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9th Circuit Court Of Appeals Upholds Ban On President Trump’s Attempt To Repeal DACA

Summary: In 2017, the Acting Secretary of Homeland Security, Elaine Duke, issued a memorandum rescinding the memo that established DACA and setting forth a plan to phase it out. Recent rulings, however, have upheld the DACA program, creating legal barriers to the Trump Administration’s attempt to end it.

In 2012, the Obama Administration authored an Executive Branch Memorandum more commonly referred to as DACA, which stands for the Deferred Action for Childhood Arrivals. This memorandum was previously entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” and was issued by the then Secretary of Homeland Security, Janet Napolitano. Despite the fact that Congress rejected the program on multiple occasions during the normal legislative process, DACA created a non-congressionally authorized administrative program permitting “certain individuals who came to the United States as juveniles and meet several criteria…to request consideration of deferred action for a period of two years, subject to renewal, and eligibility for work authorization.”  

As outlined in the final version from June 15, 2012, DACA applies to individuals  “if they had come to the U.S. before their 16th birthday; were under age 31; had continuously resided in the United States since June 15, 2007; and were in school, graduated or had obtained a certificate of completion from high school, obtained a General Educational Development (GED) certificate, or were an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.” Applicants are ineligible if they have been convicted of a felony or a significant misdemeanor.

Since its inception, hundreds of thousands of applicants have been granted DACA status. The Migration Policy Institute estimates that there are about 1.3 million people who fall under the criteria for DACA status and about 699,350 people who actually have it. The latter statistic has grown by almost 10,000 people since September 4, 2017, the day Acting Attorney General Jeff Sessions stated that DACA was “an unconstitutional exercise of authority by the Executive Branch.” Under the legal advice of the Attorney General, the Acting Secretary of Homeland Security issued a memorandum rescinding the June 2012 memorandum that established DACA and set forth a plan to phase out the program.

Though President Trump promised his supporters a new immigration plan, he has been faced with several legal complications of late. The most recent of which is the decision by the 9th Circuit Court of Appeals in Regents of the University of California v. DHS (“DACA II”). After considering whether to lift an injunction ordering the federal government to continue the DACA program, the 9th Circuit upheld the temporary order made on January 8, 2018 by Judge William Alsup of the U.S. District Court for the Northern District of California, preventing President Trump from repealing DACA and requiring the U.S. Citizenship and Immigration Services (USCIS) to continue accepting renewal applications for DACA status.

Following the decision, the government took the unusual step of seeking to bypass the review in the 9th Circuit and appeal directly to the U.S. Supreme Court. This legal mechanism is called a “cert. before judgment” and was filed January 18, 2018. This request is granted by the Supreme Court “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” On February 26, 2018, the Supreme Court announced that it had “denied cert.” and the case must begin with the 9th Circuit Court of Appeals.

On November 8, 2018, upon review in the 9th Circuit, it was ruled that the “rescission of DACA—at least as justified on this record—is arbitrary, capricious, or otherwise not in accordance with law.” This ruling was made by a three-judge panel: Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B. Owens. Judge Owens repeatedly questioned whether or not the motive to repeal DACA was racially charged. During litigation, Hashim Mooppan, the Justice Department counsel defending the Trump Administration’s attempt to end DACA, claimed that Trump’s inflammatory statements calling Mexicans “drug dealers, criminals, rapists” had nothing to do with the decision of Acting Secretary of Homeland Security Duke. In response to these claims, Judge Owens stated, “[r]ight, but the Acting Secretary ultimately reports to the President of the United States, and he has said all kinds of things that could be relevant in this litigation.”

Ultimately, the 9th Circuit found that the decision to end DACA was based “solely on a misconceived view of the law.” Affirming that the Executive Branch has power in the enforcement of our nation’s immigration laws, the 9th Circuit justified their ruling by finding: “Our decision today does not curb that power, but rather enables its exercise in a manner that is free from legal misconceptions and is democratically accountable to the public.”

This case is accompanied by two others, creating a trio of cases which challenged the recission of DACA by the Trump Administration. Following the District Court in California’s decision, a U.S. District Court in Brooklyn, New York similarly issued a preliminary injunction on February 13, 2018, requiring the government to accept DACA renewal applications. The government has since appealed the decision to the Second Circuit Court of Appeals. Oral arguments are tentatively scheduled for the week of January 22, 2019. The third case originates in the U.S. District Court for the District of Columbia. On April 24, 2018, Judge John Bates issued his decision that would reinstate DACA as it was before September 5, 2017, when USCIS was accepting first-time applications for DACA rather than just renewal applications.

