On Immigration Law, Justices Willfully Blind to Impact

            Jose Antonio Lopez, an immigrant from Mexico, had lived in the United States for 11 years before his 1997 conviction in South Dakota for aiding and abetting possession of cocaine. After he served 15 months in prison, federal immigration authorities moved to deport Lopez, citing the federal law that makes an alien removable if convicted of an “aggravated felony.”

            South Dakota defined Lopez’s offense as a felony, but federal drug law treats the same crime as a misdemeanor. Immigration judges and a federal appeals court found the state law controlling and allowed the government to deport Lopez. At the Supreme Court, however, eight of nine justices joined in ruling in 2006 that the federal definition of the offense was controlling and that Lopez should not have been deported.

            Lopez’s case illustrates what judges, lawyers, and experts all agree is the extraordinary complexity of immigration law. The difficulty of understanding and applying federal immigration law explains why the cooperative program Congress created in 1996 requires special training before state or local police are formally designated to help enforce federal immigration law.

            Arizona legislators slid right by that problem in 2010 when they passed a law that effectively makes every rookie police officer or deputy sheriff in the state a junior federal immigration agent. And a majority of Supreme Court justices seemed equally oblivious last week to the difficulties – and the strong likelihood that the Arizona law will inevitably put many U.S. citizens and legal aliens in holding cells for indeterminate periods with no legal justification.

            The Arizona law, commonly known by its bill number, SB 1070, instructs state and local law enforcement officers in Arizona to check the immigration status of anyone they arrest, detain, or stop if they have a “reasonable suspicion” the individual is unlawfully present in the United States. Another section authorizes state and local police to arrest someone if they have probable cause to believe the individual is an alien who “has committed a public offense that makes the individual removable from the United States.” Two other sections of the law establish new state crimes for aliens to work or seek to work in the state or to fail to carry federal registration papers.

            On paper, the law may seem straightforward. And Chief Justice John G. Roberts Jr. was among those who opined that it is. As he put it to Solicitor General Donald Verrilli, Arizona simply identifies people “who are here in violation of federal law” and then leaves it to the federal government to determine whether to prosecute. “That’s why I don’t see the problem,” Roberts said.

            Lopez’s case shows that the federal government itself makes mistakes about whether an alien with a criminal conviction is deportable. A primer on immigration law prepared by the Ninth U.S. Circuit Court of Appeals takes more than 40 pages to cover the applicable case law. Try as they might, Arizona law enforcement officers are unlikely to master the intricacies and all but certain to detain many individuals who in fact are not subject to deportation.

            The immigration checks that police in Arizona are now supposed to perform at every arrest, every traffic stop, and every on-the-street stop-and-frisk are also certain to include many mistakes. Representing Arizona, attorney Paul Clement minimized the problem by suggesting that it only takes 10 minutes for police to check immigration status with the federal database. In fact, Verrilli said, the check takes 10 minutes, but only an hour on hold. All the while, the suspected immigration law violator is detained: maybe on the street, maybe in a holding cell. And, since there is no U.S. citizen data base to check, many citizens may be mistaken for immigrants unless carry their passports when visiting the Grand Canyon.

            Verrilli also pointed to the difficulty of making it a state crime to fail to carry alien registration papers. Some aliens lawfully present in the United States are not provided registration papers: for example, individuals seeking asylum or other protected status. Clement again minimized the problem by noting that the law punishes only “willful” failure to carry registration papers. But, again, the cop on the beat with no time to master the intricacies is likely to make mistakes.

            The biggest practical objection to the law, however, was taken off the table by Roberts at the start of the government’s argument. “No part of your argument has to do with racial or ethnic profiling, does it?” Roberts asked. “I saw none of that in your brief.” Verrrilli agreed.

            As a technical matter, Roberts is correct. In filing a so-called facial challenge to the law, the government argues in effect that it is structurally invalid even if enforced with scrupulous even-handedness. But, to borrow from Dickens, if the law makes that assumption, the law is an ass and an idiot — and needs to have its eyes opened by experience (Mr. Bumble, in Oliver Twist).

            No one with any sense expects Arizona police to zero in on visitors from Northern Europe who overstay their visas. Once this law goes into effect — and the indications from the justices are that the major parts will — Latinos will feel its impact, many of them U.S. citizens or lawful residents. And when that happens, the United States will be less than what the national anthem proclaims: the land of the free.

