In Pandemic, More Liberty Means More Deaths

      Patrick Henry rallied his fellow Virginians to the impending revolution in 1775 with a stirring speech, well known to school children and others still today, that posited for himself the dramatic choice, "Give me liberty or give me death." Henry showed that he was deadly serious, according to the accounts, by bursting from imaginary chains and grasping an ivory letter opener as though in self-sacrifice.
      With the coronavirus pandemic forcing Americans to shutter businesses and shelter in place, some politicians and commentators on the political right are clamoring today for liberty to be restored, but they are less than deadly serious. Unlike Patrick Henry, these faux patriots call for sacrificing others, rather than themselves, not so much for liberty's sake, but for the economy's and for President Trump's re-election.
      The equation today, in the time of the coronavirus, is simple: more liberty means more deaths. The social distancing guidelines that Trump claims as his in a mass mailer sent to postal households last week come with the unanimous recommendation of actual public health experts; they will still be needed, the experts say, beyond Trump's 15-day pull date.
      The calls to sunset the social distancing guidelines with the pandemic still advancing come with a strong hint of libertarian resentment from, among others, the lieutenant governor of the "don't mess with me" state of Texas and from confirmed opponents of government regulation such as the Hoover Institution's Richard A. Epstein.
      Texas's lieutenant governor, Republican Dan Patrick, posed the choice starkly in an appearance with Fox News' Tucker Carlson [March 23] the same day that Trump had warned against allowing "the cure to be worse than the disease." As a septuagenarian grandfather himself, Patrick said the economically unproductive elderly, especially vulnerable to Covid19, could be sacrificed to get the United States' recession-bound economy back on track. "If that's the choice," Patrick told Carlson, "I'm all in."
      Even before Patrick's chilling suggestion, the idea of consigning the elderly to slow deaths from covid19 had advanced far enough to draw attention from, among others, Donald McNeil, science reporter for The New York Times. Appearing on MSNBC's Rachel Maddow Show hours after the Carlson program, McNeil let out a cri de coeur: “This notion that it’s only going to kill grandma — as if that were OK — has got to stop,” McNeil said.
      Epstein, a self-identified libertarian hawk, argued for lifting the social distancing guidelines even earlier in an article posted on the Hoover Institution's web site on March 16 and quickly circulated in the White House and in pro-Trump circles. With no training in epidemiology, Epstein opined that the warnings from statistically trained public health experts "radically overestimate the ultimate death toll" from Covid19. As of mid-March, Epstein contended, the number of deaths in the United States — then below 500 and now over 1,700 — "fall[ ] short of justifying the draconian measures that are now being implemented." With appropriate modesty, Epstein conceded at the end that "perhaps" his analysis was wrong.
      Economists, once famously described as knowing "the price of everything but the value of nothing," were adding to the debate over the spreading quarantines by hesitantly asking whether the benefits in lives saved were worth the costs to the economy. Those costs emerged starkly when the U.S. Labor Department Labor Statistics reported at the end of the week a record number of new claims for unemployment benefits: just below 3.3 million. For Trump, the data amounted to a bucket of cold water thrown on his boasts about the lowest unemployment rate ever and the best economy ever.
      Trump, with no evidence ever of empathy for the hardships of others, was most certainly concerned about the risk of unemployment: especially his own. With an approval rating below water throughout his presidency, Trump had been counting on a good economy as his hole card in the November election. An economy stuck in reverse would cast him perhaps as the underdog in what was going to be a difficult re-election campaign in any event.
      At week's end, Trump appeared intent on lifting the social-distancing guidelines by Easter Sunday [April 12] in order to help get the economy going again. His impatience flew in the face of evidence-based predictions from public health experts that relaxing emergency measures prematurely would allow the virus to spread beyond control and lead to a new spike in diagnosed cases, hospitalizations, and deaths. That is what happened, the experts noted, when some U.S. cities eased restrictions they had adopted to combat the Spanish influenza epidemic in 1918.
      Trump repeatedly insisted, contrary to the evidence, that the pandemic arrived completely unexpected. In fact, he had received warnings about the potential spread of the virus even in those early weeks when he was minimizing the risks. He also called the pandemic unprecedented, seemingly unaware of the Spanish flu epidemic a century earlier. Studies of the epidemic, as cited in a recent article in National Geographic, show that death rates were 50 percent lower in cities that adopted preventive measures early and that relaxing those measures could cause an otherwise stabilized city — for example, St. Louis — to relapse.
      Social distancing "saved thousands of American lives during the last great American pandemic," according to the article's headline. Trump's self-interested hopes for a favorable economy by November matter not a whit in comparison to the lives to be saved by staying the course.