Further pursuing their goal to end DACA, despite adverse rulings made in the federal courts, the Department of Justice has requested that the Supreme Court review the trio of cases which block President Trump’s plan to end the DACA program. On Monday, November 5, the Department of Justice said: “An immediate grant of certiorari is necessary to obtain an appropriately prompt resolution of this important dispute.” The Trump Administration has worked tirelessly to repeal the progress of the Obama Administration, yet has had little success in its efforts to end DACA. If they want to successfully terminate the program, they will need to take a different approach than their currently unsuccessful one.

Isabella Caracta is a freshman from Piscataway, New Jersey, intending to major in Psychology and Global Health.

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Plyler v. Doe: Undocumented Students and Post-Secondary Education

Summary: Plyler v. Doe lay the groundwork for states to recognize the value of awarding education to every group, regardless of citizenship status. Yet the evolution of education means that over thirty years later, its shortcomings are impossible to ignore.

Perhaps even from its conception, American society has recognized the value of education. Over a decade ago, Chief Justice Warren regarded education as “perhaps the most important function of state and local governments” – a “right which must be made available to all on equal terms.” In a country whose history is fraught with battles for liberty, various marginalized groups – from indigenous peoples to Latinx communities – have struggled to claim this right. And for many, specifically undocumented immigrants, the struggle continues. As immigration and naturalization policies increasingly come to conflict with education, questions of who deserves what and why are brought to the forefront.

Although the struggle for educational rights is far from over, undocumented immigrants have won various legislative battles. In 1973, the Supreme Court in San Antonio Independent School District v. Rodriguez determined that education was not a federally-protected constitutional right. Nine years later, however, in Plyler v. Doe, it both characterized and defined education as a “significant state benefit.” Plyler would prove to be one of the court’s most instrumental decisions regarding what educational benefits would be awarded to undocumented immigrants. By defining education as a “significant state benefit,” Plyler overturned a Texas statute that essentially allowed public schools to deny enrollment to undocumented children. Such a policy, the nation’s high court ruled, contrary to the state’s claims, failed to further a legitimate state interest.

The importance of Plyler goes beyond simply overturning a statue. In addition, Plyler demonstrated that the equal protection clause of the fourteenth amendment also applied to undocumented immigrants – prior to Plyler, the court had only ruled on fourth, fifth, and sixth amendment cases. It cemented the importance of education both individually and societally, holding that such importance warranted legal protection for all persons in the United States, not just citizens. As Justice Brennan wrote in the majority opinion, denying persons education would in effect create “a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor but nevertheless denied the benefits that our society makes available to citizens and lawful residents.” Most importantly, Plyler squarely reaffirmed that enforcing immigration and naturalization laws was a federal duty, not a state one: it banned K-12 educators from making inquiries that “expose immigration status, requiring social security numbers, or engaging in other behaviors designed to expose illegality.

As significant as Plyler may be, it leaves questions of post-secondary education – which can be controversial and legally complex – largely unresolved. Justice Brennan’s argument for education as a “significant state benefit” applied exclusively to K-12 education; in fact, Section 21.031 of Plyler specifies persons “over the age of 5 and under the age of 21 on the first day of September of any scholastic year.” Compulsory attendance, however, only applies to persons up to age 17, meaning that Plyler has left basic education for adults ages 17-21 largely undefined.

The absence of any post-secondary consideration in Plyler means that such issues must be considered separately. Legislature concerning post-secondary education, however, is markedly more restrictive than Plyler, raising concerns for undocumented students seeking educational opportunities. At their best, post-secondary school policies are unclear and misleading. Admissions policies for most state colleges and universities, for example, vary from state to state, and lack uniform guidelines on requirements on proof of legal residency, citizenship, or immigration status. Some schools restrict admission to legal residents altogether, but again, these policies vary from state to state. A survey conducted by the American Association of Collegiate Registrars and Admissions Officers “found that 53.6 percent of responding schools (613 of 2,000 the association’s member institutions) knowingly admit undocumented immigrant students, while many schools do not verify students’ citizenship or immigration status, regardless of institutional or state policies related to admission.” Unclear policies only raise additional barriers for undocumented immigrants, who may already face substantial discrimination or financial struggles both in their everyday lives and in their pursuit of college educations.

