Sunday, December 21, 2014

Justices ' Blind Eyes to Police Mistakes

      The brake light case brought out a bit of whimsy from Chief Justice John G. Roberts Jr. as he summarized the Supreme Court’s decision from the bench last week [Dec. 15]. Most people, Roberts surmised, would be surprised to learn that you only need one brake light in North Carolina — “even if you are from North Carolina.”
      The real issue in Heien v. North Carolina, however, was not brake lights, but the power that police are to be given under the law. And in a year when police conduct in the killing of civilians was a major national issue, the Supreme Court chose to give police more room for mistakes instead of stronger incentives to strictly follow the law.
      By an 8-1 vote, the court held that a police officer can stop someone for violating a non-law — and use any evidence found in a subsequent search for a later prosecution — as long as the officer’s mistake about the law was a reasonable one. In a sharp dissent, Justice Sonia Sotomayor argued that a police officer’s actions in such an instance should be judged based on “the actual state of the law,” not the officer’s mistaken understanding.
      The case began as a mundane traffic stop on Interstate 77 in Surry County, N.C., on the morning of April 29, 2009. Nicholas Heien was lying in the back seat of his car with friend, Maynor Javier Vasquez, driving. Patrolling the highway, Sgt. Matt Darisse, a Surry County sheriff’s deputy, thought Vasquez appeared stiff and nervous, decided to follow the car, and eventually pulled the car over after noticing one of the brake lights not working.
      After checking the registration, Darisse was about to let the men off with a warning, but he became suspicious when the two men gave inconsistent answers about their destination. Darisse asked to search the vehicle; the two men agreed; and Darisse found a baggie of cocaine in the side compartment of a duffle bag. Heien eventually pleaded guilty to attempted trafficking, but reserved the right to appeal on Fourth Amendment grounds.
      The Fourth Amendment prohibits not only an unreasonable search but also an unreasonable seizure. Despite the depictions on cop shows, police generally have no power to stop you on the street, or on the highway, unless they have reason to believe you are violating a law. Heien argued that Darisse had no authority for the traffic stop because North Carolina law requires only one working brake light, not two.
      This gap in the law might seem counterintuitive, but the “plain text” of the applicable statute requires only that a car be “equipped with a stop lamp on the rear of the vehicle” (emphasis added). The North Carolina Court of Appeals agreed with Heien’s interpretation, ruled Darisse’s stop of the vehicle “objectively unreasonable,” and ruled the drugs found in the subsequent search inadmissible.
      The North Carolina Supreme Court reinstated the conviction. Darisse had made a reasonable mistake, the state high court ruled. “An officer may make a mistake, including a mistake of law,” the court said, without violating the Fourth Amendment.
      The U.S. Supreme Court had long held that police can make reasonable mistakes of fact without violating the Fourth Amendment, but had never explicitly allowed that same discretion for mistakes of law. To Roberts, the answer was obvious. The Fourth Amendment prohibits only unreasonable police conduct, Roberts stressed, and reasonable police can make reasonable mistakes not only as to the facts but also as to the law.
      Roberts sought to qualify the holding. “The Fourth Amendment tolerates only reasonable mistakes,” he wrote, “and those mistakes — whether or fact or of law — must be objectively reasonable.” In a concurring opinion, liberal justices Elena Kagan and Ruth Bader Ginsburg emphasized the limitation. “[T]he government cannot defend an officer’s mistaken legal interpretation,” Kagan wrote, “on the ground that the officer was unaware of or untrained in the law.”
      Among the justices, only Sotomayor, a former assistant district attorney in New York City, has actual experience in criminal justice at the local level. In that world, police often make mistakes, sometimes deadly ones. And police already have a lot of leeway not only for reasonable mistakes of fact but also for pretextual stops. In Whren v. United States (1996) the court ruled, unanimously, that the Fourth Amendment allows police to stop a car for a routine traffic violation even if the stop was a pretext for a different purpose — in that case, drug enforcement.
      Sotomayor, attuned to the real-world consequences, said the court’s new decision would have the effect of “further eroding the Fourth Amendment’s protections of civil liberties in a context where that protection has already been worn down.” Giving police the power to stop a vehicle on the basis of a nonexistent law, she said, “significantly expands” their authority. The result, she said, is "bad for citizens” and “bad for police.”
      The police who have been in the news in recent days — in Ferguson, Mo.; New York City; and Cleveland, for example — give no confidence that this added discretion will be applied with care — or evenhandedly as between white and black civilians. Think as well about Maricopa County’s blustery anti-immigrant sheriff Joe Arpaio or anti-gay officers in un-gay friendly jurisdictions around the country. The courts stand between them and law-abiding citizens, but the Supreme Court forgot that role in its decision last week.

