So on one end, this case serves to clarify existing law.  On the other hand, Appellee is asking for a pretty big right from the Court, where most immigration rights are reserved to Congress.  Therefore, another big issue is whether this Court believes it is within their rights to take action on something that may be outside their authority.

WHAT ARE THE RAMIFICATIONS –  If you’ll indulge me, here’s a short anecdote about baseball that may give this case more context.  Shortly after September 11th, the New York Yankees were playing in their fourth straight World Series.  Although most people hate the Yankees, it was hard not to root for them considering all the city had gone through, and it was almost serendipitous that they got this far so soon after that tragic event.  To make it even better, they were playing dipshit expansion team, the Arizona Diamondbacks, whose dumb name and ugly uniforms made them likely footnotes to this Disney story of an ending.  And yet, despite all those good vibes, the Diamondbacks won and it was ten years before the Yankees made the World Series again, thus ruining the story and showing that sometimes things operate in a vacuum and have no actual connection.  To that end, you may have heard about a certain Executive Order that bans a certain religion from a certain World superpower, and while it would be easy to make some kind of connection between this case and that case, there is no connection between these cases.  For one, even if Rodriguez wins, non-citizens only get the right to bail, which may in turn just end up being the right to get denied bail.  If Jennings wins, there is nothing indicating a broader approval of the Executive Order, since they rely on entirely different grounds.  So while I think there could be a propensity to read between the lines on this, I think this operates in its own world entirely.

ROOT FOR JENNINGS IF:  oh hell, you know who you are.

ROOT FOR RODRIGUEZ IF:  you would rather the judiciary make unconstitutional moves about immigration instead of it just being the president.

PREDICTION:  Jennings 5-3.


WHAT HAPPENED:  Plaintiffs were detained at Guantanamo Bay following the September 11th terrorist attacks.  Plaintiffs assert that they were detained illegally and without sufficient evidence warranting their detention, and are suing the government officials they believe are responsible for their detention.

WHY IS THIS BEFORE THE SUPREME COURT:  Well, for starters, the detention of enemy combatants at Guantanamo Bay was a clusterfuck from the beginning.  In the years that followed 2001, George Bush and friends were routinely in front of the Supreme Court trying to justify detaining suspected terrorists without Due Process.  In every case, the Supreme Court found in favor of the detainees, stating that the foreign terrorists are not entitled to the full Due Process protections entitled to citizens, but they are entitled to something.  This case takes a different angle than those cases, as these Plaintiffs are not seeking criminal constitutional rights, but are instead looking for civil damages as a result of those actions, as the Plaintiffs argue that the government officials in question knew what they were doing was wrong and detained the Plaintiffs anyway.

WHAT ARE THE RAMIFICATIONS – Suing the government is tough sledding, because the deck is stacked against you in the form of qualified and sovereign immunity.  In all cases, the government cannot be sued unless it consents to be sued, and as you can imagine, the government does not like to be sued that often.  For these defendants to be found civilly liable for their actions, the Plaintiffs have to prove a fairly high burden of showing that the Defendants knowingly violated their Constitutional rights and that the general rules relating to false arrest and imprisonment should apply to this fairly unique situation.  Should the Plaintiffs’ claims succeed, it could open the door for similar lawsuits against high government officials related to the War on Terror, or HYPOTHETICALLY, a certain order by the President that knowingly bent Constitutional rights and inconvenienced a large group of foreign citizens in the name of protecting Americans from terrorists.

ROOT FOR ASHCROFT IF:  you’re down with early 2000s nostalgia, like Brittany Spears, foam mesh trucker hats, and widespread paranoia about Middle East terrorism.

ROOT FOR ABASI IF:  you watched that one episode of Last Week Tonight with John Oliver about Guantanamo Bay and now you feel like an expert.