Even without unclear admissions policies, the existing legislature regarding post-secondary education poses significant obstacles to undocumented immigrants. While admissions policies are typically simply unclear or confusing, policies concerning financial aid are outright exclusive – which is especially problematic considering that most undocumented students already come from financially-burdened households and are unable to gain lawful employment. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, for example, holds that “unqualified ‘aliens’” are not eligible for any federal public benefit, including post-secondary education. Furthermore, most federal and state-based financial aid require proof of citizenship or permanent legal residence, automatically excluding undocumented students from financial opportunities such as federal student loans, Pell Grants, and work-study allocations.

Not only are undocumented students unable to acquire financial assistance; they are, in many cases, also forced to pay out-of-state tuition, a fact that is again made more troubling by the financial status of many undocumented students. Only two states offer state-funded financial aid for undocumented students, and only ten extend in-state tuition benefits to undocumented students at all. Five states ban undocumented students from receiving in-state benefits altogether. For most undocumented students, the reality is that a post-secondary education from a public institution is unobtainable – if not on administrative grounds, then on financial ones.

If the existing legislature is any indication, significant barriers must still be overcome for undocumented students seeking college educations. For a more accessible education to be realized, the importance of accessible post-secondary education must be recognized first. An argument similar to that offered in Plyler, where education is essential for democratic and societal well-being, could be extended beyond K-12 schooling. For example, for states, an educated populace could result in a larger and potentially more productive workforce. And as labor markets and the necessary skills to enter the workforce evolve, post-secondary educations could become instrumental not only to providing opportunities for undocumented students fleeing poor conditions, but to strengthening state economies.

Nearly forty years ago, Justice Brennan was concerned with restrictions on access to education creating an “underclass.” Today, that concern is amplified more than over. Unable to find legal employment and limited to menial and often exploitative labor, undocumented students perhaps have no choice but to pursue further education. The restrictive and unclear policies utilized in many states designed to bar undocumented students from colleges and universities do not only foreshadow the creation of an underclass: they guarantee it.

It is unlikely that the Supreme Court will reverse its decision to not recognize education as a constitutional right. Similarly, whether or not it will extend the idea that “education is fundamental to maintaining the fabric of our society” to post-secondary education remains to be seen. Until then, one fact remains clear: although post-secondary education may not be a right, the ability to improve one’s life is.

Author Bio: Isadora Toledo is a freshman from Buffalo, New York, planning to pursue a major in public policy and a minor in education.

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Change and Controversy: A Review of Hate Crime Laws in America

Pittsburgh. Kroger. Package bombs. Over the past two weeks, the United States has been recovering from three different attacks. As the perpetrators of each face charges, the question of motivation for these hate-fueled attacks is being brought up across the nation.

For the courts, the question of what constitutes a hate crime is an especially important one. Amid efforts to reform hate crime statutes, the Department of Justice released a new hate crimes website to provide resources for law enforcement agencies. Although the Department has “increased training of federal, state, and local law enforcement officers to ensure that hate crimes are identified and prosecuted to the fullest extent possible,” a report from California State University, San Bernardino, indicates that the number of hate crimes across the nation continues to rise.

These studies only tell half of the story. A majority of hate crimes that were committed between 2011 and 2015 went unreported. Deputy U.S. Attorney General Rod Rosenstein seeks to collect more information on how hate crimes are reported and related arrests, but as lawmakers in Maryland and Kentucky seek to further reform hate crime statutes, the true numbers may be even higher.

Hate Crimes in the United States: A Review

Hate crimes, also referred to as bias-motivated crimes, are acts in which the victim is specifically targeted by the perpetrator due to the victim’s race, religion, disability, sexual orientation, gender, nationality, employment, or political affiliation, although different jurisdictions may include certain groups and not others from their hate crime laws.  The 1969 Hate Crimes Law addresses hate speech targeting one’s “race,  color, religion, [and] national origin,” but only for intimidation from voting, acquiring employment, and other federally-protected activities.  In the federal court system, criminal acts which have an added dimension of hate manifest as penalty-enhancement upon the original criminal act.

However, the relationship between hate speech and free speech rights guaranteed under the First Amendment has been a highly debated one. In Wisconsin v. Mitchell, the Supreme Court concluded that penalty-enhancement based on hate does not violate either the First or  Fourteenth Amendment.