Obama's Slow-Walk on LGBT Workplace Rights

      President Obama suffered some political embarrassment when an open mike caught him assuring Russian President Dmitry Medvedev that he would have “more flexibility” on the issue of European missile defense after the November election in the United States. White House aides were quick to explain that Obama was merely explaining the political facts of life that Congress could hardly be expected to tackle a sensitive foreign policy issue in the midst of a presidential campaign.

      Obama has also apparently decided that he will also have to wait until after the election for the flexibility to take presidential action on the issue of LGBT equality in the workplace. Meeting with LGBT advocates this month, senior White House aides, including outreach director Valerie Jarrett, passed the word that Obama would not be issuing an executive order this year to prohibit federal contractors from job discrimination on the basis of sexual orientation or gender identity.

      When news of the president’s non-initiative got around, White House press secretary Jay Carney insisted that the president actually was helping advance LGBT rights in the workplace by pursuing legislation rather than issuing an executive order. “We believe that this is the right approach to achieve success here in a broad and comprehensive legislative action,” Carney said at the daily press briefing on April 17. Obama, he added, is “aggressively pursuing” passage of the Employment Non-Discrimination Act (ENDA) by Congress, which would add sexual orientation and gender identity to federal job discrimination law.

    Reporters for Washington’s two gay newspapers — Chris Geidner of Metro Weekly and Chris Johnson of the Washington Blade — pressed Carney hard on the issue. As Johnson noted, Congress is “highly unlikely” to approve ENDA this year. Gay rights-averse Republicans control the House, and the election shortens the legislative calendar anyway. Geidner followed by noting that the executive order prohibiting federal contractors from discriminating on the basis of race, color, religion, sex, or national origin – executive order 11246 – has been in effect since 1965. President Lyndon B. Johnson issued the order in September 1965, one year after the Civil Rights Act of 1964 established the same prohibition on employers generally. Geidner pointedly asked whether Obama considers the executive order “redundant” to Title VII, the Civil Rights Act’s job discrimination provisions. Carney had no answer.

     In fact, executive order 11246 is not redundant. The order gives the Department of Labor’s Office of Contract Compliance authority to request information about employment and hiring practices from federal contractors; Title VII is enforced by the Equal Employment Opportunity Commission, generally only after complaints from individuals. In addition, the threatened loss of federal contracts [see section 209(a)(5)] is a stronger incentive for compliance than the risk of EEOC sanction or adverse court ruling after protracted litigation.

The president’s authority to establish nondiscrimination requirements for federal contractors appears well established. President Franklin D. Roosevelt forbade racial discrimination by defense contractors in 1941. Dwight Eisenhower used an executive order in 1953 to create a government contracts committee to promote compliance with equal employment goals. LBJ’s action put teeth into the policy.

      In contrast to the tenuous climate for racial equality in the 1960s, the support today for protecting LGBT equality in the workplace is relatively broad. Twenty states already have laws prohibiting discrimination by public or private employers on the basis of sexual orientation; 15 of those states include protection for gender identity as well. Most big companies now include sexual orientation in their stated nondiscrimination policies. Public opinion polls generally show support for measures to prohibit discrimination against gays and lesbians. In fact, as shown in a poll by the Human Rights Campaign released late last month, an overwhelming majority of Americans believe discrimination on the basis of sexual orientation is already illegal.

      With so much support for LGBT equality in the workplace, the question naturally arises whether federal action —  in the form of legislation or executive order —  is needed at all. Homosexuals are no longer purged en masse from the federal workforce, as they were in the late 1940s and ’50s, or from state employment rolls. But a comprehensive report by the Williams Institute, UCLA’s think tank on sexual orientation and gender identity law and policy, shows that gay and lesbian employees continue to experience discrimination or harassment in their jobs.

       In a survey in 2008, for example, one out of five LGBT public sector employees reported workplace discrimination; among transgender employees, the incidence was 70 percent. In the same year, slightly more than one-third of LGBT employees said they were closeted at work. Many undoubtedly worry that they could suffer discrimination if they came out — and, in most of the states, they could, without legal recourse.

      Obama deserves credit from gay rights groups for advancing their cause, at some political risk — most dramatically, in winning legislative repeal of the “don’t ask, don’t tell” policy in the military. The administration has taken other incremental steps without congressional action. Immigration and Customs Enforcement, for example, recently moved to allow same-sex couples to file immigration and customs documents together when returning to the United States from abroad, just like other families.

      Yet gay rights advocates understandably feel slighted by the administration’s inaction on an executive order. Some expect the order will come after the election, and perhaps it will. Until then, however, Obama’s support for LGBT rights in the workplace, like his “evolving” view on marriage equality, will be seen by many as a work in unnecessarily slow progress.

