Immediate need: a good name for the project described below. Please tweet ideas to @heidilifeldman or send an email to me at hlfgulc at gmail com.
Synopsis: Many people with an interest in politics attend law school. But no law schools provide hands on information for how to shape a legal career with an eye toward holding office at the local or even state level. Given the threat to rule of law emanating from the current federal government, we need to encourage young lawyers and law students already interested in and committed to rule of law, civil rights, and inclusive diversity to be the local level shock troops for these values across the country. To that end I am developing a cocurricular program ultimately for use across law schools nationwide and an online resource for current politicians and activists to make it easier for them to understand just how towns, cities, and counties as well as states can actually be nodes in a meaningful web of rule of law in the U.S.
Further information about the project
Goals: Publicize the power of states and municipalities in creating a decentralized web of human and civil rights protections. Make it easy for ordinary citizens, activists, and state and local office holders and their staffs to build this web. Draw progressive young adults to local and state politics by offering concrete, sophisticated information about how to run for state and local office.
1. Create an online handbook with specific, practical information and guidance. The handbook will include (but will not be limited to):
- An overview of the legal organization and powers of towns, cities, counties and states
- An explanation of home rule: what is it, which cities have it, how do they use it effectively; more general examination of how a state and its municipalities can effectively coordinate protection of human right and civil rights;
- Case studies on cities actively using local autonomy to protect rights; city-state battles over human rights or civil rights; municipality to municipality cooperation on human and civil rights protections; regional coordination of civil and human rights protections;
- Comparing different avenues of legal protection including litigation, regulation, and taxation.
2. Develop an extracurricular workshop series for progressive post secondary students interested in careers in state and local politics. The workshop series will initially be tailored to law students, covering topics such as the following.
- The structure of U.S. political parties, especially at the state and local level, and how state and local parties interact with national party organizations;
- When, whether, and how to become a formal member of a state or local branch of a political party;
- Public offices that specifically call for legal training, e.g. judgeships, state attorneys general;
- Overlooked but important public office, such as zoning boards, local magistrate;
- Election law, focusing on law relevant to candidates’ campaigns;
- Ballot access and voting procedures;
- Role of digital in state and local campaigning;
- Successful relationships with the press;
- Civic organizations that serve as pipelines to elected office.
I plan to pilot these workshops at Georgetown University Law Center and possibly at the University of Washington Law School and Seattle Law School and at law schools in North Carolina. I also hope to make them more widely available via the American Constitution Society for Law and Public Policy (http://www.acslaw.org/).
Some further information about me
I am Professor of Law at Georgetown University Law Center and, by courtesy, an Associate Professor in the Philosophy Department at Georgetown University. Immediately after the 2016 Presidential election, I created an unofficial co-curricular group for progressive Georgetown Law students interested in running for state and local office, staffing state and local campaigns, or both. Through informal outreach, this initiative has already attracted seventy students. Since January, I have arranged three speaker events for these students, hosting well attended lunchtime meetings with a top election lawyer, a leading journalist, and a digital campaign expert. Now, I want to find the resources to build this budding program in the ways described above.
A bit of deep background
The foundational legal framework of United States government rests on dual sovereignty. Dual sovereignty channels legal, political, and economic power. Prior to the American Civil War, dual sovereignty enabled chattel slavery, the worst transgression against human rights in United States history. Following the Civil War and subsequent efforts to dismantle Jim Crow, dual sovereignty concentrated attention to civil and human rights at the federal level. That concentration has created an imbalance of legal investment in protecting these rights, one weighted toward the federal government at the expense of state governments and their municipal subdivisions. This apportionment is not immutable. Indeed, the law of dual sovereignty means that states can directly exercise their authority to protect civil rights and the rule of law. Moreover, because states are sovereign over their subdivisions, they can give counties, towns, and cities real power to do likewise. They can, for example, ensure fair labor markets, protect free speech and freedom of conscience, guard against arbitrary or abusive uses of government power, increase access to education and to health care, provide cleaner water and more affordable food. But without specific, accessible information about how state and local governments operate, however, laypeople, activists, and even politicians miss out on opportunities to resist and counteract federal hostility to rule of law and civil rights throughout the United States.