In 2007, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, better known as the Matthew Shepard Act expanded federal protections to include gender, sexual orientation, gender identity, and disability for any violent act. Additionally, the law included acts in which the perceived characteristics of the victim differed from the victim’s actual identity.  Given the increasing amount of attacks on Sikhs, who are often mistaken for Muslims.

In contrast, state laws are much more diverse in the protections that they offer. Forty-five states and the District of Columbia have protections that cover the same biases as the three federal ones, with a majority covering disability, sexual orientation, and gender. Several also cover age, transgender identity, and political affiliation. Five states—Arkansas, Georgia, Indiana, South Carolina, and Wyoming—offer no such protection. (A more detailed survey of state-by-state protections can be found here.)

Twenty-seven states, the District of Columbia, and the federal government also contain laws that mandate data collection on hate crimes. At the federal level, these laws gave this task to the FBI, and in the Campus Hate Crimes Right to Know Act of 1997, universities were required to collect and report data on hate crimes.

Changes to Current Laws

Currently, Kentucky and Maryland are proposing changes to their current hate crime protections. After a thirty-five percent increase in hate-crime reports, Maryland is currently proposing increased hate-crime protections regarding cyberbullying motivated by animus towards one’s faith or race.  Earlier this year, Governor Larry Hogan signed into law new protections that included acts that did not have specific victims, such as the hanging of a noose at Crofton Middle School, located in Anne Arundel County.

In Kentucky, where Gregory A. Bush, a white man, shot and killed two African-Americans at a grocery store on October 24 in Jeffersontown, State Representative Jason Nemes introduced a bill to expand Kentucky’s hate crime laws to include hate-motivated murder. Jeffersontown Mayor Bill Dieruf stated that such crimes “will not be accepted in Jeffersontown,” and that this legislation will affirm this through the state’s laws.

Indiana, where the Congregation Shaarey Tefilla Synagogue in Carmel was vandalized with anti-Semitic and Nazi graffiti, remains one of the five states that lack hate crime protection. Despite calls from Indiana Governor Eric Holcomb to “be clear that our state stands with the victims,” partisan disagreement over who should be protected has largely halted these efforts, especially the debate over LGBT protections.

Although many oppose such legislation due to a 2003 state court ruling that allowed state prosecutors to factor hate and bias into their sentencing, the nationwide increase in hate crimes suggests that this problem may need more attention outside of the courts as well. In Indiana, many law enforcement organizations do not submit hate crime data, so the 78 hate crimes reported in 2017 is likely underestimating the true number.

As many hate crimes continue to go unreported, we are only discovering how much we do not know about hate crimes in America. With increased protections and data collection becoming more common because of these laws, the growing attention and focus on hate crimes continue to shed new light on crimes motivated by hate and bias. Given the historic marginalization faced by the groups facing hate crimes, these laws have an important place in the American legal system, now more than ever.

Thomas Huck is a freshman in Trinity College from Berwyn, Pennsylvania, and is planning to pursue majors in Political Science and Economics.

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The Supreme Court’s Ability to Enforce Rulings

Summary: The Supreme Court’s move to the right has raised questions of the Court’s ability to enforce its rulings. 

To many Americans, the confirmation of Justice Brett Kavanaugh marked the Supreme Court’s move to the ideological right. The country is wondering how this will affect rulings on landmark issues such as abortion, religious liberty, the rights of the LGBTQ community, and more. Americans have long looked at the Supreme Court as an authority to protect the people from unconstitutional executive actions, laws, and statutes. It is often seen as the last line of defense to protect civil liberties.

However, the Constitution does not establish a basis for the court to enforce its decisions. In early American history, the Court’s role in government was unknown. The Constitution, in Article III: sections one and two, establishes the Supreme Court as the highest court in the land. It was not until 1803, that the Supreme Court established its authority in Marbury v. Madison (1803). The Supreme Court, unanimously, ruled that it had the power to strike down laws, statutes, and government actions if they were found to be unconstitutional. This move was unprecedented. The Court’s power was being derived from their own ruling and not from any specific part of the Constitution.

