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The Sanctuary City Case

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Within days of his inauguration, President Trump signed Executive Order 13768.  Section 9 of that order addressed so-called "sanctuary cities."  The header paragraph and subdivision (a) read (emphasis added):

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
This section has been challenged in court as illegal and unconstitutional.

If it occurs to you that a direction from the chief executive to his subordinates that is expressly limited by its terms to actions "consistent with law" cannot possibly be illegal, congratulations, you understand law better than a federal district judge.

Amplifying Molehills Into Mountains

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This story reminds me of an old REO Speedwagon song:

But I know the neighborhood
And talk is cheap when the story is good
And the tales grow taller on down the line
Ian Millhiser, the Justice Editor at ThinkProgress, informs us:

President Trump "is considering a proposal to mobilize as many as 100,000 National Guard troops to round up unauthorized immigrants, including millions living nowhere near the Mexico border," according to the Associated Press.
But AP did not say that.  Notice the placement of the opening quotation mark.

A Flawed Restraining of a Flawed Order

Michael McConnell, Stanford Law Professor and Hoover Institution scholar, has this article at Hoover on last week's Ninth Circuit decision.

Lesson 3: Judge-Shopping Must Be Curbed

Here is the third lesson to be learned from the debacle noted this morning.

Plaintiffs seeking to enjoin government actions have way too much choice where to file their suits.  Further, there is not enough control on conflicting decisions when it comes to injunctions.

The WSJ article noted in a previous post this morning reports on the development of the strategy of the opponents:

Democratic attorneys general and their aides held a series of conference calls. They agreed to mount separate lawsuits across the country. The goal: try lots of different arguments to block the ban in hopes that one of them would succeed.

Minnesota's attorney general, Lori Swanson, joined the Washington lawsuit. New York Attorney General Eric Schneiderman joined the American Civil Liberties Union's case in federal court in Brooklyn. Massachusetts Attorney General Maura Healey did the same with an ACLU case in Boston.

Not only did they throw as much against the wall as they could to see what stuck, they threw it against as many walls as they could, and it only needed to stick to one.  Judge Gorton in Boston declined to extend his earlier, temporary block of the executive order, but Judge Robart in Washington did block it, and the result was that it was blocked.  Conceivably, a group of persons opposed to some government action could file coordinated suits in every district in the country, and they would only have to win one to get a halt for the time being.

Even when only one suit is filed, broad venue rules and "related case" rules give the challengers too much leeway to steer cases to the judges they know will be favorable to them.  The habeas corpus "fast track" regulations were held up for over three years by order of a judge with no jurisdiction in a case steered to her in exactly that manner.

Congress should take a hard look at the rules regarding venue in cases that seek nationwide injunctions.  "Venue" sounds like a boring subject, but this case illustrates how much it can matter.

A Debacle and a Learning Moment

The WSJ has this editorial titled Trump's Judicial Debacle noting a number of ways that the Administration and the courts were both wrong. "President Trump's immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy."

The editorial goes to explain several ways the Ninth Circuit decision is wrong and how the Administration seemed ill-prepared to defend the order.  At the end, the editorial has some worthwhile thoughts on what to do now.

There are lessons to be learned from this debacle, though.  I will note a few of them in separate posts.
Jose de Cordoba and Santiago Perez have this article in the WSJ with the above headline.

MEXICO CITY--Influential Mexicans are pushing an aggressive and perhaps risky strategy to fight a likely increase in deportations of their undocumented compatriots in the U.S.: jam U.S. immigration courts in hopes of causing the already overburdened system to break down.

The proposal calls for ad campaigns advising migrants in the U.S. to take their cases to court and fight deportation if detained. "The backlog in the immigration system is tremendous," said former Foreign Minister Jorge Castañeda. The idea is to double or triple the backlog, "until [U.S. President Donald] Trump desists in this stupid idea," he added.

Talk about stupid ideas.  A concerted attack on our judicial system by foreign influences might just spur Congress to fund a big expansion of the system and thereby increase deportations.  Nothing makes Americans come together quite like being attacked from outside.  "Perhaps risky" is an understatement.

Yesterday I said the Administration should, in addition to rewriting the travel restriction executive order, take the present case up to the Supreme Court.  That was based on a legal assessment that the Ninth Circuit decision is wrong.  (See also Rivkin & Casey in today's WSJ.)