In Trayvon's Memory, Repeal 'Stand Your Ground' Laws

      Megan Kanka, seven years old, was raped and murdered on July 29, 1994, by a next-door neighbor, who unbeknownst to anyone in her suburban New Jersey neighborhood had two previous convictions for sexually assaulting young girls. Just one month later, the New Jersey legislature passed a law requiring convicted sex offenders to register with a state database and making that information available to the public.
      Washington State passed the first such law four years earlier, but the measures are now universally known as “Megan’s Laws” and have been enacted in various forms by Congress and by legislatures in every state. One can question the wisdom or the effectiveness of the laws, but they are firmly established as a lasting legacy to an innocent victim of a senseless crime — an attempt to show that Megan Kanka did not die in vain.
      Trayvon Martin, an innocent victim of what is now officially alleged to be a senseless crime, deserves no less. Even as state attorney Angela Corey and her team of prosecutors prepare to try George Zimmerman on a charge of second-degree murder, legislators in the 20 or more states that passed so-called “Stand Your Ground Laws” in the past seven years should begin the task of rewriting or repealing those measures — so that Trayvon Martin, in some sense, not have died in vain.
      Florida has the dubious honor of having passed the first of these laws expanding the right of self-defense to include the use of deadly force in public settings under specified circumstances and eliminating any duty to retreat if possible to avoid doing so. The Florida legislature approved the measure in April 2005 at the strong urging of the National Rifle Association (NRA) and in the face of opposition from law enforcement in the state. Miami Police Chief John Timoney called the bill unnecessary and dangerous and presciently warned — according to the New York Times’s account— that “many people, including children, could become innocent victims” (emphasis added).
      With the NRA driving them, similar laws were passed in more than a dozen other states by the end of the 2006 legislative season even as Florida prosecutors were finding the state’s version to be an impediment to convictions in killings of dubious self-defense. Today, the Association of Prosecuting Attorneys counts 30 states in all that have liberalized the rules of self-defense since 2005. Some, but not all, of those laws have been enacted after full public debate. As one example, Wisconsin’s measure was enacted with little public attention after a stealth letter-writing campaign by the state’s NRA affiliate, according to a recent account in the New York Times.
      The prosecutors’ group points to data from the FBI that suggest the laws may have contributed to a sharp increase in the number of homicides by private citizens deemed to be “justified,” not only in Florida but also nationwide. The FBI counted 192 “justifiable” private citizen homicides in 2005 and 278 in 2010 — a 45 percent increase in just five years. In Florida itself, the number has tripled, according to the state’s Department of Law Enforcement, from an average of 12 per year before 2005 to 36 per year since.
      Florida’s law may or may not prove determinative in the case against Zimmerman, the hyperactive neighborhood watch coordinator now in custody after being charged with second-degree murder on April 11, nearly seven weeks after the Feb. 26 killing. Zimmerman shot and killed Martin after he pursued the African American teenager on the unfounded suspicion that Martin was “up to no good” in the gated community that Zimmerman had undertaken to patrol. But the law at least played a part in the decision by Sanford authorities not to arrest Zimmerman that night even though the chief investigator said Zimmerman’s claim of self-defense was not to be believed.
      From all that appears, the case is now in good hands in Florida’s justice system. Corey was brought in from Jacksonville as special prosecutor after state’s attorney Norm Wolfinger recused himself. Corey made an impressive appearance in the nationally televised announcement of the charges against Zimmerman. The affidavit backing up the charge, released the next day, provides a succinct statement of the evidence supporting the accusation. The defendant himself is now being represented, pro bono, by a well regarded Florida attorney, Mark O’Mara. Trayvon’s parents and many of those who have clamored for an arrest are now satisfied that the case is in the courts.
      The groundswell of indignation at the killing could now be turned to the broader purpose of restoring the law of self-defense to the sensible balance that had obtained for most of U.S. history until the NRA-led drive of the past decade. Anglo-American law had long recognized the so-called “Castle Doctrine” that permits the use of force, even deadly force, in self-defense within one’s home. Expanding that doctrine to public settings has made the streets not safer, but less safe, according to law enforcement officials.
      The NRA has been lying low since the Martin killing, but former NRA president Marion Hammer, a Floridian who played a key role in enactment of the “Stand Your Ground Law,” insists there is no need to change it. If Trayvon Martin were alive today, he might have a different opinion.