The source of the Supreme Court’s power raises questions of the legitimacy of the Court and its rulings. In 1831 and 1832, the Supreme Court heard two cases involving the Cherokee Nation and the State of Georgia. In Cherokee Nation v. Georgia (1831), the court ruled that it was incapable of hearing the case due to issues of standing. They cited the issue of jurisdiction and an inability to classify the Cherokee Nation as a foreign nation or as a people within the United States. They did not deliver a formal ruling but acknowledged that the Cherokee had faced oppression and persecution by the Georgian citizens. The second case, Worcester v. Georgia (1832), dealt with the Constitutional ability of Georgia to convict Samuel Austin Worcester of the Cherokee Nation. The Court ruled that Georgia did not have the authority under the Constitution to convict Samuel Worcester. Ultimately, Georgia and President Andrew Jackson defied the court’s rulings and continued to forcibly remove the Cherokee from the Georgian territories. This is an early instance of the Supreme Court lacking a Constitutional mechanism to enforce its decisions or have its authority recognized.

In 1954, the Supreme Court heard the case Brown v. Board of Education of Topeka (1954). This case dealt with the segregation of schools and represented a consolidation of cases from Kansas, Delaware, South Carolina, Virginia, and Washington D.C. The court reversed the ruling in Plessy v. Ferguson (1896) that established “separate but equal” doctrine. They ruled that separate facilities violated the Equal Protection Clause of the 14th amendment. The Court issued that schools should be desegregated “with all deliberate speed.” The Court had no way to enforce their decision and the ruling was blatantly defied by multiple authorities within state governments. For example, in 1957, Governor Faubus of Arkansas sent in the Arkansas National Guard to prevent the “Little Rock Nine”, nine black children, from attending and integrating Little Rock Central High School. After this initial failed attempt to enter the school, it was left to President Eisenhower to secure the students’ entrance into the school and enforce the Supreme Court’s ruling. There were many southern governors and powerful local and city officials that scoffed at the Court’s ruling that challenged racist legislation.

Another instance shedding light on the Court’s lack of enforcement mechanism is Roe v. Wade (1973). Since the ruling, many states have placed restrictions on abortion. In 2016, Whole Women’s Health v. Hellerstedt (2016) was brought to the Supreme Court. In this case, Texas had placed certain requirements for abortion clinics to stay operable. This prompted the closing of dozens of abortion clinics and the Supreme Court ruled violated Roe v. Wade (1973). Despite long-standing precedence from 43 years ago, Texas defied and circumvented the court’s landmark ruling. This ruling set precedence for many abortion cases brought forth since 1973. The Court’s inability to ensure enforcement allows those rulings to be repeatedly challenged and ignored. It is clear, however, that the court has no mechanisms that allow it to force adherence to their decisions.

The Legislative and Executive Branches’ duties are to either create or execute the law in accordance with the Constitution. The Supreme Court is to interpret the Constitution and to ensure laws are in compliance with this governing document. The Legislative Branch has language in the Constitution granting Congress the power to enforce the laws that they draft. For example, in the 13th amendment section two, the Constitution states that “Congress shall have the power to enforce this article by appropriate legislation.” The executive branch has a vast number of agencies and departments that are tasked with enforcing the laws and statutes of Congress and executive orders issued by the President. The Supreme Court lacks an enforcement mechanism which challenges its authority.

As Justice Kavanaugh takes the bench, many Americans, particularly those on the left, will be faced with a Court more to the right than before. After a controversial hearing process and a close confirmation vote, some Americans may want to possibly defy the Court’s decisions on certain landmark issues. We should not be surprised to see certain states, such as New York and California, challenge rulings and possibly force a larger debate on the Court’s authority and relevance.

 

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Swartz v. Rodriguez: A Question of Qualified Immunity

Summary: U.S. government officials sometimes must make discretionary decisions in split-seconds with only limited information. To protect these officials from personal, civil lawsuits, the idea of qualified immunity was born. However, questions are raised when a discretionary decision kills someone who is not a citizen and it occurs outside of US territory. These are the questions that Swartz v. Rodriguez seeks to answer.

Background

In October 2012, Lonnie Swartz, a U.S. border patrol agent, shot and killed 16-year-old Mexican national Jose Antonio Elena Rodriguez. He was shot approximately 10 times through the border fence that separated the United States and Mexico, all entering the body from behind. Agent Swartz was standing within the United States during the shooting and Mr. Rodriguez was wholly in Mexico. Swartz claimed that the deceased, referenced as J.A. in court documents, threw rocks at him; however, the First Amended Complaint submitted to the courts claim that J.A. had not thrown rocks nor committed any crimes. J.A.’s mother, Araceli Rodriguez sued Lonnie Swartz for money damages, claiming that Swartz violated her son’s Fourth and Fifth Amendment rights.