On March 6, President Trump issued a replacement Executive Order (EO) for the previous ones he had issued regarding immigration from several countries. He did this, it seems, to address concerns about constitutionality of the first EO. The Department of Justice immediately filed a “Notice” with the United States District Court in the Western District of Washington, one of the federals court that had issued a nationwide emergency injunction against enforcement of the original EO. This injunction remains in force as I write this post, having been upheld by the Ninth Circuit. The Executive Branch is taking the position that the new EO differs from the old one in ways that mean it can be enforced effective immediately. The Attorneys General of Washington and Minnesota, now joined by Attorneys General from New York and Massachussetts, oppose this for two, related reasons. The AGs argue, on behalf of their respective states, that 1) the new EO largely duplicates the old EO and 2) that the Executive Branch cannot simply deem itself no longer subject to an injunction issued by the Judicial Branch. That second claim is strikingly important even though it does not go to the merits of the first claim or to the question of the ultimate constitutionality of either EO. Rather, the second claim goes to the question of whether the Executive Branch must demonstrate to the District Court that the original injunction does not apply to the new EO based on the law applicable to modifying or removing federal injunction or that such modification or removal should be entered by the District Court. In other words, the AGs claim that President Trump is seeking to free the Executive from the injunction by fiat when in fact he does not have the authority to do this. Below is the Notice filed by the DOJ on behalf of the President and the AGs brief in response, annotated by me to assist nonlawyers in following each side’s arguments.
Notice of Filing of Executive Order
Response to Notice of Filing of Executive Order
Many people will have to learn about unfamiliar legal issues and institutions in order to understand what is happening to Daniel Ramirez Medina, the immigrant enrolled in DACA who was arrested, without a warrant or apparent probable cause on February 10, and is currently being detained by ICE, which has initiated deportation proceedings against him. Because Daniel exemplifies the problem of the most vulnerable being acted upon by the most powerful government in the world we all must understand what is happening here. Those of us who live in the U.S. and are not detained by our government must decide whether and how to stand with Daniel.
Here is Daniel’s legal situation in brief: today, February 17, 2017, a U.S. federal district court held a status conference in the case of Daniel Ramirez Medina v. the Department of Homeland Security, et al (CASE NO. 2:17-CV-00218-RSM-JPD). The district court could have required Daniel’s immediate release from government detention, but it did not. Instead the district court ruled a U.S. immigration court should proceed with Daniel’s deportation hearings, starting with a bond hearing by February 24. If Daniel remains in the country and in government custody in March, the district court will consider again whether it has jurisdiction to consider the legal merits of his detention; if the district court accepts jurisdiction it will decide whether Daniel’s detention is lawful.
Let’s break that down.
The federal judicial branch consists of courts independent of the executive and legislative branches. But these courts are not the only courts our country has. Various tribunals are set up within the executive branch and have jurisdiction over issues not reserved to the judicial branch. Immigration courts are like that: they have specific powers related to immigration. Chief among them is the authority to decide whether an immigrant in the U.S. should be deported. Unlike federal courts, immigration courts cannot decide questions of constitutional law.
Daniel’s attorneys contend that his original arrest was unlawful and unconstitutional. As a person enrolled in DACA, they argue, he was in the U.S. legitimately and had constitutionally protected rights protecting him from being summarily detained and deported. The U.S. government has not yet had to address these arguments because, upon his arrest, they stripped Daniel of his DACA enrollment and therefore his work permit, and initiated deportation proceedings against him. Those deportation proceedings take place in an immigration court.
A person in the midst of deportation proceedings may be eligible for release from custody while these are ongoing, and the federal district court today directed Daniel to seek a bond hearing in immigration court. The district court also instructed that this hearing be held within a week, that is, not later than February 24.
If the immigration court orders Daniel released while deportation proceedings take place, his demand for habeas corpus will most likely become irrelevant, or in technical parlance, moot. If he is not deported, he might eventually be in a position to bring a lawsuit against the government for having detained him unlawfully, either as a matter of wrongful imprisonment or as a violation of his Fifth and Fourth Amendment rights under the U.S. constitution. If he is deported, it is extremely unlikely the merits of his detention will ever be addressed.
However the immigration court rules on the question of Daniel’s deportation, the federal district court judge will not review that determination. Immigration court orders are reviewable but primarily within the executive branch system. Either side may appeal a deportation order to the Board of Immigration Appeals. If BIA rules in favor of the immigrant, the government has no right to appeal further; if it rules in favor of the government, the immigrant may seek review in federal appellate court. Right now, it is too early in the process to know what legal issues will remain open after an immigration court’s decision on Daniel’s deportation. It is even too early to say with precision what issues of fact and issues of law will be determinative in the initial deportation decision itself.
