The Federalist Society's National Lawyers Convention runs from today through Saturday. Many of the events are being live streamed. The panel sponsored by the Criminal Law Practice Group (of which I am an executive committee member and former chairman) is The Wisdom and Legality of Sanctuary Cities, today from 3:30-5:00 p.m. EST, 12:30-2:00 PST.
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A divided panel of the Ninth Circuit today decided City of Los Angeles v. Barr, No. 18-55599, the latest round in the battle over federal grants to cities that refuse even the simplest cooperation with efforts to deport criminal aliens. From the majority opinion by Judge Ikuta, joined by Judge Bybee:
Continue reading Immigration Cooperation and Federal Law Enforcement Grants.
Under the Double Jeopardy Clause, neither the federal government nor a state government can try a person twice for the same offense. But if the same act is a crime under both state and federal law, can each government try the person once, for a total of two?
Longstanding U.S. Supreme Court precedent says yes. Today the high court reaffirmed the "dual sovereignty doctrine" by a vote of 7-2 in Gamble v. United States, No. 17-646. Justice Alito wrote the opinion of the Court. Justices Ginsburg and Gorsuch wrote separate dissents.
Continue reading Separate Sovereign Doctrine Reaffirmed.
Corinne Ramey reports for the WSJ:
Federal prosecutors said they would seek the death penalty in the case of the man charged with terrorism for killing eight people by driving a truck along a bike path in New York.
The government's intention to seek capital punishment, which is rare, was made in a court filing Friday. Prosecutors say Sayfullo Saipov, who is from Uzbekistan, drove a rented truck on the bike path next to the West Side Highway in lower Manhattan on Halloween last year in an attempt to kill as many people as possible. Mr. Saipov told investigators that Islamic State videos he watched on his cellphone inspired him to carry out the attack, authorities said.
* * *
Earlier this month, lawyers for Mr. Saipov had argued that U.S. Attorney General Jeff Sessions, who ultimately makes the decision about whether to seek the death penalty, could have been influenced by [President] Trump's public statements [about the death penalty in this case].
Though it sounds flippant, one is tempted to answer the latter argument with "so what"? The Constitution unequivocally vests all executive authority in the President. All other executive officers derive their authority from him. Though Presidents traditionally have not gotten involved in decisions on particular prosecutions, no law forbids them from doing so, and any such law would be unconstitutional.
Continue reading Fed. Prosecutors Seek Death Penalty in NYC Bike Path Case.
Yesterday, U.S. District Judge John Mendez heard oral arguments in Sacramento in the federal government's suit against California over a triad of state laws. Associated Press has this story.
The argument was unusual in a couple of ways. First, it went all day. That was common in olden times, but these days it is unusual for any oral argument to go more than an hour, at least in my experience. Second, the judge told the parties up front to put aside their prepared remarks and go straight to Q & A.
According to the AP story, the judge was most skeptical of the California law regulating employer cooperation with the federal immigration authorities. " 'The statute really puts the employer between a rock and a hard place,' he said."
I also think that is the most vulnerable of the three, and CJLF's amicus brief focused on it. The other bills may, all or in part, fall into the category that Justice Scalia famously described as "stupid but constitutional."
Is a big chunk of Oklahoma, including much of the City of Tulsa, still officially part of the Creek Reservation because Congress never officially disestablished it, even though the land was dispersed to the individual members long ago?
That question will be considered by an eight-justice Supreme Court in the context of a capital murder case, Royal v. Murphy, No. 17-1107.
Chief Judge Tymkovich was a member of the panel and wrote a concurrence to the denial of rehearing en banc. It's one of those opinions that almost makes it unnecessary to write a certiorari petition to the Supreme Court. Just slap a cover on it and mail it in.