Supreme Court Must Adapt to Hear Scheduled Cases

      The Supreme Court's 2019 term is in serious jeopardy unless the justices overcome their aversion to technological advances that could allow the Court to hold most oral arguments even as the coronavirus pandemic forces postponement or drastic alteration of the usual public sessions.
      The Court bowed to public health necessities last week [March 16] by postponing the March oral argument calendar with its 11 cases scheduled from March 23 through April 1. The postponed cases include President Trump's politically charged effort to block subpoenas for his financial records by a House committee and the New York City district attorney's office.
      The nine other cases postponed include, among lesser disputes,  Google's effort to block Oracle's high-stakes software copyright infringement lawsuit against the Silicon Valley giant. With the coronavirus pandemic still spreading, the April calendar with nine cases scheduled for courtroom arguments beginning on April 20 could be postponed as well.
      The Court's press release announcing the postponement included the stay-tuned suggestion that it would "examine options for rescheduling those cases in due course in light of the developing circumstances." At this writing [March 21], the Court has not acknowledged suggestions from concerned Court watchers that oral arguments can be held with attorneys participating remotely or without a courtroom audience and livestreamed or posted on the Court's website on the same day instead of at the end of the week.
      Nationwide, schools, colleges, and universities adapted to the social distancing guidelines announced by public health officials at all levels of government by shifting to online instruction.  Instructors from elementary school teachers to law school professors adapted as best they could to teaching to computer screens instead of classrooms.
      The Court has made some limited concessions to the new circumstances, but not enough to complete a full term's worth of decisions. The justices conferenced on Friday [March 20] as scheduled, with "some" of them participating by phone. The Court may issue decisions this week [week of March 23] but without the justices taking the bench. Opinions will be posted online, but the slip opinions ordinarily distributed to press and public will not be provided.
      Court watchers dissatisfied with the Court's response so far include Gabe Roth, executive director of the reformist advocacy group Fix the Court. In a same-day press release, Roth called the postponement "a positive step" but took the opportunity to renew the group's call for greater public access to the Court's courtroom sessions.
       "The Court would do well," Roth said, "to extend modern conveniences to the general public the next time it holds arguments so proceedings would be available live to those beyond the courtroom's walls. Providing remote access would protect the health of the justices and the public during the current pandemic and beyond."
       Roth noted in the press release that the Court has the technological capacity to livestream its proceedings, as the Court did for the memorial service for the late Justice Antonin Scalia held in the Great Hall on Nov. 4, 2016. In a phone interview last week, Roth emphasized that the Court could use any of several remote conferencing technologies to hold arguments in April as scheduled or to reschedule the postponed March cases.
      The nine cases on the April calendar include several of major import. Two cases, one from Washington and the other from Colorado, test whether states can penalize so-called "faithless electors" for casting their presidential ballots contrary to the state's popular vote The arguments are scheduled to end on April 29 with yet another case claiming a religious freedom exemption from the Affordable Care Act's requirement for employers to provide contraception coverage as part of employee health plans. "I do hope that they will hold arguments next month," Roth said. "It's important for the public to see or hear that the levers of government are still working despite a crisis."
      To date, the Court has heard oral arguments in 48 cases, far fewer than a term's usual complement of 70 cases. If opinion writing is not delayed, those decisions will be issued a few at a time over the next three months until the customary rush of decisions in the final week of June. So far, the Court has been somewhat slow off the mark, with only 14 decisions issued through early March and none of them especially newsworthy for the general public.
      The high-profile cases already "submitted" include the effort in two cases argued in October to extend federal job discrimination protections to LGBT individuals. Also pending since the fall is the Trump administration's effort to rescind the Obama administration's immigration policy to protect the so-called dreamers: "deferred action for children of Americans," known as DACA. More recently, the Court heard arguments in an important abortion-related case that abortion rights advocates fear could give states more leeway to enact regulations aimed at limiting access to abortion care.
      Whatever course the Court takes in those major cases, the justices owe the public a full year's work. The Court also owes the litigants in the March and April calendars some measure of justice without further delay. Other federal appellate courts have conducted oral arguments remotely over the past two weeks; the Supreme Court should follow suit and, in the process, recognize the need to give the public greater access to their proceedings.