Thursday, December 11, 2014

Torture Report: Worse Than We Realized

      With Americans reeling from the shock of the September 11 terrorist attacks, President George W. Bush directed the Central Intelligence Agency (CIA) less than a week later to capture, detain, and interrogate those responsible for the attacks or possibly planning new ones. Two months later, CIA lawyers identified what they evidently regarded as a central issue.
      “A policy decision must be made with regard to U.S. use of torture,” the lawyers wrote in a Nov. 26 memo entitled, “Hostile Interrogations: Legal Considerations for C.I.A. officers.” The lawyers noted that “a novel application” of the recognized legal defense of necessity “could be used to avoid prosecution of U.S. officials who tortured to obtain information that saved many lives.”
      The memo came to light only this week [Dec. 9] as part of the 700-plus page report from the Senate Intelligence Committee issued after the committee’s six-year investigation of the CIA’s detention and interrogation policies. The committee’s majority Democrats disagreed with the Republican minority over the document’s import. Six of the panel’s GOP members noted in their minority views that the CIA lawyers went on to reject the hypothetical use of a necessity defense.
      Still, the memo shows that “torture” was on the table even before the CIA had fashioned or started to use the tactics that the committee majority says were even more brutal than already reported. Throughout the Bush administration’s remaining seven years in office, the “T” word was banished from public statements. Instead, administration officials crafted the Orwellian phrase “enhanced interrogation tactics” for practices such as waterboarding recognized as torture when used by other countries but apparently not by the United States.
      More than a decade later, CIA apologists still demur. On the PBS NewsHour [Dec. 10], former agency spokesman Bill Harlow rejected the T word in favor of the bureaucratic acronym “EITs.” But Intelligence Committee chair Dianne Feinstein, the California Democrat who has been if anything less critical of the CIA than warranted, finds no basis for ambiguity. “It is my personal conclusion,” Feinstein writes in the opening of the 526-page majority report, “that, under any common meaning of the term, CIA detainees were tortured.”
      The issue is more than semantics. Torture is prohibited by domestic and international law, without exception. The Justice Department’s Office of Legal Counsel’s infamous memo written by John Yoo contended that the president had powers as commander in chief to authorize the use of torture despite the law, but the memo was repudiated by the OLC’s later director, Jack Goldsmith. And apart from legal considerations, “torture” is harder to sell to the public than “enhanced interrogation tactics,” even if polls indicate public support for torture if needed to save lives.
