judiciary

  Read more about Court dismisses lawsuit against Oregon Measure 88!

"The state? I am the state!" — The Sun King, Louis XIV of France

"A traitor is everyone who does not agree with me." — George III of England

"I've got a pen, and I've got a phone." — Barack Obama

I will leave it to others better at punditry to offer the definitive remarks on President Obama's final state of the union speech. I found it to be an unappetizing blend of feel-good, defensiveness, and preacher-like hectoring on living up to our better natures — as defined by him.

Immigration figured prominently: "fix[ing] the broken immigration system" was mentioned right off the bat as one the items yet to be accomplished during his presidency. It also formed a consistent subtext in remarks about immigrants, inclusiveness, not blaming aliens for depressed wages, etc. But there was nothing in the way of detail for anyone trying to follow the direction these efforts to "fix" the system might take.

This may well be because the president has learned the peril of telegraphing his moves in advance, most particularly when they involve the invidious, imperial, and constitutionally dubious business of using "executive action" to achieve what he cannot bully Congress into doing.

But the clues are there.

When interviewed for a cloying article published in New York Magazine, recently appointed Attorney General Loretta Lynch commented that "My goal is to position the department [of Justice] where it will carry on in all of these issues long after myself and my team have moved on."

One suspects that it is not just Lynch, and not just the Department of Justice (DOJ) where this effort is taking place to embed into the organs of government, on a long-term basis, left-leaning progressive policies. How, exactly, might the president and his cabinet accomplish this?

There are two ways, and the first has become well known: using "executive action" to stretch the power of the presidency into arenas constitutionally preserved to other branches of government to achieve what they wish. Even if we were to assume that the next president promptly begins the process of rescinding these actions, there have been so many, and they have been so far-reaching, that it will take years to undo the damage, if indeed it can be undone. The federal bureaucracy is like a battleship; formidable, but slow to change direction precisely because of its awesome size and complexity.

Which brings us to the second way the president and his cabinet can push their agenda long after vacating their chairs. It is well known that presidents, all presidents, regardless of party, eagerly cram the federal judiciary with appointees who share their views, at the district and appellate court levels and — the crown jewel — even the Supreme Court when vacancies appear, which happens rarely because federal judges and justices are given lifetime appointments. While there are only nine Supreme Court justices, there are hundreds of district and appellate court judges, so vacancies appear regularly.

Less well known is how to manipulate the federal bureaucracy, which is so large and so all-pervasive in virtually every sector of society that it has been referred to by some as "the secret state." Others have observed that because of the extraordinary growth of government, our democratic republic has transformed itself into an "administrative state," in which power has accreted into the hands of powerful agencies responsible primarily to the executive branch. The Obama White House has excelled in understanding and manipulating this dynamic.

By taking control over key positions (and by this I do not mean the political appointees themselves, who come and go with each administration), an administration can influence events years into the future. Consider, for instance, DOJ, since we began this discussion with the Lynch interview. In the immigration context, a key component of DOJ is the Executive Office for Immigration Review (EOIR). EOIR is composed of both the immigration courts and the appellate tribunal, the Board of Immigration Appeals (BIA). Every immigration judge or BIA member is appointed by the attorney general, and they are for all intents and purposes permanently tenured. It would take egregious acts of malfeasance to remove them.

These are the officials who literally define the course of immigration hearings throughout the entire nation. Place into those positions enough individuals who view immigration through the liberal filter of the Obama administration and you have skewed the direction of immigration enforcement for decades to come. Add significant new immigration judge or BIA positions into the mix, approved by Congress due to court workloads and backlogs, and you have even further shaped the future into a funnel of your choosing.

The same can be done at the Department of Homeland Security, again sidestepping the political appointees who come and go with regularity, and pushing down to the next one or two levels of the bureaucracy. By exercising philosophical and political litmus tests for those you choose to appoint as your head of asylum and refugee affairs (who will in turn select the officers who perform the function of approving and denying applicants for asylum), you have effected a near-permanent influence on how those adjudications will be performed. As recent events have shown us, there is a direct and sometimes adverse effect between the quality of those adjudications, and national security and public safety.

As we lurch through this last year of Barack Obama's presidency, some of the changes he effects may be invisible to the naked eye, but make no doubt that Lynch was being neither rhetorical nor hyperbolic in her remarks in asserting that they will be felt for generations to come.
  Read more about Shape Immigration System for Years to Come

WASHINGTON — The federal immigration court system should be separated from the Justice Department and operated independently of federal law enforcement, the top two leaders of the immigration judges' union said Wednesday.

Judge Dana Leigh Marks, president of the National Association of Immigration Judges, said immigration judges act as arbiters in deportation cases being argued by Homeland Security Department lawyers but judges also are treated as attorneys for the government.

As employees of DOJ's Executive Office for Immigration Review, Marks said, the judges' dual roles can potentially blur the lines for judges who are supposed to act as neutral arbiters in a complicated court system.

"Our goal is to serve as a neutral court, but paradoxically we are housed in a law enforcement agency," Marks said.

And often, decisions about how the court is run are made beyond the court system.

Marks said an example of this is the recent decision by the Obama administration to have immigration courts start hearing cases of newly arrived immigrant children caught crossing the border alone before all other pending cases.

She said there is no other court system in which the government would be allowed to order a total overhaul of the docket, placing particular cases at the top. Marks, a judge in San Francisco, spoke Wednesday at the National Press Club with Denise Noonan Slavin, a Miami-based judge who is the union's executive vice president.

In a statement, the DOJ agency said the immigration court system is designed to be handled within the Justice Department and separating it "would take significant resources."