Court Obliges Administration on Asylum Policy

      The Supreme Court pulled the Trump administration's chestnuts from the fire once again last week [March 10] by lifting an injunction approved by two lower courts against another of the administration's anti-immigrant initiatives of dubious legality. With only Justice Sonia Sotomayor in recorded dissent, the Court granted the administration's plea to stay the injunction that blocked the so-called "remain in Mexico" policy for asylum applicants at the California and Arizona borders.
      The administration engages in Orwellian doublespeak by calling its challenged policy "Migrant Protection Protocols." In truth, the 60,000 non-Mexican migrants returned to Mexico under the policy over the past 15 months have faced the grave threat of victimization from criminals, police, or immigration officials in communities unprepared to house, shelter, or care for them.
      Consider: These are dark-skinned Central American refugees who have fled their home countries because of fears of persecution by repressive governments or retaliation from powerful Central American gangs. Some of the would-be refugees presented testimony that they feared their home country governments or gangs would identify them from news coverage of the controversy.
      In upholding the district court judge's injunction against the policy [Feb. 28], the two-judge majority on the Ninth Circuit Court of Appeals recognized "the hardship and danger to individuals returned to Mexico under the MPP." Writing for the two Democratic appointees on the panel, Judge William Fletcher found that the individual plaintiffs had "presented evidence that they [and others] face targeted discrimination, physical violence, sexual assault, overwhelmed and corrupt law enforcement, lack of food and shelter, and practical obstacles to participation in court proceedings in the United States."
      Fletcher was equally blunt in dismissing the administration's legal defense of the policy. "[T]here is no serious possibility that the MPP is consistent with [federal law]," Fletcher wrote in the 52-page opinion joined by his fellow Clinton appointee, Richard Paez. The Republican appointee on the panel, Judge Ferdinand Fernandez, dissented on the narrow ground that a previous appeals court panel had effectively upheld the policy by granting the administration's request to stay Judge Richard Seeborg's injunction.
      Apart from humanitarian concerns, the policy fails on two legal grounds, as Fletcher explained: federal law and international treaties, designed to protect asylum applicants rather than turn them away at the border. Specifically, the asylum procedures enacted by Congress include a provision, codified at 8 U.S.C. § 1225(b)(2), that exempts asylum applicants from the expedited removal procedures prescribed for "other aliens" found to be inadmissible.
      Instead, the law requires that an immigrant who indicates an intention to apply for asylum or a fear of persecution "shall" be referred by the immigration officer to an “asylum officer” for an interview and detained in the United States for further consideration. The applicable law does not "state[ ] or even suggest[ ]" that the asylum applicant is subject to the return procedure specified for other migrants, Fletcher adds. In addition, international treaties prohibit under a so-called "non-refoulment" principle from returning an asylum applicant to a country where the refugee would face the risk of persecution.
      The decision to stay the injunction followed by seven weeks the Court's 5-4 decision to allow the Trump administration to implement another initiative to deter immigration after two federal courts prevented it from being put into effect. The Court's decision in Department of Homeland Security v. New York [Jan. 27] allowing the administration to institute a new, stricter "public charge" rule to bar would-be immigrants came on a 5-4 vote, with the four liberal justices dissenting. Two of the conservatives in the majority, Neil Gorsuch and Clarence Thomas, wrote a concurring opinion to criticize in particular the district court judge's decision to issue a nationwide injunction against the policy.
      Significantly, a stay of a lower court decision pending appeals is an "extraordinary" remedy, not routine. The Trump administration has made a habit of asking the Supreme Court to stay adverse decisions from lower courts pending appeals and the justices have obliged in many instances, often with the liberal bloc in dissent. Three weeks after the action in the New York case, Sotomayor complained in a similar case from Illinois of what she called the administration's "now familiar pattern" of asking the Court for stays. The Court, she added, has been "all too quick to grant the Government’s reflexiv[e] requests."
      In the asylum case, the Ninth Circuit steered clear of the "nationwide injunctions" debate by narrowing Judge Seeborg's injunction to the two Ninth Circuit states that border Mexico: California and Arizona. In the opposing briefs, the American Civil Liberties Union, representing the migrants and the immigrant rights groups, argued that the policy effectively prevents migrants from pursuing their asylum claims. Border Patrol officers fail, the ACLU lawyers charged, to inform the migrants of their right to express fear of persecution if returned to Mexico. The government insisted in response that the policy included "adequate safeguards to ensure that aliens who legitimately fear persecution on account of a protected ground or torture in Mexico are not returned to Mexico."
      The Court gave no explanation for issuing the stay in the asylum case, nor did Sotomayor explain her dissent. The other liberal justices' decision to concur or at least to remain silent seems a puzzle. But the action illustrates, yet again, that when the Trump administration says jump, the Roberts Court is quite willing to answer, "How high?"