      On that point, the Intelligence Committee majority is emphatic. The CIA’s interrogation tactics, the report concludes, did not save lives, thwart attacks, help capture high-value terrorists, or produce significant “actionable intelligence.” Feinstein, seven Democrats and Maine’s Democrat-caucusing-independent Angus King all subscribe to that proposition.
      Maine’s somewhat independent Republican Susan Collins joined in the majority report, but wrote in separate views that she finds it unknowable whether the interrogation tactics were or were not effective. The committee’s Republican vice chairman, Georgia Saxby Chambliss, and five other Republicans insist the evidence shows the “enhanced” interrogations did produce information essential in, among other things, capturing 9/11 mastermind Khalid Sheikh Mohammad and thwarting several plotted attacks.
      That debate, detailed in a New York Times graphic, will continue. Seemingly beyond dispute, however, is the Intelligence Committee’s finding that more detainees were tortured than previously reported — 39 in all — and that the tactics were more brutal than previously known. Readers with weak stomachs will want to skip the passages about the five detainees subjected to “rectal rehydration.” Bush himself was said to have flinched when told about a detainee who was chained to the ceiling of his cell and forced to urinate and defecate upon himself.
      Bush was never fully briefed on the program, however, according to the report. Nor were the House and Senate intelligence committees, which supposedly oversee the CIA. The agency kept the very existence of the interrogation tactics secret from Secretary of State Colin Powell and Defense Secretary Donald Rumsfeld, fearful of opposition, especially from Powell. Once the cover was blown by the Washington Post in late 2005, however, the agency worked with compliant media contacts to selectively leak information and misinformation to depict the program as a success.
      To top it all, the CIA managed the program with bureaucratic ineptitude. The military psychologists who designed the program — and received $81 million in fees for their company — knew nothing about al Qaeda or terrorism in general. Untrained interrogators were used, few records were kept, and some of those tortured were marginal figures at most. At the McLean headquarters, officials were often fuzzy on the details.
      As for accountability, that is not going to happen. The most damning evidence — the videotapes – were destroyed on orders from spymaster Jose Rodriguez, with no one prosecuted. The Justice Department reiterated this week that there is no basis for criminal prosecutions. The president who might have been subject to impeachment is out of office; the major architects of the program are out of government, comfortable in the private sector or academia. But the committee at the least has put down one marker. “This and future Administrations,” Feinstein writes, must “ensure that coercive interrogations practices are not used by our government again.”