The type of civil administrative adjudications that EOIR conducts are designed to be handled within the structure of the Department and it would take significant resources to create an agency separate from an executive branch cabinet officer.

Beyond potential conflicts of interest, the judges said the DOJ agency and the court system have been underfunded for many years, which has contributed in part to the backlog of more than 375,000 pending cases.

Because of the backlog it can take several years for an immigration cases to be resolved.

Slavin said investing more money in the court system would solve many problems. Just under 2 percent of immigration enforcement spending goes toward immigration courts, Marks said.

And while creating a new, independent immigration court system might be costly initially, she said it would ultimately be more efficient.

"If your gas tank has a leak do you keep filling it up with gas or do you fix it first?" Slavin asked. Read more about Immigration judges' union advocates for independent, stand-alone court to rule on deportations

The Clackamas County Sheriff’s Office has released two jail inmates who officials were holding at the request of the U.S. Immigration and Customs Enforcement agency.

Clackamas County Sheriff Craig Roberts said Wednesday ....released suspected undocumented immigrants from custody in the county jail if there is no warrant for their arrest. The move follows a federal judge’s ruling that the county violated a woman’s Fourth Amendment rights by complying with a request to keep her by immigration officials.

The Multnomah County Sheriff's Office lifted 50 holds since the ruling.

U.S. District Court Judge Janice M. Stewart ruled Friday that county officials misinterpreted a request...

The requests to hold inmates in the jail are common, and the county complies...
  Read more about Two released from Clackamas County jail since ruling that county violated woman's Fourth Amendment rights

A federal appeals panel on Friday upheld an eastern Nebraska city's ban on renting to people who aren't in the U.S. legally, opening the door for the town of Fremont to begin enforcing its law and offering implications for other cities with similar ordinances.

Fremont voters handily approved a measure in 2010 that bans hiring or renting to people who can't prove they are in the country legally.

Last year, U.S. District Judge Laurie Smith Camp ruled that parts of the ordinance denying housing permits to those not in the country legally were discriminatory and interfere with federal law. But the city has been enforcing its requirement that businesses use federal E-verify software to check on potential employees.

On Friday, two judges of a three-member panel of the 8th U.S. Circuit Court of Appeals rejected that reasoning, leading the majority to reverse the ruling and vacate the lower court's injunction against that part of the ordinance.

Judge James Loken wrote that the plaintiffs failed to show the law was intended to discriminate against Latinos or that it intrudes on federal law.

Lawyers for the plaintiffs said they will confer with their clients before determining whether to ask the full 8th Circuit to review to the case.

The ruling appears counter to decisions in other courts on similar local laws, said Aaron Siebert-Llera, an attorney with the Mexican American Legal Defense and Educational Fund who represented several U.S.-born Latino home renters and a Fremont landlord who challenged the ordinance.

Siebert-Llera noted that two other federal appeals courts ruled against the communities of Farmers Branch, Texas and Hazelton, Pa., which have similar laws targeting landlords and employers to dissuade them from renting to or hiring people in the country illegally. Both cities have appeals pending before the full federal circuit courts.

"You've got the U.S. Senate passing sweeping immigration reform. You've got this huge, nationwide change going on," he said. "Then you have a decision like this coming out."

The American Civil Liberties Union, which also sued over Fremont's ordinance, bashed the 8th Circuit opinion.

"The court majority failed to recognize that Fremont's attempt to exclude undocumented immigrants from the city's borders is not only un-American, it's unconstitutional," said Jennifer Chang Newell, an attorney for the ACLU's Immigrants' Rights Project.

Eighth Circuit Judge Steven Colloton agreed with the reversal and vacating of the injunction, but said the plaintiffs lacked standing in the case, meaning they did not show how they had been or could be harmed by Fremont's law.

Siebert-Llera took issue with that opinion, noting that one of the plaintiffs showed she was forced to buy a mobile home, because she could not find anyone who would rent to in Fremont.

In a dissent, Judge Myron Bright agreed with the lower court that parts of the ordinance interfere with federal law.

"The ordinance will impose a distinct burden on undocumented persons by preventing them from renting housing in Fremont," Bright wrote. "This denial of rental housing is paramount to removal from the city. And, as the Supreme Court has made clear, removal is entrusted exclusively to the federal government."

Kris Kobach, a Kansas attorney who represented Fremont and helped draft its ordinance and others around the country, lauded Friday's opinion and said it will have implications for both Farmers Branch and Hazelton as appeals courts look at their ordinances.

"And I think it has indirect implications for cities all across the country, and certainly cities in Nebraska, that may wish to take similar steps to stop the negative effects of illegal immigration," Kobach said.

Kobach said as soon as next week, the city will begin enforcing the part that requires all renters in the city to apply for an occupancy permit and denies those permits to people not legally in the country.

The ordinance stirred a whirlwind of controversy in June 2010, when roughly 57 percent of Fremont voters who turned up at the polls supported it. The measure catapulted the city into the national spotlight and spurred comparisons with Arizona and other cities embroiled in the debate over immigration regulations.

Fremont, about 35 miles northwest of Omaha, has seen its Hispanic population surge in the past two decades, largely due to the jobs available at two meatpacking plants just outside the city. Census data show the number of Hispanics soared from 165 in 1990 to 3,149 in 2010.

It's unknown how many immigrants not legally in the country may live in Fremont. According to census figures, 1,259 noncitizens live there, but that figure includes people living in the U.S. legally.

Fremont city officials declined to comment Friday, saying they wanted time to review the ruling. Read more about Federal panel: Neb. city's immigration law legal