In addition to the reasons that I gave yesterday, let me add that the claim that this order is a "Muslim ban" is absurd.  Based on data from the Pew Center, I estimate that the seven countries in question have only 11% of the world's Muslim population.  If one wanted to ban a whole group of people, an action that only affects one out of nine of the group is not the way to go about it.

However, sometimes there are strategic reasons for not taking a position.  Even though the decision is wrong, and clearly so in my opinion, there may not be five votes on the present eight-member Supreme Court to overturn it.  Affirmance by an equally divided court is a nothingburger, and that would be a real possibility.

Finally, and perhaps most importantly, the presence of this very hot-button case in the Supreme Court would give the Democrats and the left-leaning media ammunition in the critically important confirmation battle for Judge Gorsuch.  The Democrats will ask him about the case or questions closely related to the case, he will decline to answer, and even though that declination is quite proper it will look evasive on camera.  The Dems will still try to use it, of course, but their efforts will be less effective if it is behind us.

Sometimes you have to cut your losses and move on.  While the Administration's legal position is correct, taking the case up to SCOTUS may not be strategically wise.

Update:  The Ninth Circuit this afternoon ordered briefing on whether to hear the case en banc.
The Ninth Circuit has declined to stay the temporary restraining order issued by Judge Robart in Washington State preventing enforcement of Executive Order 13769, the controversial travel restrictions on nationals of seven countries.

The Ninth is, of course, correct that due process protections apply to legal permanent residents (i.e., "green card" holders).  Yet even though the Administration has said it won't apply the limitations to permanent residents, it held that such application was not moot.
The U.S. Court of Appeals for the Ninth Circuit issued the following order today in State of Washington v. Trump et al., No. 17-35105:

The State of Hawaii's emergency motion to intervene (Docket Entry No. 21) is denied for the purposes of this appeal only. The State of Hawaii's motion for leave to file an amicus curiae brief (Docket Entry No. 21) is granted. The State of Hawaii's amicus brief has been filed.

Appellants and appellees shall appear by telephone for oral argument on Tuesday, February 7, 2017 at 3:00 p.m. PST. Each side will be permitted 30 minutes of argument time. Call-in instructions will be provided to the appearing parties. A recording of the oral argument will be made available to the public promptly following the conclusion of oral argument.

All other pending motions will be addressed by separate order.
The court's case information page on this "case of interest" is here.
We're about to find out.


To be clear, my father's parents were immigrants from Germany.  They followed the rules to get here, and they followed them afterwards.  They sought no help from the government and got none.  

Our country has relatively low crime right now, thanks in very large measure to the bi-partisan, get-tough policies of the Bush and Clinton years.  But to say that we have relatively low crime is hardly to say that we can afford more.  In particular, with violent crime on a shocking upswing, as it has been for at least the last two years, we don't need more crime from individuals who have no right to be in the country to start with.

Academia should be eager for data about how much crime we're getting from such people.  Somehow, though, I suspect that what we'll see from academia is less curiosity than bile.

Executive Order on Sanctuary Cities

Congress enacted this law over 20 years ago (8 U.S.C. § 1373(a)):

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
And, of course, the Constitution has provided since its ratification in 1788: 

This Constitution, and the laws of the United States which shall be made in pursuance thereof ..., shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
So there is no real question that state or local laws which contradict the federal law are void.  But what to do about it?  Today President Trump issued as executive order titled Enhancing Public Safety in the Interior of the United States, which provides in part:
The U.S. Supreme Court held its conference today and took up 16 cases, 4 of which are criminal or habeas corpus cases.

Weaver v. Massachusetts, No. 16-240:  The defendant claims his lawyer was ineffective for failing to object to a closure of the courtroom during empanelment of the jury.  Violation of the right to a public trial, when considered directly, is a "structural" error that is reversible without a showing that it actually prejudiced the defendant, but an ineffective assistance of counsel (IAC) claim requires a showing of prejudice under Strickland v. Washington.  Does IAC require a showing of prejudice when the underlying error is "structural"?  I believe Strickland is clear enough that the answer is "yes," but there is enough of a circuit split for the high court to take it up.

Maslenjak v. United States, No. 16-309, involves a question of whether revocation of naturalized citizenship in a criminal proceeding for a false statement during naturalization requires a showing of materiality.

McWilliams v. Dunn, No. 16-5294, involves a question regarding the degree of independence needed for appointed mental health experts under Ake v. Oklahoma.