Sunday, December 7, 2014

When Is a Facebook Rant a “True Threat?”

      With the Vietnam War escalating, teenager Robert Watts signaled his opposition to President Lyndon B. Johnson’s policies by telling a political rally that if drafted and forced to carry a rifle, “the first man I want to get in my sights is L.B.J.” The government took Watts’ jibe seriously enough to prosecute him under a broadly written federal law that makes it a crime to “knowingly and willfully” threaten the president.
      At the Supreme Court, however, the justices ruled, 6-3, that Watts was guilty only of “political hyperbole,” not a “true threat.” Watts’ statement, “taken in context,” had to be interpreted as constitutionally protected speech, the Court wrote in an unsigned opinion in Watts v. United States (1969).
      Fast forward more than 40 years to a bitter divorce in 2010 marked by seemingly violent Facebook rants by Anthony Elonis against, among others, his wife Tara and an FBI agent who had been monitoring Elonis’s Internet posts. Elonis was prosecuted under the general federal law against threats, convicted, and sentenced to 44 months in prison.
      On appeal to the Supreme Court, however, Elonis argued that his pseudonymous Facebook posts were “therapeutic” and not “true threats” at all. And his appeal in Elonis v. United States gained attention as a first-ever, high-level airing of how to apply free-speech rules to the new world of social media.
      Free-speech groups, including the American Civil Liberties Union and leading media organizations, filed briefs supporting Elonis’s appeal even while dissociating themselves from what the ACLU called Elonis’s “crude and offensive” postings. They warned that, in upholding Elonis’s conviction, the Third U.S. Circuit Court of Appeals had found no need for prosecutors to prove that he actually intended to threaten physical harm to his wife or the FBI agent.
      The free-speech concerns about the appeals court ruling may be well placed, but the Supreme Court ought not be misled into making Facebook a wild, wild West for violent postings. Social media need First Amendment breathing room, of course, but a smiley face or “LOL” is not enough to immunize what would be seen as a “true threat” if delivered in a face-to-face conversation, a telephone call, or an old-fashioned, written letter.
      Representing the government, deputy U.S. solicitor general Michael Dreeben rightly noted in the arguments last week [Dec. 1] that threats “cause harm and disruption to society and to the individuals who are targeted” even if they seem unlikely, or even impossible, to be carried out. Speakers should be presumed to understand the meaning of words they speak, Dreeben contended, and should be held “accountable for the consequences of those words.”
      Elonis’s postings clearly caused the kind of harm and disruption that Dreeben had in mind. After his wife obtained a “protection from abuse” order, Elonis asked on Facebook, “Is it thick enough to stop a bullet?” On the same day, he posted that he had “enough explosives to take care of the state police and the sheriff’s department.”
      The next day, Elonis appeared to threaten a mass shooting at the kindergarten class at a local school. The school reported the post to the FBI, which sent agent Denise Stevens to Elonis’s home the next day. Elonis refused to be interviewed and, later that day, suggested in a Facebook post that he would be strapped with a suicide bomb if she returned.
      Representing Elonis, Washington, D.C., appellate expert John Elwood argued that subjective intent was, and always has been, a necessary element of proof in a threat prosecution. But justices across the ideological spectrum questioned how, as a practical matter, the government could meet that burden. “How does one prove what’s in somebody else’s mind?” Justice Ruth Bader Ginsburg asked.
      Elwood answered that in the digital world there would be abundant evidence on a cell phone or computer of a speaker’s state of mind. But Chief Justice John G. Roberts Jr. was unconvinced. He noted Elonis’s contention that the posts were either therapy or rap-style artistry. “Based on your submission,” Roberts told Elonis’s lawyer, “all he has to say is either . . . it’s therapeutic, it’s a good thing I could do this, or it’s art.”
      Later, Justice Samuel A. Alito Jr. said Elwood’s argument amounted to “a roadmap for threatening a spouse and getting away with it.” “You put it in rhyme and put some stuff about the Internet on it,” Alito continued, “and you say, ‘I’m an aspiring rap artist.””
      Less pointedly, some justices voiced concerns about overregulating. Roberts, for example, acknowledged Elwood’s point that social media are a distinct “subculture” and teenagers in particular could be sent to jail for what Elwood called “ill-timed, sarcastic comments.” Justice Sonia Sotomayor noted to Dreeben that the court has been reluctant to create new “exceptions” to the First Amendment. But Dreeben countered that the existing rules are “not an exception” to the First Amendment but “part of the implementation.”
      Elonis has already served three years in prison, so the case is important mostly for the rule the justices will lay down. Social media already have more boorish language and conduct than needed. The Supreme Court needs to articulate a careful standard that can protect “true” political speech and satire on social media without giving free rein to those who would use the First Amendment as a license for threats of violence, laughing out loud through their posts.