PREDICTION:  Ashcroft 4-2 (Kagan and Sotomayor are recused)


Last week, news began circulating about a U.S. registry for Muslim immigrants. Although this idea had been floated out by Trump during his campaign, the idea gained additional traction when a Trump advocate defended the registry on grounds that the U.S. Supreme Court had upheld a similar classification based on race in the 1940’s.  Factually, this last statement is true.  In 1944, the Supreme Court held in Korematsu v. U.S. that Japanese internment camps survived Constitutional scrutiny on grounds that national security warranted extreme measures during times of “emergency in peril”.   It is also true that this is one of the only cases not explicitly overruled where the Court permitted a governmental classification based on race.   That being said, any other statements, inferences or arguments that Korematsu is valid precedent to support a registry in 2016 are idiotic propositions that serve to only raise the bar for idiotic propositions during a time when idiotic propositions are something of a cottage industry.

To start, the concept of precedent stands for the position that new cases should be ruled in conformity with old cases to ensure that the law is consistent, predictable and fair.  Consider the following hypothetical, where the greatest person alive gets a DUI on the way home from a X-Mas party.  This person is generous, philanthropic, and humbled by their mistake.  The Court recognizes these factors and spares this person any punishment, reasoning that the embarrassment of the charge is punishment enough.  Now, imagine this same person is instead a dead-beat dad who has accumulated his 5th DUI charge on the way home from a child pornography party.  The Court is not only unsympathetic to this person’s concerns, but doubles the maximum sentence to set an example.  Although this particular situation may seem fair, it becomes much less palatable if the difference between these two people is only based on race, gender, religion or nationality.  In addition to the broader policy concerns, there are also practical benefits to a consistent application of the law.  If precedent applies evenly to everyone, lawyers can give better advice and civilians can better plan their conduct with a fixed idea of how the law is applied.    A good example of the value of uniform laws is in the great State of Delaware, where highly developed precedent in corporate law has made the First State the premier place to incorporate your business since the outcome of any dispute is more easily predictable.  It is also important to note that precedent serves to apply the law evenly, and is not just based on the individual facts of the case.  In the hypothetical above, it is not that all deadbeats are treated the same, but instead that DUI law applies evenly to every person regardless of who they are.      Therefore, the classification in Korematsu is not an open-gateway for any type of racial classification, but it merely sends the groundwork for how today’s Court would view a racial classification under the Constitution.

To that end, it is hard to see how Korematsu could serve as precedent because the legal reasoning underlying the Korematsu decision is inapplicable to a Muslim registry in 2016.  The legal basis for the Koretamtsu decision was under the Equal Protection Clause of the 5th and 14th amendment, which applies a two part test whenever the government classifies individuals differently.  The test, which considers (1) the government’s reason supporting the classification, and (2) how connected the classification is to the government’s stated purpose, becomes harder to pass depending on the classification.  If the government is classifying individuals based on an immutable characteristic (race, creed, nationality, religion), the test is called Strict Scrutiny and it is almost impossible to pass.  The reason the word “almost” is included in that last sentence is because of Korematsu, as this is one of the only government actions that has passed a racial classification under Strict Scrutiny.

While that sounds foreboding, note the following factors that played into the 6-3 Korematsu majority decision.  First, the government’s stated purpose for the internment camps were highly influenced by U.S. military relations in 1944.  Koretmatsu was issued approximately three years after Pearl Harbor and six months after D-Day.  To that end, the Court believed that the government had a compelling interest in the protection of national security by preventing espionage during a time of active war.   Regardless of how you feel about immigration, ISIS, or the Middle East, this concern is not present today.  The U.S. is not involved in a military conflict similar to the scale of World War III and the purpose behind the Muslim registry is not to prevent the same type of espionage.  These differences may become blurred depending how the World turns, but at present day, these differences invalidate Korematsu as precedent as under the first element of Equal Protection because today’s government does not have the same compelling reason to set up a registry that classifies immigrants by their religion.