Justice Department Pushing Reforms on Local Police

      The families of James Brisette and Ronald Martin now have a measure of justice, more than six years after Brisette and Martin were killed by New Orleans police officers as they sought refuge from the devastation wrought by hurricane Katrina. The four officers involved in the fatal shootings on Danziger Bridge on the evening of Sept. 4, 2005, were all given long prison sentences last week after having been convicted in federal court of civil rights and obstruction of justice charges.
      The people of New Orleans, however, cannot count on justice from the city’s flawed police department without new procedures and a new culture to control the use of excessive force, eliminate racial profiling and establish effective accountability and discipline for misconduct. Those changes may be coming, thanks to the aggressive stance the Justice Department has taken toward police misconduct under its civil rights chief, Thomas Perez.
      Under Perez, the civil rights division’s “special litigation section” has been using, to the max, the power granted under a 1994 law to police law enforcement agencies across the country. The law (18 U.S.C. § 14141) allows the Justice Department to take legal action against a police department if it finds a “pattern or practice” of conduct that deprives persons of rights or liberties protected by the Constitution or federal law.
      The Clinton administration used the law to force significant reforms in the Pittsburgh and Los Angeles police departments and to launch investigations that later resulted in similar changes in other cities, most notably, Detroit. Apart from finishing investigations already under way, however, the Bush administration dialed back on police department oversight. Staffing in the special litigation section was cut, and reports on police departments adopted a deferential tone of specifying that any changes in policies discussed were “recommendations,” not “mandates.”
      Perez, who held civil rights-related posts in the Justice and Education departments in the Clinton administration, has reinvigorated the department’s police department oversight role in his two-and-a-half years as assistant attorney general for civil rights. The “pattern or practice” reports issued in the past year, starting with New Orleans in March 2011, have pulled no punches in criticizing use of force policies and racial and ethnic profiling. And Perez has raised the visibility of the issue by personally attending news conferences to release reports — first in New Orleans and then in December in Phoenix and Seattle.
      Perez was also on hand last week [April 4] for the sentencing of the five former New Orleans police officers convicted in August in the Danziger Bridge shootings. The feds won the convictions after state prosecutors had come up short. And they won it only by negotiating guilty pleas with five other officers, who agreed to break what Perez called the department’s “code of silence” and testify against their former colleagues.
      The shootings are a dramatic example of out-of-control police officers using deadly force against unarmed, unresisting civilians. Admittedly, chaos reigned in post-Katrina New Orleans. And the four officers convicted in the shootings — Sgts. Kenneth Bowen and Robert Gisevius and Officers Anthony Villavaso and Robert Faulcon — were naturally agitated as they responded to a report of shots being fired at police.
      Police have to keep their cool, however, even under trying circumstances. Instead, as soon as they got to the Danziger Bridge, the four officers opened wild gunfire that lasted more than a minute. Brisette, 17, and four others were hit as they tried to hide behind a concrete barrier. Brisette was shot several times; the fatal wounds were inflicted by shotgun pellets to the back of his head.
      The officers then began to chase Lance Madison and his brother Ronald, age 40, as they ran from the gunfire. Faulcon shot Ronald in the back; Bowen later stomped on him. As often happens in police shootings, the civilian, Lance Madison, was arrested and charged, the charges later dropped.
      All four former officers now face long prison sentences: 65 years for Faulcon, 40 years for Bowen and Gisevius, 38 years for Villavaso. A fifth defendant, Arthur “Archie” Kaufman, was given a six-year term for helping to orchestrate the attempted cover-up of the shootings. U.S. District Court Judge Kurt Engelhardt said he might have imposed longer sentences but for the favorable plea bargains earlier in the case.
      The convictions, however important, are not a complete answer to the use-of-force problem in New Orleans, as longtime police accountability expert Samuel Walker remarked for my current CQ Researcher report, “Police Misconduct” (April 6). The underlying cause of a bad use-of-force incident, Walker says, “is some failure by the department: lack or proper training or lack of proper supervision.”
      The Justice Department report addresses the broader problem by listing 20 specific recommendations (Appendix, pp. 1-3), including better training on de-escalation techniques and mandatory reporting and investigation of all use-of-force incidents. DOJ lawyers are negotiating with New Orleans officials on a consent decree embodying these recommendations to be enforced by a federal court.
      To his credit, New Orleans Police Superintendent Ronal Serpas has embraced the need for reform. Seattle officials have developed their own reform plan to answer DOJ’s criticisms. In Arizona, however, Maricopa County’s outspoken sheriff, Joe Arpaio, is daring the Justice Department to take him to court to answer charges of discrimination against Latino suspects and inmates. From all that appears, Justice appears unlikely to shrink from the challenge.