Sunday, November 30, 2014

In Ferguson, Prosecutors’ Fateful Mistake of Law

      Edward Garner made off with a purse and $10 in cash after burglarizing a home in Memphis, Tenn., late on the evening of Oct. 3, 1974. He paid for his crime with his life when a Memphis police officer, Elton Hymon, shot him in the head as Garner fled on foot and ignored the officer’s shouted instruction to halt.
      A Shelby County grand jury declined to bring any charges against Hymon for the shooting, but Garner’s father later filed a federal civil rights suit against Hymon and the city of Memphis for his son’s death. And when the case reached the U.S. Supreme Court, the justices ruled that the Tennessee law authorizing the use of deadly force to apprehend any suspected felon fleeing from police was unconstitutional.
       “The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable,” Justice Byron R. White wrote for the 6-3 majority in Tennessee v. Garner (1985). White, a pro-law enforcement vote in most criminal procedure cases, concluded that the Fourth Amendment’s rule against “unreasonable” seizures allows the use of deadly force only if necessary to prevent the escape of a suspected felon who poses a physical threat to the officer or to others.
      A decade after the Supreme Court ruling, a law professor who ran the numbers found a measurable decline in the number of police homicides over time. The drop was slightly greater in those states that formally found their deadly-force statutes unconstitutional than in those states that left laws inconsistent with the ruling on the books.
      Missouri was among those states that never changed its unrestricted deadly-force law. So when the St. Louis County prosecutors assigned to the grand jury investigating the shooting death of Michael Brown went to the law books, they found a statute that had not been changed since 1979, six years before the Supreme Court’s ruling. And the prosecutors gave grand jurors that law on Sept. 16 as Ferguson, Mo., police officer Darren Wilson was about to testify before them and give his account of the fatal encounter with Brown.
      It was more than three months later, on Nov. 21, when prosecutor Kathi Alizadeh confessed error to the grand jurors. Alizadeh told the grand jurors that she and colleague Shelia Whirley had found after additional “research” that the Missouri statute “does not comply with the case law.”
      Back in September, the prosecutors had given the grand juror a printed copy of the Missouri deadly-force statute to have before them as Wilson testified. Now, Alizadeh told the grand jurors to “fold that in half so that you [ ] don’t necessarily rely on that. . . .” She proceeded to give the grand jurors a new sheet of paper — apparently not included in the materials released by the St. Louis County prosecutor’s office. The new handout “does correctly state” the law on use of deadly force, Alizadeh explained, but without specifying exactly what was wrong from the previous handout.
      From the transcript, it does not appear that Alizadeh identified the Supreme Court’s decision by name or explained its holding or reasoning. She simply said that the previous explanation of the law had “something in it that’s not correct. Ignore it totally.”
      Garner’s death 40 years earlier differed in significant respects from Brown’s fatal encounter on the afternoon of Aug. 9. Garner was slight of build: 5-foot-4 and 100 pounds, according to the evidence; Brown was bigger: 6-foot-2 and 280 pounds. Garner was suspected of nothing other than the alleged burglary; Brown had compounded his suspected offense — the theft of a package of cigarillos from a conveniences store — by a tussle of some sort with Wilson as the officer sat in his patrol car.
      Most significantly, Hymon assumed Garner was unarmed and fired at Garner’s back. Wilson testified that he fired at Brown only after the teenager had reached inside his waistband, possibly for a gun, and had begun to charge at the officer. “At this point,” Wilson told the grand jurors, “I’m backpedaling pretty good because I know if he reaches me, he’ll kill me.”
      Some witnesses disputed Wilson’s reconstruction of the events. According to those accounts, Brown had his hands up as though to surrender. In any event, Wilson never saw Brown with a weapon. And from his own words Wilson started out in pursuit of Brown not because he saw the teenager as a threat to himself or to others but only because he thought it his job to apprehend the fleeing suspect.
      Three decades earlier, the Supreme Court had laid down a rule that catching a crook does not of itself justify a police officer in using deadly force. But grand jurors did not know of that rule when they initially listened to Wilson’s testimony. Instead, the grand jurors had in mind the prosecutors’ mistake of law that completely excused Wilson. Asking the grand jurors three months later to ignore the mistake was surely a fruitless attempt to unring the bell.
      The grand jurors are barred by law from explaining their reasoning or even disclosing their vote. But even without the other mistakes by police and prosecutors in the case, the prosecutors’ ignorance of the current law on deadly force was enough to doom any chance for the grand jury to hold Wilson accountable at law for his actions.

