In the State of Washington vs President Donald J. Trump, the Chief Executive's power to legislate via executive order has been successfully challenged through two levels of federal court proceedings. The Ninth Circuit Court of Appeals upheld a federal district court judge's temporary stay of the executive order.

The President, vowing to take the dispute to the SCOTUS, tweeted: "SEE YOU IN COURT. THE SECURITY OF OUR NATION IS AT STAKE." Two Democratic appointees and one Republican appointee made-up the Ninth Circuit panel that decided the case.

The at-issue executive order, titled Protecting the Nation for Foreign Terrorist Entry in the United States, imposed a 90-day ban on individuals entering the country from 7 Muslim-majority countries. The appeals court based its decision on the federal government's failure to show a likelihood of success on the merits of the case, as well as a failure to demonstrate how the country would be irreparably harmed by a stay of the new executive immigration policy.

Citing the 9/11 terrorist attacks, the government's argument focused on deteriorating conditions in the target countries due to war, strife and civil unrest, claiming that foreign-born malfeasors have been implicated in subsequent terrorist plans. Due to the speed with which these claims have been put through the courts, the Ninth Circuit admitted it had very little facts on which to make their ruling.

Ultimately, the Ninth Circuit's 29-page decision concluded that the executive order did not provide what the 5th Amendment's Due Process clause requires. The due process elements found lacking are a hearing and notice that the affected individual's right to travel was suspended. The legal analysis of the Ninth Circuit, however, fails to distinguish green-card holders [a group that does have a set of Due Process rights] from visa holders, visa applicants, and refugees [groups that have lessened rights to Due Process].

One of the chief political issues addressed by the appellate court is the executive order's effect on the refugee program, particularly from Syria. Washington State alleged, from a legal perspective, that it was suffering ongoing economic harm due to the detention of university professors and students, key tech industry executives, and other important business people; all foreigners.

Curiously, the decision does not even mention the applicable federal law that grants POTUS broad powers, on national security grounds, to regulate who gets to come into the United States:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

If the panel's decision is the subject of an en banc review [i.e. further review by the entire bench of the Ninth Circuit] or by the SCOTUS, this failure to properly analyze the law could result in a reversal.

Also, rather than bringing the case at the state level, the constitutional "standing" requirement calls for a particularized injury. Thus, bringing the cases of individuals actually affected by the executive order travel restrictions may have been the better approach. This approach was scrapped in order to get the suits filed instantaneously.

Today, U.S. Department of Justice lawyers are preparing a petition for writ of certiorari to the United States Supreme Court. What normally takes years, will unfold in a matter of weeks, if the SCOTUS agrees to take the case.

If the petition for cert is granted, the Court may hear the case without its 9th justice; presumably Judge Gorsuch, if he is confirmed by the Senate. If the petition is denied, then the Ninth Circuit's decision becomes the law of the land.

This case is an important illustration of the checks and balances set out in the United States Constitution. Executive power, which ebbs and flows from decade to decade, has its limits.

Here at this blog, while we recognize the state's strong interest in the robust screening of foreign applicants for entry into the United States, there certainly is a downside to unchecked executive power. When the Chief Executive deigns to rule via executive order, and the orders that overreach are not immediately challenged, either by Congress or in the federal courts, then one executive order becomes a dozen, then a hundred. Before we know it, our civil liberties are eroded, not just those of foreigners.

Federal lawsuits, on the other hand, especially those that challenge the scope of the executive's powers, must properly articulate an injury-in-fact; not just attenuated claims of injury absorbed by a few states.

Post #579

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President Obama's immigration reform via executive fiat was all but repealed by the Supreme Court in an unusually brief decision in United States v Texas that stated in its entirety, "[t]he judgment is affirmed by an equally divided  court."

That judgment, issued by a federal judge in Brownsville, Texas, granted Texas' request to enjoin enforcement of the executive policy; a series of recent executive directives made through the Department of Homeland Security known as Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”).

The terse per curiam decision has no precedential effect thus, it does not bind lower courts. But by upholding the lower court's injunction of DAPA, the SCOTUS effectively blunted the power of the President to sidestep a gridlocked Congress through the passage of a series of executive orders.

Fallout from this decision leaves the fate of more than 11 million illegal immigrants and their families unresolved, foreclosing the brief glimpse of opportunity to achieve legal status here in the United States.

Post #545

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It's that time of year when the SCOTUS is awash in oral arguments that will lead to the seminal opinions of this term. So it was yesterday at the High Court in Washington, D.C. for argument in the case of United States v Texas, posing an important immigration policy question that tests the very limits of executive branch power.

This case presented an evenly divided Court -down one justice following Justice Scalia's sudden death in February- with the task of passing muster on President Obama's innovative immigration policy; a series of recent executive directives made through the Department of Homeland Security known as Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”).

The objective of DAPA is to provide favorable prosecutorial discretion for otherwise illegal immigrants that satisfy certain express criteria [such as verifiable employment, and having a young adult child that is a citizen of the United States], granting such individuals a limited period of time during which they are deemed to be "lawfully present" in the United States. The term "lawfully present" is at the center of the dispute.

Here are the legal mechanics of the issue, as stated by the SCOTUSBlog:

(1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.