U.S.-Mexico Border More Dangerous After Court Ruling

      The United States' southern border with Mexico can be a dangerous place. It was more than dangerous but fatal for a Mexican teenager, Sergio Adrián Hernández Guüreca, on June 7, 2010, when he was playing with friends in the concrete culvert that divides the border cities of El Paso, Texas, and Ciudad Juarez, Mexico.

      Hernández died at the hands of a U.S. Border Patrol agent, Jesus Mesa Jr., who fired a bullet that struck Hernández in the face on the Mexican side of the culvert's unmarked border. With that happenstance, Hernández's parents lost the ability to hold Mesa responsible in U.S. courts for their son's death in what the Supreme Court was to describe in its decision

10 years later as "this tragic case." 

      The episode was not only tragic but also avoidable, with greater care on Mesa's part. With a 5-4 decision last month, however, the Supreme Court eliminated the only legal tool available in practical terms to encourage trigger-happy Border Patrol agents such as Mesa to exercise more care before resorting to lethal force against unarmed and innocent Mexicans on their side of the border.  

      Hernández 's death sparked outrage in Mexico and even an unsuccessful effort to prosecute Mesa for murder: thwarted by the United States' refusal to extradite the agent. On the U.S. side of the border, the episode prompted a cursory investigation that cleared Mesa of any wrongdoing and a self-defense coverup contradicted by later discovered video from the scene. 

      The Mexican youths, by their accounts, had been playing a game of climbing up the bank of the former Rio Grande riverbed to touch U.S. soil and then running back down into Mexico. Mesa claimed that the boys were trying to cross into Texas and that he fired two shots at Hernández only after the youths pelted him with rocks and swarmed around him. The onlooker's video showed no rock-throwing and no youths surrounding Mesa. 