Wednesday, November 26, 2014

In Ferguson, Passive Prosecutors Let a Case Slip

      When Detective Nick Amaro shot and seriously injured an unarmed black teenager on the TV program Law and Order: Special Victims Unit, the police brass and the district attorney’s office came down hard on him. Ignoring advice from his fellow officers, Amaro (played by actor Danny Pino) asked to go before the grand jury investigating the shooting to plead his case.
      As seen in the Jan. 15, 2014, episode, Amaro faced hostile questions from grand jurors, but explained how he had mistaken a ricocheting bullet for the victim firing at one of his fellow officers. Amaro insisted he had followed police procedure in the shooting. His account, along with his distraught regret at the boy’s injuries, persuaded the grand jury not to indict him.
      However fictitious the episode, it illustrates that it is not unheard of for the target of an investigation to appear before a grand jury. That is the route that Ferguson, Mo., police officer Darren Wilson took on Sept. 16 to tell his side of the Aug. 9 killing of the unarmed black teenager Michael Brown. Unlike the typical case, however, the two St. Louis County prosecutors in the grand jury room treated Wilson, the target of the investigation, with kid gloves, not as a potential defendant in a homicide case.
      The 81-page transcript of Wilson’s testimony was released along with the rest of the testimony and evidence before the grand jury on Monday night [Nov. 24] as District Attorney Robert McCulloch announced the panel’s decision not to charge Wilson with any crime for the shooting. The transcript shows that prosecutors Sheila Whirley and Kathi Alizadeh allowed Wilson to tell his story with few interruptions and with nothing like the kind of challenging cross-examination one would expect.
      The testimony makes clear there was ample probable cause to support an indictment, most likely for voluntary manslaughter, even if a conviction at trial was at best a long shot. Wilson’s testimony strains credulity at many points, but by his own account he chose to use deadly force instead of less lethal alternatives — mace or a baton — once the confrontation with Brown had begun. And Wilson’s claim that he feared for his life from a fist-swinging teenager simply mocks his supposed training as a police officer to deal with resisting suspects.
      Wilson mishandled the confrontation from the moment he saw Brown and Brown’s friend Darien Johnson walking down the middle of the street on the afternoon in question. He never should have initiated the encounter from the vulnerable position inside his patrol car. Had Wilson followed proper police procedure and gotten out of the car, Brown would not have had him at a disadvantage in the fight that ensued.
      As for the fight itself, Wilson’s description at the least exaggerates his physical injury. After taking two punches, Wilson said he felt that “a third one could be fatal.” But the hospital photograph taken afterward shows only minor swelling on the left side of his face. Even so, Wilson had quickly decided to use his weapon. “Once he was hitting me in the face,” he told the grand jury, “that enough was in my mind to authorize the use of force.”
      The physical evidence does confirm Wilson’s testimony that Brown grabbed for the gun and that Wilson eventually fired at close range once he gained control of the weapon. An autopsy showed that Brown had gunpowder residue on his hand. When the shots caused Johnson and then Brown to flee, Wilson got out of the car and ordered them to halt and get on the ground. As Wilson told it, Brown instead turned, reached inside his waistband, and started to “charge.” Wilson fired 10 times, and Brown fell to the ground, fatally wounded.
      A cross-examination could have probed Wilson’s account, but the prosecutors merely let it go. On the PBS NewsHour, two experts shook their heads in disbelief. Susan McGraugh, a law professor at St. Louis University, said the prosecutors were merely “pitching softballs” at Wilson. Christina Swarms, a one-time criminal defense lawyer and now director of litigation for the NAACP Legal Defense Fund, recalled that she often had her clients appear before grand juries. “I would love to have had my clients handled by prosecutors the way the prosecutors handled” Wilson, she said.
      The prosecutors’ performance matched their boss’s passive attitude throughout the case. Throughout, McCulloch spoke only of presenting the evidence to the grand jury, not actually seeking an indictment. In his news conference, he described his office’s role not as prosecutors but as “legal advisers” to the grand jury.
      Many in the Ferguson community and many others across the nation rightly feel that McCulloch simply punted the case to the grand jury. Prosecutors rely on cooperation with police, but McCulloch’s countywide office could have risked poisoning the well with the small Ferguson police department by taking a more assertive stance.
      Now, Ferguson faces a challenging task of healing the breach between the predominantly white police department and the predominantly black citizenry. Wilson, who showed no remorse in his grand jury testimony, is reportedly resigning from the force. But more by way of reform will be needed in Ferguson and elsewhere to protect against the unnecessary deaths of civilians at the hands of those sworn to protect and serve, not to menace and kill.