In the United States, government officials taking discretionary actions may be entitled to qualified immunity, the protection of being personally sued for monetary damages. This idea allows for the officials to be free from harassment or the idea of possible lawsuits while conducting their jobs. Qualified immunity does not prohibit criminal prosecutions or from victims to sue the government in whole, but rather protects individual officials from civil lawsuits. Lonnie Swartz, should qualified immunity apply, would gain immunity to the Rodriguez lawsuit for monetary damages.

The Ninth Circuit Court decided to rule in favor of Rodriguez on the grounds that, despite no Congressionally mandated method to resolve the case, “no other adequate remedy is available.” The Circuit Court extended the decision in Bivens v. Six Unknown Fed. Narcotics Agents, a decision that allows for citizens to sue government officials, but a decision which the Court has been hesitant to extend. Swartz has since appealed the decision to the Supreme Court raising key questions. The first is whether the extension of Bivens and creating implied remedies under Bivens in the context of national security and foreign relations is appropriate. The second is whether the Fourth Amendment applies to a Mexican citizen with no connection to the United States.

Precedence

There are four cases whose basis could give insight into how the Court, should they choose to hear Swartz, may be decided. The first case is Bivens v. Six Unknown Fed. Narcotics Agents as decided in 1971. The Bivens decision allowed for government officials acting in discretionary ways to be sued for monetary compensation if the officials violated the petitioner’s constitutional rights. The Court ruled that the relationship between a private individual and a federal agent was different than that between two private individuals. They continued that, should the power dynamic between a federal agent and a private individual cause violation of constitutional rights, it becomes the job of the judiciary to resolve such injustices. In recent years, however, the Court has been reluctant to extend the Bivens decision beyond two other cases: Davis v. Passman (1979) on the grounds of Fifth Amendment violations, and Carlson v. Green (1980) on the grounds of Eighth Amendment violations. Since the Court’s decision in Ziglar v. Abbasi (2017), it is unlikely that the Court will expand the areas of violations for Bivens to apply, as Abbasi clarified that Bivens would not apply under special conditions.

The second precedent established the parameters for when qualified immunity could apply. In Harlow v. Fitzgerald (1982), the Court decided that qualified immunity protects government officials from “liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The standard, reiterated in Saucier v. Katz (2001) and Pearson v. Callahan (2009), states that if either the condition that there is no constitutional question or the condition that the right is not clearly established for a reasonable person is met, then the government official is entitled to qualified immunity.

In Tennessee v. Garner (1985), the Court ruled that a Tennessee statute allowing the use of deadly force to apprehend fleeing suspected felons was unconstitutional. The decision classified the use of force on fleeing suspects as a form of “seizure”, and the allowance for the use of deadly force by the Tennessee statute constitutes an unreasonable seizure, thereby violating the Fourth Amendment. The Court decided that deadly force on an apparently unarmed, escaping suspect may not be used unless the officer believes that the suspect poses a significant threat of death or serious physical injury to the officer or others.

The most recent and most relevant case is that of Hernandez v. Mesa, decided in 2017. In the case, U.S. Border Patrol agent Jesus Mesa, Jr., while on U.S. soil, shot and killed Mexican national Sergio Adrián Hernández Güereca while the latter was on Mexican soil. The petitioner similarly filed claims that Hernandez’s Fourth and Fifth Amendment rights were violated. The Court did not rule on the grounds of Fourth Amendment claims, stating that the ruling could have consequences that are far-reaching, and with guidance provided in Abbasi, the Court did not need to decide the Fourth Amendment question. To answer the Fifth Amendment question, the Court argued that because the nationality and possible ties of Hernandez was unknown to Mesa at the time of the shooting, Mesa did not violate any clearly established rights Hernandez may have. Furthermore, the Court clarified the Fifth Circuit’s decision to grant qualified immunity based on information of Hernandez’s affiliations gathered post hoc. The Court said that any information gathered post hoc can have no bearing on whether qualified immunity is awarded to the government official.

Decisions and Implications

Araceli Rodriguez makes two claims against Swartz. First, the agent violated her son’s Fourth Amendment rights, and second, the agent violated her son’s Fifth Amendment rights. Both of these violations have already been established by precedence to be the reason for the extension of Bivens. The question then becomes whether Swartz is protected from the lawsuit under qualified immunity.