En banc review is not appropriate when, as here, a panel opinion faithfully applies Supreme Court precedent. An en banc court would necessarily reach the same result, since Supreme Court precedent precludes any other outcome. I write only to suggest this case might benefit from further attention by the Supreme Court.As the panel opinion explains, the three-part framework of Solem v. Bartlett, 465 U.S. 463 (1984), governs evaluating whether Congress has disestablished an Indian reservation. But strictly applying Solem's three-part framework in this context, which strongly suggests de facto disestablishment, evokes "the thud of square pegs being pounded into round holes." Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1193 (9th Cir. 2005) (Kozinski, J., concurring), rev'd and remanded, 551 U.S. 701 (2007), and vacated, 498 F.3d 1059 (9th Cir. 2007).
Beneath this legal question of Indian law and statutory construction is the justice of an actual murder case. If the panel opinion is correct, the State of Oklahoma lacks jurisdiction to prosecute crimes committed by Indians in a lot of territory that nobody today would think is part of a reservation. The factual part of the panel opinion is after the break.
Continue reading Disestablishing Indian Reservations, De Facto and De Jure.
The sports betting case decided by the Supreme Court today, Murphy v. NCAA, No. 16-476, involves the "anticommandeering doctrine." As Justice Alito explains in his opinion for the Court, "The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States." This doctrine is a relatively new one as constitutional law doctrines go. Today's opinion identifies a 1992 case, New York v. United States, as the "pioneering case."
The "sanctuary city" cases also involve the anticommandeering doctrine. The jurisdictions that want to release known criminals back into their populace rather than cooperating with Immigration and Customs Enforcement for their deportation claim that the federal government is trying to commandeer state and local resources for the enforcement of federal immigration law.
The Murphy case involves congressional limitations and requirements on the state legislature, however. That seems to present an easier question. No, Congress cannot stop a state legislature from repealing a state-law prohibition on an otherwise legal activity. (The Court itself did once prevent the repeal of an anti-discrimination law, but that involved an equal protection violation rather than congressional commandeering.)
A federal law which prevents state and local governments from forbidding their employees to spend infinitesimal amounts of government resources to share information with ICE (which is what 8 U.S.C. § 1373 does) seems pretty far removed. It does not appear that this case will have a large impact on the sanctuary cases.
John Myers reports for the L.A. Times:
Gov. Jerry Brown agreed on Wednesday to expand the California National Guard's efforts on crime and drug issues that cross the state's border with Mexico, but insisted troops would not be used to enforce immigration directives from President Trump.Here is the text of the letter:
"This will not be a mission to build a new wall. It will not be a mission to round up women and children or detain people escaping violence and seeking a better life," Brown wrote in a letter to Homeland Security Secretary Kirstjen Nielsen and Defense Secretary James N. Mattis. "And the California National Guard will not be enforcing federal immigration laws."
Continue reading Cal. Guard to Join Border Effort.
The U.S. Court of Appeals for the Ninth Circuit heard oral argument today in the cases of San Francisco v. Trump and Santa Clara v. Trump involving section 9(a) of Executive Order 13,768 which addresses eligibility for federal grants of jurisdictions that refuse to comply with a federal statute, 8 U.S.C. § 1373. CJLF's amicus brief is here. Maura Dolan has this story for the L.A. Times.
The court has the video here. USCA9 does have one of the best-run administrations of any court I practice in. Many courts stream argument video live and post it on the site eventually, but not many get the archive video up the same day.
From the L.A. Times:
The court has the video here. USCA9 does have one of the best-run administrations of any court I practice in. Many courts stream argument video live and post it on the site eventually, but not many get the archive video up the same day.
From the L.A. Times:
"The point of this order is to use federal dollars as a weapon to defund sanctuary cities that don't comply with the policy the president prefers," said Deputy San Francisco City Atty. Christine Van Aken."The policy the president prefers" in this case is an Act of Congress that was enacted over 20 years ago and signed by President Clinton. It's one of those pesky laws that the President "shall take Care ... be faithfully executed." See U.S. Const. art. II § 3.
Continue reading Oral Argument in USCA9 Sanctuary Case.
The Criminal Justice Legal Foundation has filed an amicus brief in United States v. California, USDC ED Cal. No. 2:18-cv-00490. Here is the Summary of Argument:
The Privileges or Immunities Clause of the Fourteenth Amendment has been construed very narrowly by the Supreme Court, but it has not been stripped of all meaning. Among the privileges that the Supreme Court has found included is the duty and right of every citizen to assist federal law enforcement and to give information regarding violations.