Health-Care Economics Too Hard for Some on High Court

      The law and economics movement has correctly been called the most influential intellectual movement in American law of the late twentieth century. Over the past several decades, a growing number of law professors and think-tank fellows, mostly on the political right, have preached to judges and lawyers the importance of carefully analyzing the real economic effects of laws and regulations.
      The Supreme Court, under three successive chief justices, has embraced the movement’s teachings to some extent, in particular in rulings that have narrowed federal antitrust law. But the economics of the health-care industry proved too much for some of the court’s conservatives in last week’s showdown on the constitutionality of the Patient Protection and Affordable Care Act. Time and again during the March 27 arguments on the law’s pivotal provision, the individual insurance mandate, conservative justices either failed or refused to grasp the realities of the U.S. system of financing health care.
      As Solicitor General Donald Verrilli explained at the start of an admittedly uneven hour at the lectern, Americans pay for health care through insurance. The insurance is provided by tax-subsidized employer health plans or by the government: Medicaid for the poor, Medicare for those over 65. No one self-insures for medical care throughout his or her lifetime.
      Some people, however, have no insurance. Some are unemployed but ineligible for Medicaid and cannot afford insurance, especially if ineligible for group-based rates. And some number who can afford insurance game the system by going bare while they expect to be healthy and joining the insurance system only later.
      Some of the people in those groups use health services anyway and, when they cannot pay, shift billions of dollars in the cost of unpaid services on to the insurance-financed health care system for others to bear. This economic reality explains why a conservative economist, Mark Pauly, originated the idea of requiring everyone to have insurance — and why some conservatives and Republican politicians endorsed the idea in the 1990s as a modified free-market alternative to some form of universal, government-run health care.
      At the Supreme Court, all four of the conservative justices who participated in the questioning — Clarence Thomas was silent, as is his custom — either ignored or distorted these economic realities. Justice Anthony M. Kennedy asked whether the government could “create commerce” in order to regulate it, missing the point that everyone is always either an actual or a potential participant in the health care market.
      Justice Samuel A. Alito Jr. could see the individual mandate only as a present-tense subsidy from the healthy to the sick. It fell to Justice Ruth Bader Ginsburg to answer: “If you're going to have insurance,” she said, “that's how insurance works.” Later, Justice Sonia Sotomayor had an additional answer. “The subsidizers eventually become the subsidized,” she noted.
      Verrilli was also met with a succession of increasingly improbable hypotheticals. Could the government require everyone to have cell phones to facilitate emergency services, Chief Justice John G. Roberts Jr. asked. What about requiring everyone to have burial insurance, Alito asked. And, of course, Antonin Scalia had to ask the broccoli question: Since everyone eats food, could the government require everyone to buy broccoli? To these gotcha-type questions, Verrilli answered that emergency services are not a market, uncompensated burial expenses are minimal, and broccoli-phobic Americans do not shift billions in food costs on to the broccoli-buying public.
      Scalia was equally obtuse when he challenged Verrilli’s argument that the uninsured had to be brought into the health care market in order to keep insurance premiums down. “You could say that about buying a car,” Scalia said. “If people don't buy cars, the price that those who do buy cars pay will have to be higher.” To the contrary, as anyone who has taken first-year economics knows, the price curve for ordinary products goes down as demand goes down.
      For the opponents of the mandate, former solicitor general Paul Clement insisted that the government could accomplish its objectives by requiring the uninsured to buy insurance at what Clement called “the point of sale” — that is, at the hospital or doctor’s office when medical care is actually needed. Justice Sonia Sotomayor aptly labeled the idea impossible. Aside from the practicalities of filling out insurance forms while in an acute medical condition, the actuarially sound premium for someone with a 100 percent probability of using medical services would be close to the full cost — or, put differently, unaffordable.
      Encouragingly for the administration, both Roberts and Kennedy posed some questions that evidenced a better appreciation of the realities of health-care economics. Roberts pressed Clement for an answer to the government’s point that, in contrast to the market for cars, “everybody” is in the health care market.
      More pointedly, Kennedy asked a final question of the challengers’ other lawyer, Michael Carvin, that appeared to recognize the unique nature of the health-care market. Kennedy wondered aloud whether “the young person who is uninsured is uniquely, proximately, very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.”
      The court’s decision will not be known until late June, but for now it can be said that economics does not appear to be the conservative bloc’s strongest suit.