Davila v. Davis, No. 16-6219, involves the continuing fallout from Martinez v. Ryan and Trevino v. Thaler.  In Coleman v. Thompson in1992, the Supreme Court limited the damage from ineffective assistance claims to prevent a never-ending spiral of every lawyer to take up a case claiming that he should be allowed to raise a new issue because the previous lawyer was ineffective in not raising it.  Coleman drew the line at direct appeal.  Ineffective assistance at trial or on direct appeal could be "cause" for raising an issue defaulted in those proceedings, but from state collateral review onward a claim would be defaulted if not raised in the proper proceeding regardless of counsel's performance.  As with other procedural default rules, a strong showing of actual innocence was an exception.

Preventable Murder

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Readers know that I have significant problems with Donald Trump, starting with his basic manners.  He nonetheless rode to the nomination on what I shall call a stern view of immigration, sometimes bordering on xenophobia.  

That said, I am compelled to give credit where credit is due.  Trump is on the money in excoriating the present Administration's lack of seriousness in its "enforcement" of immigration law.  As usual, it's not the people who go to Georgetown parties and have mahogany paneled offices at DOJ who pay the price, as witness this story in today's Washington Post:  "Immigration officials:  Suspect in Maryland gang murder had been deported twice."

A 28-year-old gang member charged in the brutal stabbing death of a Maryland teenager had been deported twice to El Salvador in the past two years, according to U.S. immigration officials.

Oscar Delgado-Perez is expected to make his first appearance in Montgomery County court on Friday afternoon in a killing detectives suspect was over gang bragging rights.

Detectives say that on June 16, Delgado-Perez and at least two other members of the MS-13 gang stabbed Cristian Villagran-Morales, 18, more than 40 times in a park in Gaithersburg. Delgado-Perez "directed" the attack, detectives wrote in an affidavit filed in court.

The Left is fond of saying that the problem behind the huge spike in violent crime this year and last is lack of trust in law enforcement.  Like so much else the Left says, this is hogwash.  The problem is lack of fear by the criminally-inclined toward law enforcement  --  a lack that is, under our present leadership, appalling, if justified.


Well, this is different.

One of the big cases, and big disappointments, of the last Supreme Court term was United States v. Texas, 15-674.  Texas challenged the Obama Administration's deferred action program for illegal immigrants.  Texas won in the Fifth Circuit, and the Supreme Court, minus the late Justice Scalia, divided 4-4.  That means the Fifth Circuit decision stands, but no Supreme Court precedent is established.  It is as if the high court had never taken the case up at all.

Now the Acting Solicitor General has filed a petition for rehearing asking for "rehearing of this case before a full nine-Member Court."  But who knows when the Supreme Court will have nine Justices again?  Is this a "springing" rehearing petition, filed now but activated only when a ninth Justice is confirmed?  Sounds like some dimly remembered nightmare from property law class.

Hanson on Orlando

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If Donald Trump seriously wants to surround himself with "the best people," by which I think he means people generally aligned with his viewpoint but who are serious thinkers and learned in their fields, he might start with Victor Davis Hanson.  Hanson has this article in the City Journal.

Once again, as in the case of the Tsarnaevs and San Bernardino murderers, the shooter and his associations were on federal authorities' radar--and again to no avail. Apparently, dozens of Americans must be massacred every so often so that the rest of us can avoid the politically incorrect charge of being "Islamophobic." At some point, intelligence authorities will have to take seriously American-born Muslims who consume ISIS propaganda and espouse radical Islamic hatred.

Still more monotonous themes: as in the case of Major Hasan (the Fort Hood jihadist), the Tsarnaev clan (Boston Marathon), and Syed Rizwan Farook (San Bernardino), there is something deeply wrong with American immigration policy and the attitude of us, the lax host, to newcomers. In too many deadly cases, a generation of Muslims goes to great lengths to reach the United States only to raise an American-born or naturalized ungracious and unappreciative generation that apparently grows to hate the bounty and freedom of America to such a degree as to blow up, shoot, and maim innocent Americans. Immigration to the U.S., and citizenship itself, should be seen, again, as a privilege, not a right--and assimilation and integration, not multicultural separatism and ethnic and religious chauvinism, should be the goal of the host. We need not single out Muslims in terms of restricting immigration, but we should take a six-month timeout on all would-be immigrants from countries in the Middle East deemed war zones--Afghanistan, Iraq, Iran, Lebanon, Libya, Palestine, Pakistan, Syria, and Yemen--not only for our own immediate security but also to send a general message that entrance into the U.S. is a rare and prized opportunity, not simply a cheap and pro forma entitlement.

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