     Hernández's death was not an "isolated incident," as Justice Ruth Bader Ginsburg wrote in dissenting from the eventual decision. In a more egregious case at the Arizona border in 2012, a Border Patrol agent fired more than a dozen bullets across the border, killing a 16-year-old boy while he was walking on the street in Nogales, Mexico. 

      The Mexican government counted Hernández' death at the border as the seventeenth in the first six months of 2010: up from the five deaths in 2008 and twelve fatal shootings in 2009. Former Border Patrol officials filed a brief

in the Hernández case stating that to their knowledge the United States had never prosecuted a Border Patrol agent for a fatal shooting nor extradited an agent for prosecution in Mexico.

      The government's response to the broader array of complaints of physical and verbal abuse by Border Patrol agents has been similarly anemic. A study

by the American Immigration Council found that among more than 800 complaints filed from 2009 to 2012, no action was taken in 97 percent of those that resulted in formal decisions.

      With formal channels of accountability seemingly futile, Hernández's parents, represented by among others the University of Texas law professor Stephen Vladeck, turned to U.S. courts. They filed a suit in federal district court in El Paso, seeking to take advantage of a Supreme Court precedent, Bivens v. Six Unknown Federal Narcotics Agents (1971), which created a cause of action against federal officials for violations of constitutional rights. 

      The Court twice extended Bivens beyond its Fourth Amendment context to permit a Fifth Amendment sex discrimination complaint against a member of Congress, Davis v. Passman (1979) and an Eighth Amendment cruel and unusual punishment claim for a prisoner's inadequate medical treatment, Carlson v. Green (1980). More recently, however, the Rehnquist and Roberts Courts have refused to extend Bivens further and, in the most recent decision Ziglar v. Abbasi (2017), described Bivens as an example of "disfavored judicial activitiy."

      Against those odds, Hernández's lawyers faced such obstacles as persuading the courts to allow a suit by an alien and to allow a suit for an injury inflicted on foreign soil. They nevertheless won a victory of sorts in their first go-round at the Court in 2017 with a decision that, instead of dismissing the suit, sent the case back to the Fifth U.S. Circuit Court of Appeals for further consideration of those issues. 

      Back at the Supreme Court following the Fifth Circuit's second decision to reject Hernández's suit, the conservative justices signaled during oral arguments on Nov. 12 their continued distaste for Bivens. Assigned to write the majority opinion, Justice Samuel Alito Jr. contrived to find some specific reasons for again refusing to extend Bivens to "a new context." 

      Cross-border shootings have foreign policy implications within the executive branch's domain, Alito reasoned in his opinion in Hernández v. Mesa [Feb. 25, 2020]. He also warned that extending Bivens carried "the risk of undermining border security." With those distinctions, Alito and the four other conservatives had no need to overrule Bivens, but in a concurring opinion Justices Clarence Thomas and Neil Gorsuch said they would have been willing scrap Bivens entirely.

      Writing for the four liberal justices, Ginsburg poked holes in Alito's reasoning, but to no avail. She closed by noting the warning from former Border Patrol officials that without civil liability, there would be "no meaningful deterrent to abuse at the border." In short, Ginsburg concluded, "it is Bivens or nothing." 

Phony Debate Over 'Nationwide Injunctions'