What is clear right now is that a person who was enrolled in a government sponsored program for immigrants was summarily arrested and remains detained seven days later, and probably will stay detained for at least another seven days. Daniel will spend up to fourteen days in government custody without any judicial attention to the merits of the validity of his imprisonment. That plain, hard truth is what makes understanding Daniel Ramirez Medina’s legal situation incumbent on all of us.
On Friday, February 17, the U.S. District Court of the Western District in Seattle, Washington is holding a conference to determine Daniel Ramirez Medina’s status. The crux of the issue now before the court is whether Daniel will be treated as someone possessed of the constitutional rights that demand a regular federal court to decide whether he should be freed from government custody or whether he should be treated as somebody whose presence in this country is so illegitimate that he does not merit such consideration, and instead can have his future handled as an administrative matter. The US government takes the position that Daniel is a dangerous alien subject to deportation proceedings. Daniel’s attorneys argue otherwise. Their brief (“the Ramirez brief”) submitted for tomorrow’s conference is publicly available online. Thus far, I have not been able to find online the government brief to which they are responding.
For nonlawyers, here are key passages from the 19 page Ramirez brief. These passages are high points in the argument that Daniel was seized by the government unlawfully and unconstitutionally, and that therefore he must be released from custody immediately, with any further proceedings related to his arrest to be decided in regular federal court rather than in administrative adjudication in an immigration court.
At the time of arrest and detention, Mr. Ramirez was authorized to live and work in the United States, pursuant to his DACA status. And yet, because he was at the wrong place at the wrong time, he had all his benefits summarily cancelled, he got arrested, and he got thrown in detention. Essentially, Mr. Ramirez is asserting questions about what it means to be a DREAMer – whether he and others can safely rely on the implicit promises made to them by the United States government.
The Respondents [the U.S. government] assert that the issuance of the NTA by a single immigration officer immediately terminated Mr. Ramirez’s DACA deferred action without notice. The Notice of Action dated February 17, 2017, states that the employment authorization terminated automatically as of the date the NTA was issued as well. The Due Process Clause does not permit this result.
Termination of DACA and the work authorization “involves state action that adjudicates important rights,” Goldberg v. Kelly, 397 U.S. 254, 262 (1970), and “[t]his constitutional challenge cannot be answered by the argument that [the] benefits are a ‘privilege’ and not a ‘right,’” Id. (citation omitted) (holding that termination of welfare benefits requires pre-deprivation notice and “opportunity to be heard”). That is the case here.
To expect the government to honor its promise and follow its own rules should not have been too much for Mr. Ramirez to expect.
As the Supreme Court has long recognized, the Due Process Clause forbids the government from punishing people for engaging in conduct that the government itself has encouraged. See, e.g., Cox v. State of La., 379 U.S. 559, 571 (1965) (holding that the government could not punish protestors for demonstrating in a location where state officials had said the protest was allowed). For the government now “‘to say to [Mr. Ramirez], ‘The joke is on you. You shouldn’t have trusted us,’ is hardly worthy of our great government.’”
The only issue presented in this habeas petition is whether Mr. Ramirez’s current detention (and previous arrest leading to that detention) is unconstitutional, given his status as a DACA beneficiary.
The Respondents now apparently claim that this is, in fact, an arrest and detention relating to a removal proceeding. That is not the case. The situation surrounding the arrest and detention clearly demonstrate that this was not a thoughtful, intentional action on the part of ICE. The ICE agents did not have an arrest warrant for Mr. Ramirez when they arrived at the home of his father. They clearly did not know whether he was a United States citizen or not, as they asked him upon arrival: “Were you born here in the United States?” This removal proceeding they have initiated is a clear distraction and is wholly irrelevant to the habeas petition currently facing this court.
As stated above, the question before this court on this habeas petition is whether, given this complex and precise framework, a reasonable expectation was created that a DACA beneficiary (such as Mr. Ramirez) could not be arbitrarily and capriciously arrested and detained. That is a question squarely within the jurisdiction and expertise of this court, and one that cannot be adjudicated by an Immigration Judge.