To be protected by qualified immunity, the actions of Swartz must “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Thus, the question is twofold: are the Fourth and Fifth Amendment violation claims valid? And is Swartz liable for either or both of them?

Swartz and Hernandez are almost identical in the fact pattern, save one important distinction. In Hernandez, the victim had been illegally crossing over to the United States soil and whose friend had been apprehended by Mesa. In Swartz, Rodriguez had not provoked the agent and was shot while walking home. Whether this difference is significant enough in the eyes of the Court to uphold Swartz but not Hernandez is unlikely. The distinction is not necessary for addressing the Fifth Amendment violation allegations. Just as in Hernandez, the agent in Swartz was not aware of the nationality or potential ties of Rodriguez, and therefore the right is not clearly established; Swartz has qualified immunity from the Fifth Amendment violations.

The more interesting question is whether Swartz violated a clearly established Fourth Amendment right of Rodriguez. The Ninth Circuit Court reasoned that first, no reasonable person in Swartz’s position would shoot down Rodriguez and that because there are no other ways to remedy this wrong, the Court must extend Bivens, an implied remedy for such cases to hold the government accountable. The answer to the first reasoning by the Circuit Court could have a broad scope of implications on national security, drone surveillance, and many other U.S. operations in foreign territories. To say that Swartz does not have qualified immunity in regards to the Fourth Amendment question would be to imply that there is a clearly established Fourth Amendment right to individuals who are not known to be citizens on foreign soil. This is the similar question asked in Hernandez on the Fourth Amendment. The Court may once again try to avoid this question; however, the facts of the case could push the Court to consider the lack of accountability for U.S. agents acting in ways that would not be acceptable if the victim were a U.S. citizen. Nonetheless, the Court has decided that the powers of the Constitution only extends until the physical limits of the United States (save for the exceptions granted in Boumediene v. Bush (2008)). With such a precedent, the Court, if issuing a decision on the Fourth Amendment question, may likely side with Swartz.

Because of the Court’s reluctance to extend Bivens, they may either not answer the question of whether the decision implies that it is a way to hold government officials accountable, or they may choose to reject such an interpretation. Whether the Court affirms or negates the Ninth Circuit’s interpretation, the implications are wide-ranging. If the Court affirms, then there may be worry from officials that their actions could lead to personal lawsuits and may stop officials from making the correct decisions in fear of the legal problems that may ensue. If the Court negates, then save the most egregiously obvious cases of incompetence or maliciousness, government officials could expect that they will be protected from lawsuits.

In summary, the likely decision by the Court will be to reverse the decision of the Ninth Circuit Court and avoid the questions on the Fourth Amendment, by following a similar logic to the Court’s in the Hernandez ruling. To do so, the Court may reverse the Ninth Circuit’s interpretation that Bivens implied a pathway to hold government officials accountable, along the lines of reasoning that the Court should not dictate legislation and that Congress will remedy such accountability issues through legislation if need be.

Mochen Ma is a sophomore in Trinity College at Duke University majoring in Political Science and Mathematics.

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The Right to Refuse Service and Its Implications on Society

Summary: A business owner has the right to refuse service as long as he or she does not infringe upon federal or state discrimination laws.

Background

Across the nation, businesses display and enforce their right to refuse service. Whether a customer is causing a nuisance or is dressed inappropriately, the business could withhold its services without legal repercussions. Many businesses make their right clear by posting signs with phrases like “We Reserve the Right to Refuse Service to Anyone.” While this statement does hold true in many cases, it depends on the reasoning behind refusing service. The Constitution, federal laws, and state laws protect certain groups of people from discrimination on the basis of being a member of that group in public accommodations, but not all groups are protected.

What Constitutes Illegal Discrimination

Since the Civil Rights Act of 1964, businesses cannot discriminate against any person on the basis of their race, sex, religion, color, or nationality. If a business breaks this rule, it can face legal consequences at the state and federal level.

After the act was signed into law, not all private businesses complied. The Heart of Atlanta Hotel refused to adapt and stop its discriminatory practices. The Georgia hotel continued to refuse black patrons. The hotel owner filed a lawsuit against the federal government, stating that it overstepped its constitutional authority. Eventually, the Supreme Court took the case and they ruled in the landmark decision Heart of Atlanta, Inc. v. United States that Title II of the Civil Rights Act was constitutional under the Commerce Clause. Therefore, Congress has the full authority to enforce anti-discrimination laws onto private businesses in all states.