The second element of strict scrutiny, considering whether the government’s policy is related to action, is another area where Korematsu can be distinguished based on how the mechanics of the internment camps related to the government’s concern.  In addition to highlighting the active conflict of World War II, the Court noted two specific elements of the Japanese internment camps that influenced its decision.  The first was the short of amount of time the government had to make a full and complete decision before evacuating Japanese citizens, out of fear that Pearl Harbor was the first sign of a West Coast invasion.  Once again, this concern is not present today since the Muslim registry is not a knee-jerk reaction to a suspected invasion of Muslim immigrants.  The second influencing factor was the temporary nature of the internment camps, where the Court noted that the evacuation was not meant to be permanent, but only until the active military situation could be resolved.  Although this may seem like a minor detail, the fact that a Muslim registry is permanent is a significant distinguishing factor, since the government’s specific burden under this element is whether the government’s action is the “least restrictive method” of carrying out the policy.  When applying this test, the Court has not been afraid to suggest alternatives to vet out a better way for the government to carry out its policy.  While the Court in Korematsu deferred to the government’s decision in active war, it is hard to see this Court, which repeatedly invalidated George W. Bush’s decisions on Guantanamo Bay following September 11th, would give the same deference.  Simply put, the surrounding factors and mechanics of the government action do not equate to surviving the same test under the Equal Protection Clause.

Lastly, it is important to note that although Korematsu has not been overruled, the belief that it still serves as binding precedent is the kind of stupidity that can only result from a higher education.  The Supreme Court does not overrule precedent by its own accord, but must be presented with a case that warrants overruling the decision.  The famous case of Brown v. Board of Education overruled Plessey v. Ferguson because there was a case warranting such a decision, and the same thing goes for anti-miscegenation statutes and criminal sodomy laws.  The only reason Korematsu has not been expressly overruled is that the United States government has not proposed a full-scale racial classification in the last 40 years, which I should note, IS A GOOD THING.  In addition, not every bad Supreme Court case needs to be overruled the way that Michael Scott declared bankruptcy in the Office, as many bad cases are simply eroded over time to show that the law has changed in a different directly.  To fill the void that a lack of government deportations created in the last six decades since Korematsu, Equal Protection law has developed to such a degree that the Court is now invalidating inferred racial classifications because governments no longer makes outright classifications based on immutable characteristics.  So no, Korematsu has not been overruled, but if there is any good thing that can come from this registry, it would be that the Court could finally clear the last major black eye from the history books.


WHAT HAPPENED:  In 2014 and 2015, President Obama passed two “executive orders” which pertained to immigration, the DACA and the DAPA.  In the interests of brevity, those two orders granted deferred action to two general classes of illegal immigrants, (1) people who arrived in the U.S. under the age of 16 and were now over 30, and (2)  parents of natural born citizens who never obtained their own citizenship.  These orders instructed the government against deporting those citizens, and instead allowing them to stay in the U.S., even though they would not be granted citizenship rights.

WHY IS THIS BEFORE THE SUPREME COURT:  Immigration issues are primarily Congress’ jurisdiction, as the Legislature has primary authority to create policy and regulations regarding the status of illegal immigrants.  Therefore, opponents of these actions claim the President has exceeded his authority to act.  On the other hand, the agency that performs these actions is under the President’s control and the President is allows to make edicts for those agencies to follow.  Therefore, the issue, in part, comes down to whether or not the President’s executive orders are so sweeping that they require greater action, of if the executive orders are within his ability to control lower agencies.

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION:  This case could determine the occupancy status of hundreds of thousands of people who are currently living in America, but do not have citizenship.  These people likely have no where else to go if they are removed from the country, or could be separated from their children if deported.  If the orders are upheld, this could allow the government to have a better handle on undocumented aliens, as people would be more likely to come participate in registration if they were not concerned about deportation.  On the other hand, these orders only stabilize the situation and do not provide a real solution to the concern citizenship and illegal immigrants.

ROOT FOR U.S.:  If you are OK with expanding Presidential Power to resolve a situation temporarily, and probably until a Republican is voted into office.  You are also probably an advocate for the legalization of marijuana.

ROOT FOR TEXAS:  If you hate President Obama, Obamacare, and any other Obama-related terms.  You are also probably someone who likes it when people follow the Constitution, at least when it comes to this situation.