[footnote 6] If the Respondents want to engage in such tactics, Mr. Ramirez is entitled to a full and fair opportunity to litigate his claims. This would include the opportunity to take discovery in a case proceeding in federal court: What investigations did DHS have going on with respect to Mr. Ramirez at the time of his arrest? What documents did they have linking him to gang activity? What gang members in particular is he believed to be associated with? What type of criminal activity is he suspected of involvement in? When did the gang affiliation start? Did it start before his DACA application? If so, what, if any findings did DHS make regarding his gang membership during his background check? If the gang affiliation has started since his most recent DACA application (May 2016), what evidence do they have of such a change in circumstance? Have they ever applied for an arrest warrant for Mr. Ramirez? Were the ICE agents who arrested Mr. Ramirez’s father under instruction to also arrest Mr. Ramirez? If so, by whom? If not, at what point did they decide to make the arrest? Why did they only arrest Mr. Ramirez and not his brother?
Today, the Daily Beast published a short story about Ginni Thomas, Justice Clarence Thomas’s wife, writing to a listserve to request assistance setting up a tool for “daily text capacity for a ground up-grassroots army for pro-Trump daily actions.” According to her message, she “met with a house load” of “grassroots activists … who wish to join the fray on social media for Trump and link shields and build momentum….[w]e want a daily textable tool to start…” Ms. Thomas’s model, according to her email is Daily Action, covered by the Washington Post here. Below is the background to the brief remarks I made in the Daily Beast story.
Judicial recusal or disqualification as it is more aptly called is a sensitive topic. Judges are people in the world, they have friends and family and hobbies and interests, all of which can inform how they view cases that come before them. This is as true of Supreme Court Justices as any other judges. Judges’ spouses are entitled to have political views, to express them, to be politically active, and/or to hold elected or appointed office. A judge’s spouse may certainly create and deploy an app to support specific Executive branch orders and actions. But if one of those orders or actions becomes the subject of litigation, a legitimate question arises about whether the judge can decide the lawfulness or constitutionality of that order or action without an “appearance of impropriety” if not actual partiality.
U.S. federal law requires that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” As explained by experts from the Federal Judicial Center:
Section 455(a) requires disqualification for the appearance of partiality (i.e., when a judge’s “impartiality might reasonably be questioned”) as compared to § 455(b)(1), which requires disqualification for actual partiality (i.e., when a judge “has a personal bias or prejudice toward a party”).
So, if a reasonable ordinary citizen might think reasonably think that a judge cannot be impartial in a particular case, the judge should disqualify himself or herself.
While a Supreme Court Justice may disqualify himself or herself on his or her own motion (sua sponte, in legal parlance), more usually a party to a lawsuit makes such a motion. This happened in Cheney v. United States District Court, where Justice Antonin Scalia chose not to recuse himself on grounds that his social outings with Vice-President Cheney did not create even an appearance of partiality and on the grounds that it would be improvident to reduce the court to an even number of justices in the case because of the possibility of a tied decision. Note, Justice Scalia did not complain that the request that he recuse himself was frivolous or ungrounded. Indeed, he took it seriously enough to explain his reasons for denying it.
If any of the cases contesting the lawfulness or Constitutionality of specific executive orders or conduct of Donald Trump come before the Supreme Court, and a spouse of a Justice is mobilizing a grass roots army in favor of that specific order or conduct, a reasonable citizen might well reasonably think that the Justice cannot decide the case impartially. Furthermore, if the court consists of eight members, the need to avoid the possibility of a tie would militate in favor of an otherwise warranted recusal.
Nobody can make a Supreme Court Justice disqualify himself or herself from participating in any given case. And a Justice and his or her spouse might decide that the spouse should feel free to help grass roots armies opposing the left and supporting the President even if that would later ethically require the Justice to disqualify himself or herself in a particular case. But in an era where the President of the United States continually attacks the legitimacy of the judiciary, all parties to the judicial process should be aware of prevailing ethics laws and standards, and seek to meet and exceed them.
Daniel Ramirez Medina is, as of this writing, the first “DREAMer” detained and held by ICE, U.S. Customs Immigration Enforcement, under Donald Trump’s administration. Below is copy of the legal petition his attorneys have submitted to get him out, annotated by me to help non-lawyers understand the key points. This petition for habeas corpus, a request to free Ramirez from government custody, sums up the extreme menace of a government exercising its power without respect for fundamental rule of law. Ramirez is physically captive when he had every legitimate legal and intuitive expectation that he would not be subjected to this treatment. He was picked up and has been held without observation of due process, a search or seizure warrant, or probable cause to suspect him of a crime. In other words, Trump’s ICE has stripped Ramirez of the most basic protections from government overreach in Anglo-American law, protections with roots deep in English and U.S. legal precedent and tradition.