By the same principle, citizens have a right and duty to ensure their own compliance with federal law. Because the contours of the law are often uncertain and underlying facts are often unclear, ensuring compliance sometimes means going further than the measures that may, in retrospect, be found to meet the bare minimum for compliance. A state law that punishes citizens for doing anything more than the bare minimum required by federal law therefore, in practice, impairs the ability of the citizens to ensure their own compliance.
The United States has sued the State of California in federal district court in Sacramento, the state capital, seeking a declaration that three state statutes enacted for the specific purpose of hindering enforcement of federal immigration law are unconstitutional. The case is United States v. California, et al., 2:18-cv-00490-JAM-KJN, U.S. District Court for the Eastern District of California, assigned to Judge John Mendez.
California moved to transfer the case to the Northern District, headquartered in San Francisco. The ostensible reason is that there are common questions with the grant-money cases already going on there. The real reason is that the Northern District would assign the case to Judge Orrick, whose rulings to date demonstrate that he is so vehemently on their side that he is essentially a member of The Resistance. See this post.
This morning Judge Mendez denied the motion.
Update: The hearing on the preliminary injunction is set for June 20.
California moved to transfer the case to the Northern District, headquartered in San Francisco. The ostensible reason is that there are common questions with the grant-money cases already going on there. The real reason is that the Northern District would assign the case to Judge Orrick, whose rulings to date demonstrate that he is so vehemently on their side that he is essentially a member of The Resistance. See this post.
This morning Judge Mendez denied the motion.
Update: The hearing on the preliminary injunction is set for June 20.
Well, looks like Californians won't be donning gray uniforms and replacing the bear flag with the stars and bars. Initiative 17-0005, filed by Cindy Sheehan et al., has failed to qualify. The AG's summary of the initiative, minus the cost part, is:
Repeals provision in California Constitution stating California is an inseparable part of the United States. Directs Governor, in consultation with those members of Congress who represent California, to negotiate continually greater autonomy from federal government, up to and including agreement establishing California as a fully independent country, provided voters agree to revise the California Constitution. Creates new state commission to research and make recommendations on ways of increasing California's autonomy and independence.I'm so relieved.
The Manhattan Institute asked several of its scholars for the "top takeaways" from the President's State of the Union address. Here is Heather Mac Donald's note:
The fact that the President did not include a call for large-scale reductions in sentencing was also quite encouraging. His emphasis on the MS-13 gang was warranted, but domestic gangs cause great harm as well. Helping the areas most afflicted by gangs will require domestic efforts as well as immigration enforcement. Later, while discussing the drug problem, the President said, "We must get much tougher on drug dealers and pushers if we are going to succeed in stopping this scourge." That does not sound like he is buying the line that drug dealer are harmless "non-violent offenders."
Helping the most afflicted areas will also require cooperation between state and federal authorities; the mindless "resistance" attitude of some local officials is killing their own people and needs to stop.
The president called for reforming prisons to help inmates get a second chance at life after their release. That is a wiser approach to criminal justice reform than attacking "mass incarceration," a duplicitous term that ignores two crucial facts: first, that every prisoner is charged and sentenced individually through the due process of the law, and second, that the only criminals who end up in prison either have very long records or have committed very serious crimes. Incarceration played a crucial role in the twenty year crime drop from the early 1990s through the mid-2010s. But while the incarceration build-up was both procedurally fair and necessary, more can be done to try to help ex-cons become productive citizens. The main focus should be on having every prisoner work at a paying job while incarcerated that will give him usable skills on the outside. Universal work for inmates is costly and logistically difficult, especially with high-security prisoners; unions have fought prison labor to avoid competition. But it is a challenge worth taking on to try to break the cycle of recidivism.I agree that in terms of in-prison programs, employment should be number one. The long-standing fears that prison production will cost some law-abiding Americans their jobs should not be taken lightly, but surely in today's global economy segments can be identified where substantially all of the market is imported.