We here at the Law Blogger define the issue as: whether the President or Congress should decide who, among the more than 10-million illegal immigrants in the US, gets to stay in-country, and for how long, despite no legal right to do so.

Texas and 25 other states challenged Obama's executive acts relative to DAPA and successfully had the executive acts enjoined by a federal judge in Texas; the injunction was affirmed by the Fifth Circuit Court of Appeals.

The Solicitor General of the United States asserted that President Obama had the constitutional authority to establish priorities for enforcement of the federal immigration laws. Further, the United States argued that Texas, not being harmed by DAPA, lacked standing under the constitution to even bring the suit to federal court.

Texas, on behalf of itself and many other states that joined the suit, asserted that it would suffer significant administrative costs [i.e. providing drivers licenses and other government services] devoted to a group of people who are in the country illegally.

Chief Justice John Roberts, active during the extended oral argument, was skeptical of the federal government's position, giving rise to speculation that he would not likely join the block of 4 liberal justices. Without five justices signing onto a "majority" opinion, the ruling will lack authority as precedent and the Fifth Circuit's injunction of the federal directives will remain in place for the balance of President Obama's term in office.

President Obama's legacy aside, there are countless lives and families in the balance, along with our national security. This case presents a complicated mess, to be sure.

We will be watching for the SCOTUS opinion on this case so stay tuned.

Post #536

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When an accused pleads guilty to a crime, the complexity of our modern legal system often leaves some of the significant consequences of the plea undetected.  After all, that's why you hired a lawyer in the first place, right?

These undetected consequences include quasi-criminal matters such as immigration as well as less obvious examples like disqualification from certain career paths or professional degrees; or affecting a client's parent-child relationship.

Recognizing this growing problem back in 2006, the State Bar of Michigan's Criminal Issues Initiative sought to educate criminal defense lawyers and the public by developing material useful to making a fully informed decision.

In addition, the SBM's website provides useful and current information for those either facing a criminal plea, or those attempting to recover from one.  The web site includes a checklist for clients to complete, the Michigan Re-entry Law Wiki link, and information about housing, immigration, employment, and child/parent issues.

Just recently, the SBM's Representative Assembly (the State Bar's elected governing body) passed a resolution to support legislation for the collection and notification of all collateral consequences involved with a criminal guilty plea.

Attorneys are challenged to keep-up with the multi-faceted and ever-expanding consequences of criminal convictions in our modern world.  When facing the prospect of a criminal guilty plea, even for a misdemeanor, be sure you hire a lawyer that knows about such consequences.

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Since 2009, I have served as a roster attorney for the Michigan Appellate Assigned Counsel System (MAACS). While a MAACS roster attorney hones his knowledge of the many facets of criminal law in the appeal context, most assignments involve assessment of yet another guilty plea appeal. No glory in that, to be sure.

Many of the guilty-plea appeals involve the Sixth Amendment issue of ineffective assistance of counsel. Often, youthful offenders claim they are forced by trial counsel to "take a deal" that they later regret. Rarely do these claims have merit. In almost every case, the Michigan Court of Appeals is not persuaded that the accused youth tendered anything but a knowing and voluntary guilty plea.

The mantra of the trial court taking the plea comes to mind: "Are you pleading guilty here today because you are guilty of this offense?"  The accused, sheepishly, states in the affirmative.

Last year, however, the SCOTUS decided Padilla v Kentucky. The case reversed the conviction of a legal immigrant on the basis of ineffective assistance of counsel where the accused was not properly and fully advised of the immigration consequences of his guilty plea.  Padilla was told not to worry about deportation because he had been in the country so long.

The Padilla case has drawn much attention among scholars of the criminal law; not for its immigration component, but for how it has expanded the scope of a lawyers duty to advise their clients of all the myriad consequences associated with their plea.

These consequences go far beyond the mere risk of incarceration and fines.  The potential "collateral" consequences could an individual's right to obtain a loan, obtain insurance benefits, bear arms, to vote, serve on a jury, serve as a foster parent, to participate in particular professions, terminate pension benefits, determine where a person can live, result in the loss of child custody, and in the case of sex crimes, doom the individual to a near lifetime of onerous registration requirements.  This is but a partial listing of the potential consequences.

Difficulties certainly arise for the lawyer facing her client's guilty plea.  The collateral consequences associated with the plea are often scattered across the Michigan Penal Code, and the federal statutes.

Defense counsel is often oblivious to this trap-laden universe.  The courts are wholly unconcerned with consequences to a plea that they do not impose.  For their part, prosecutors are not troubled with matters outside their direct control.

Add to this the fact that Michigan's court-appointed defense counsel advises the accused on nearly a pro-bono basis, and you have the makings for a constitutional catastrophe; or at least an imminent collision with the Padilla holding.

In the Internet-Age, as the number of people with criminal records have increased, so has the ability of employers, educators, lenders, and landlords to gain direct access to those records.  This makes obtaining legal advise as to the collateral consequences of a guilty plea all the more compelling.

Lawyers will have to be sharper than ever as they ambulate across the minefield of the criminal case.  Keep your eyes wide open has always been a trait of the best criminal defense attorneys.

Related story in Sunday NYT:  No sooner was this post uploaded when the Times published a story on the problem with monitoring people that once had the right to carry a weapon, but lost that right due to a felony conviction.

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