Sunday, November 23, 2014

On Immigration, Obama on Sound Legal Ground

      President Obama has powerful legal arguments on his side to defend his decision to protect approximately 4 million undocumented aliens from the threat of deportation. But Obama weakened his case in the court of public opinion by the politically motivated decision to defer formalizing this policy until after the midterm congressional elections.
      The 33-page legal memorandum by the Justice Department’s Office of Legal Counsel (OLC) provides a well-reasoned and well-documented conclusion that the president’s policy is “a permissible exercise of [the Department of Homeland Security’s] discretion to enforce the immigration laws.” As the memorandum explains, the policy specifies somewhat restrictive criteria for eligibility for the time-limited protection from deportation and limits the legal rights or benefits for immigrants covered by the policy: work permits, yes; health benefits, no; and no legalization or path to citizenship.
      The memorandum cites Supreme Court precedents, congressional enactments, and longstanding regulations as legal authority. The categorical protection for immigrants who have been in the United States for four years and have no criminal record makes sense given the inevitable need to focus law enforcement resources on a small fraction of the 11 million undocumented aliens in the country today. And the policy is seen as “consonant with” congressional policy and as furthering “an important humanitarian interest,” to wit, “family unity.”
      The OLC memo gains credibility by its second conclusion that the same protection from deportation — in legal parlance, “deferred action” — cannot be extended to the parents of immigrants who have been previously been granted that status. The memo finds “no precedent for using deferred action to respond to humanitarian concerns arising from previous exercise of deferred action.”
      The strong legal and policy arguments in support of the policy all but destroys the administration’s justification for delaying the move until after the midterm elections. All of the reasons for the policy were just as strong a year ago as they are now. Arguably, Obama needed to delay until time had effectively run out for the House of Representatives to act on the immigration reform bill already passed by the Senate.
      By September, however, the administration had no reason for further delay except to avoid political damage to Democratic candidates from attacks by anti-immigration Republicans. Ironically, many political observers think the administration’s calculation backfired by reducing Latino voters’ turnout for Democratic candidates without in any way lessening the anti-Obama sentiment among Republicans and independents.
      The political debate over the policy is quickly moving into the courts. Joe Arpaio, the anti-immigrant sheriff of Maricopa County, Ariz., immediately vowed to sue over the policy; two Tennessee legislators said they would introduce resolutions urging that the state contest the policy in court. House Speaker John Boehner, fresh from filing suit against the administration over the Affordable Care Act, promised that the House would take unspecified action to challenge the immigration policy.
      In a different era, legal observers could confidently predict that the courts would steer clear of what is clearly a political dispute. The regrettable reality these days, however, is that partisan politics have spilled over into the courts. Witness the rulings on same-sex marriage. With one exception, the few federal judges to reject marriage rights for same-sex couples have all been Republican appointees. And GOP-appointed judges have been behind the legal setbacks dealt so far to the Affordable Care Act.
      Beyond releasing the OLC memo, the administration is touting a letter defending the immigration policy signed by 10 constitutional scholars ranging from the Harvard liberal Laurence Tribe to the University of Chicago conservative Eric Posner. The signers acknowledge differences over immigration policy but join in concluding that the “executive actions” announced by Obama are “lawful.”
      The OLC memo answers some of the criticisms of Obama’s move heard before the president’s announcement and since. Executive discretion in granting “deferred action” is well established, the memo says, as long as the status can be withheld on a case-by-case basis. Among five precedents cited is the move by President George H.W. Bush in 1990 to grant deferred-action status to approximately 1.5 million parents and children of aliens granted legal status under the 1986 amnesty approved by Congress and signed by another Republican president, Ronald Reagan.
      Other similar moves since then have granted deferred-action status to victims of domestic violence and human trafficking. Most recently, Obama’s so-called Deferred Action for Childhood Arrivals program (DACA) removed the threat of deportation from the self-styled “Dreamers,” the under-30 immigrants who for the most part have known no other country than the United States.
      The OLC memo discloses that the office gave oral instead of written approval for Obama’s earlier, but the information only underscores the more formal green-light for the latest move. The memo also acknowledges that the latest move benefits more immigrants than any of the similar precedents, but finds the size irrelevant to its validity as long as the policy does not amount to an “abdication” of enforcing immigration laws.
      Obama took to the political hustings immediately to argue and rally support for his policy even as Republicans mounted sharp political attacks. When the litigation begins, judges will face the challenging task of tuning out the politics and focusing only on the law, which strongly supports Obama’s position.