The fact that the President did not include a call for large-scale reductions in sentencing was also quite encouraging. His emphasis on the MS-13 gang was warranted, but domestic gangs cause great harm as well. Helping the areas most afflicted by gangs will require domestic efforts as well as immigration enforcement. Later, while discussing the drug problem, the President said, "We must get much tougher on drug dealers and pushers if we are going to succeed in stopping this scourge." That does not sound like he is buying the line that drug dealer are harmless "non-violent offenders."
Helping the most afflicted areas will also require cooperation between state and federal authorities; the mindless "resistance" attitude of some local officials is killing their own people and needs to stop.
A motions panel of the Ninth Circuit Court of Appeals has handed a mixed bag to the litigants in the "Sanctuary Cities" cases.
There are a total of four cases in the Ninth Circuit. Two are the Government's appeals from the preliminary injunctions, and two are from the final judgment and permanent injunction. Of these, one each is from San Francisco and one from Santa Clara County (San Jose and vicinity).
The Government wanted to consolidate all four cases, maintaining the expedited schedule for preliminary injunction appeals. The counties wanted the preliminary injunction cases dismissed as moot, since a preliminary injunction has no legal force once it is supplanted by the permanent injunction, and to maintain the leisurely schedule of the final judgment cases.
The motions panel (Reinhardt, Paez, and Bea) dismissed the preliminary cases as moot. But don't cheer too loud, sanctuary fans. "The court construes appellants' motion to consolidate as a motion to expedite these appeals. So construed, the motion is granted in part." The counties' briefs are due February 5, not April 26 as before. Extensions? Fuggitaboudit.* The case will be set for argument on the April calendar, with the exact date, time, and place to be announced later.
The "merits panel" that hears the case will not necessarily be the same as the "motions panel" that issued today's order.
* Well, actually, they said, "No written motions for extensions of time under Ninth Circuit Rule 31- 2.2(b) will be granted absent extraordinary and compelling circumstances."
Update: The court is looking at its April 9-13 session in San Francisco and has asked counsel for the parties for their availability on those dates.
There are a total of four cases in the Ninth Circuit. Two are the Government's appeals from the preliminary injunctions, and two are from the final judgment and permanent injunction. Of these, one each is from San Francisco and one from Santa Clara County (San Jose and vicinity).
The Government wanted to consolidate all four cases, maintaining the expedited schedule for preliminary injunction appeals. The counties wanted the preliminary injunction cases dismissed as moot, since a preliminary injunction has no legal force once it is supplanted by the permanent injunction, and to maintain the leisurely schedule of the final judgment cases.
The motions panel (Reinhardt, Paez, and Bea) dismissed the preliminary cases as moot. But don't cheer too loud, sanctuary fans. "The court construes appellants' motion to consolidate as a motion to expedite these appeals. So construed, the motion is granted in part." The counties' briefs are due February 5, not April 26 as before. Extensions? Fuggitaboudit.* The case will be set for argument on the April calendar, with the exact date, time, and place to be announced later.
The "merits panel" that hears the case will not necessarily be the same as the "motions panel" that issued today's order.
* Well, actually, they said, "No written motions for extensions of time under Ninth Circuit Rule 31- 2.2(b) will be granted absent extraordinary and compelling circumstances."
Update: The court is looking at its April 9-13 session in San Francisco and has asked counsel for the parties for their availability on those dates.
Two months ago, I noted that Attorney General Sessions had formally clarified the scope of the defunding provision of President Trump's Executive Order 13768 on so-called sanctuary cities and federal grants. See also this post from April on the misguided injunction against that provision.
After the AG's clarification, the Government moved for reconsideration. Today, to the surprise of no one, Judge Orrick denied that motion.
Unlike the travel ban case, this case does not involve a temporary order that is or shortly will be moot. If the Ninth Circuit does not reverse the injunction, it should go to the Supreme Court.
After the AG's clarification, the Government moved for reconsideration. Today, to the surprise of no one, Judge Orrick denied that motion.
Unlike the travel ban case, this case does not involve a temporary order that is or shortly will be moot. If the Ninth Circuit does not reverse the injunction, it should go to the Supreme Court.