      The Trump administration and many legal conservatives have been on the attack for the past three years against the power of federal judges to block new government policies by issuing nationwide injunctions that extend farther than an individual judge's geographical jurisdiction.
      The then attorney general, Jeff Sessions, issued a broadly worded legal memorandum in September 2018 that described nationwide injunctions as "judicial activism" by go beyond a judge's authority by granting relief to individuals and groups beyond the plaintiffs in the individual case. The issue was featured in a keynote session at the conservative Federalist Society's annual convention in Washington just two months later.
      Two of the Supreme Court's conservative justices elevated the debate in a pointed attack on nationwide injunctions earlier this year [Jan. 31]. Justice Neil Gorsuch's five-page critique came in an opinion concurring in the Court's decision to stay an injunction issued by a federal court in New York City to block the administration's new rule to bar would-be immigrants likely to use food stamps or Medicaid if admitted to the United States.
      Gorsuch went beyond the issue of the so-called "public charge rule" by attacking what he called "the rise" in universal injunctions as contributing to "gamesmanship and chaos" in federal litigation. "Universal injunctions have little basis in traditional equitable practice," Gorsuch wrote.
      Justice Clarence Thomas, who joined Gorsuch's opinion, had similarly criticized nationwide injunctions in a concurring opinion  in the Court's decision two years earlier to uphold Trump's so-called Muslim travel ban.. Like Gorsuch in the later opinion, Thomas argued that so-called universal injunctions were a recent development, contrary to historical practice and constitutional limits on judicial power.
      "These injunctions are beginning to take a toll on the federal court system— preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch," Thomas wrote in the June 2018 decision.
      Several liberal legal academics sharply disagree that nationwide injunctions are a recent or extraconstitutional development. Mila Sohini, a law professor at the University of San Diego, argues in a law review article that universal injunctions date at least from the early 20th century and notes that the Supreme Court has upheld comparable injunctions without reservation in cases challenging state law. ""If Article III allows such injunctions as to state laws,," Sohini adds, referring to the Constitution's article on the federal judiciary, " it also allows such injunctions as to federal laws."
      Amanda Frost, a law professor at American University in Washington, argues in another law review article that universal injunctions are often the only way to provide complete relief to plaintiffs with a well-grounded legal case. "[S]ometimes," Frost adds, "anything short of a nationwide injunction would be impossible to administer."
      The Trump administration fared badly in lower courts on the Muslim travel ban and again in litigation over the public charge rule. A federal district court judge in California had issued a nationwide injunction to block the Muslim travel ban. A federal district court judge in Manhattan issued a nationwide injunction in October 2019 to block the administration's recently tightened "public charge rule."
      In all, the Trump administration had been on the losing side in 40 nationwide injunctions issued through September 2019, according to a report signed by Missouri's Roy Blunt as chair of the Senate Republican Policy Committee. That report counted no such single-court nationwide injunctions before 1963 and only 20 against Obama administration policies during his eight years in office.
      Significantly, Republican officials and conservative experts had been muted or silent when federal judges issued similarly broad injunctions to thwart legal initiatives with the Democrat Obama in the White House. Thomas wrote not a word, for example, when the Court acted in June 2016 to uphold a lower court decision blocking the Obama immigration policy known as DAPA &#151 "deferred action for parents of Americans."
      By speaking out now &#151 with the shoe on the other foot, so to speak &#151 Thomas and legal conservatives open themselves to charges of opportunism and hypocrisy in their criticisms. Liberal justices did not answer Thomas's critique of nationwide injunctions in the earlier case when they dissented from the Court's decision on the merits.
      The liberal bloc &#151 Ginsburg, Breyer, Sotomayor, and Kagan &#151 similarly did not respond in the recent case to Gorsuch's critique of the practice with Thomas but none of the other conservatives in tow. Sotomayor did respond, however, in a dissenting opinion when the same five-vote conservative majority voted on Feb. 21 to stay a narrow injunction against the public charge rule issued by a federal judge in Chicago limited to the state of Illinois.
      Sotomayor criticized the Trump administration for what she called the "now familiar" practice of asking the Supreme Court to stay lower court decisions even with appeals pending. In a seven-page opinion written only for herself, Sotomayor criticized the Court itself as well for granting such requests: "It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it."
      In short, the attack on nationwide injunctions is little more than a politically motivated argument from an administration that designs policy initiatives so poorly as to be on the losing side often in lower courts that the president cannot control. The Court's willingness to oblige the Trump administration in many of those cases unfittingly diminishes its "original meaning" role as an independent check on the powers of the executive branch.