Sunday, November 16, 2014

In Alabama, Still Segregating Voters by Race

      The white political establishment in Tuskegee, Ala., hit on a simple way in the late 1950s to hold on to power despite the city’s growing black population. The state legislature simply redrew the city’s boundary lines into what the Supreme Court later described as “a strangely irregular 28-sided figure.” The new boundaries fenced out all but a few of the 40 0 African Americans who had been living within Tuskegee’s city limits and no white voters.
      The Supreme Court in 1960 had no difficulty in spotting an apparent violation of the political rights of the city’s black population. In a unanimous decision, the court ruled in Gomillon v. Lightfoot that segregating the city’s residents by race violated either the Fifteenth Amendment’s protection of voting rights or (according to one justice) the Fourteenth Amendment’s Equal Protection Clause.
      Drawing legislative districts is more complicated than drawing city limits, and the process is all the more complicated thanks to a series of Supreme Court decisions and congressional enactments beginning in the 1960s. But Alabama’s white political establishment, functioning through the state’s Republican Party, has nevertheless found a way to neuter the political strength of black Alabamians, who comprise about one-fourth of the state’s population.
      With Republicans controlling both houses of the state legislature, GOP lawmakers drew up new district lines after the 2010 census that packed African Americans into districts that already had black majorities. The line-drawing helped ensure that African Americans hold about one-fourth of the seats in both chambers, but it also limited any ability of black voters to form effective coalitions with white Democratic voters in other districts.
      Black legislators and the biracial Democratic Conference challenged the redistricting plan in federal court as a violation of political rights protected either by the Constitution or the federal Voting Rights Act. A divided three-judge court upheld the plan. And in Supreme Court arguments last week [Nov. 12], conservative justices led by Chief Justice John G. Roberts Jr. appeared ready to reward Alabama Republicans with a decision upholding the racial line-drawing as nothing more than partisan redistricting politics as usual.
      Alabama’s Republican solicitor general, Andrew Brasher, told the justices that the plan was aimed at protecting African American voters’ ability to elect candidates of their choice while complying with the Supreme Court’s “one person, one vote” rule for equal-population districts. Liberal justices in particular, Elena Kagan — appeared sympathetic to the plaintiffs’ arguments that the state had adopted an unnecessarily strict standard for equal population so as to reduce rather than protect African Americans’ influence at the polls.
      The seemingly simply “one person, one vote” rule became much more complicated with a series of Supreme Court decisions starting in the 1990s that limit the use of race in drawing district lines. Under the rulings, race cannot be the “predominant” factor in drawing district lines in comparison to race-neutral considerations, such as compactness. At the same time, redistricting must comply with Voting Rights Act requirements to prevent any “retrogression” in minority voters’ ability to elect candidates of their choice.
      Roberts saw the state as facing conflicting demands to add enough black voters to underpopulated districts to preserve their political strength but not so many as to “pack” those districts and limit their influence in others. “They have to hit this sweet spot between those two extremes without taking race predominantly into consideration?” Roberts said in a rhetorical question to the black legislators’ lawyer, New York University law professor Richard Pildes.
      Brasher gladly accepted Roberts’s description of the state’s delicate task and defended its solution under sharp questioning from liberals Kagan and Ruth Bader Ginsburg. Brasher explained that the state had adopted a maximum range of 2 percent deviation between districts’ population. In addition, the redistricting plan avoided any reduction in the black percentages in majority-black districts so as to avoid so-called “retrogression” of minority rights.
      Kagan bluntly described the argument as “a mistaken understanding of what retrogression entails.” Ginsburg echoed the point. “If that’s a misunderstanding of what [the Voting Rights Act] requires,” she said, “then the whole thing is infected by that mistake.”
      Ironically, the default argument for upholding the redistricting plan may be to defend the whole thing as a partisan exercise by Republican legislators to protect the party’s interest at the expense of opposition Democrats. The Supreme Court has ruled, in theory, that political gerrymandering can go too far, but it has never found one that went too far. And two justices, Antonin Scalia and Clarence Thomas, would bar judicial review of partisan line-drawing altogether.
      The justices seemed both divided and uncertain after 70 minutes of argument in the case, Alabama Legislative Black Conference v. Alabama. In a nuanced presentation, Solicitor General Donald Verrilli presented the Obama administration’s position that the case should be sent back for further proceedings to examine the role that race played in regard to individual districts.
      The legal complexities had the effect, however, of obscuring the underlying political realities. Republicans in Alabama and elsewhere in the South are quite happy to segregate voters by race these days. Black voters packed into majority-minority districts elect enough black Democrats to satisfy the Voting Rights Act, but not enough to have political power, and white Democrats are a vanishing species in office. The tactics are more subtle than those of the bad old days, but hardly faithful to the constitutional principle of equal political rights for all.