In 1990, the Americans With Disabilities Act made discrimination against the disabled illegal at the federal level. States were mandated to comply with the act. This added disability to the list of protected categories that business owners could not use as reasoning to refuse service to a customer.

When a Business Can Refuse Service

If a private business wants to refuse service they must also be in compliance with state law. Different states have different laws regarding discrimination in public accommodations. For example, the laws in regards to discrimination vary greatly from New Jersey to Nevada. Under the New Jersey Law Against Discrimination, a business owner cannot discriminate against a potential customer due to marital and partnership status. On the other hand, Nevada does not include this under the Nevada Equal Rights Commission, which could allow a business owner in Nevada to legally discriminate against a customer’s relationship status.

Discrimination laws can vary greatly across the United States. In June 2018, White House Press Secretary Sarah Sanders was turned away when trying to dine at the Red Hen restaurant in Lexington, VA. Sanders was turned away by the restaurant due to her political affiliation with the current presidential administration. The Virginia Human Rights Act does not protect consumers from political affiliation discrimination. Therefore, the restaurant did not break any federal or state law when refusing to serve Sanders. Contrastingly, if a restaurant located in the District of Columbia were to deny Sander’s entry due to her political affiliation, the restaurant could face a civil rights lawsuit. The discrimination of political-affiliation is specifically forbidden in the DC Human Rights Act of 1977.

Discriminating Against Sexual Orientation

When Colorado resident and Masterpiece Cakeshop owner Jack Phillips refused to bake a wedding cake for a gay couple in July of 2012, the state ruled that his actions discriminated against sexual-orientation and that Phillips could not refuse service on the grounds of freedom of speech nor free exercise of religion. While Colorado has such a law that protects discrimination based off of sexual orientation, the federal government does not. Later in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court overturned the case, with Justice Anthony Kennedy citing that the state violated the First Amendment’s Free Exercise Clause. Focusing on the specific case and not the broader issues of discrimination in regards to sexual orientation, the court found a way around setting a judicial precedent on the matter.

In 2015, Barronelle Stutzman, owner of Arlene’s Flowers in Richland, WA, refused service to a gay couple citing that her religious beliefs prevented her from doing so. The State Supreme Court of Washington unanimously ruled against Stutzman, leading her to file a petition to the Supreme Court of the United States. The Supreme court later remanded the case back to the state since they had previously ruled on the Masterpiece Cakeshop case.

In twenty-two states, there is specific legislation that protects against discrimination on sexual orientation. The other twenty-eight states do not have this legislation, resulting in states where a business could turn down a customer on the basis of sexual orientation. The Supreme Court’s inability in establishing a ruling that states the legal relationship between religion and discrimination against sexuality leads to confusion in the courts and a country where LGBTQ individuals can be refused services solely depending on their physical location. Eventually, the court will be forced into making a decision as more and more controversial cases on the matter come to light.

Jacob Turobiner is a freshman from Calabasas, California, intending to major in Political Science.

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California Bail Reform Leaves Both Sides Unhappy

Summary: California’s new bail reform bill, Senate Bill 10, goes into effect October 2019, but activist groups pull support for SB10.

It is a little-known fact that the American constitution fails to guarantee its citizens the right to bail; however, the Eighth Amendment prohibits excessive bail charges. The Bail Reform Act of 1966 affords people charged with non-capital offenses a statutory right to be released, pending trial, based on personal recognizance or personal bond. This act provided people with a statutory right where a constitutional right is lacking.

Contrarily, bail systems vary from state to state and can be highly discriminatory against certain racial and socioeconomic groups (particularly African American and Latino minorities). Judges are afforded great discretion as to when a defendant is detained, whether or not bail will be set, and the price of bail. Because inherent prejudices can arise from the current bail systems, there has been a resurgence of activism promoting bail reform.

In California Governor Edmund G. Brown Jr’s 1979 State address, he stated: “Thousands and thousands of people languish in the jails of this state even though they have been convicted of no crime. Their only crime is that they cannot make the bail that our present law requires.” The legislature took no action.

Organizations such as the American Civil Liberties Union (ACLU), Color of Change, and JustLeadership USA have fought for years in hopes of seeing a tangible difference in US Legislation on bail systems. In recent events, California has followed the lead of its predecessors, New Jersey and Alaska, in taking a step towards a new bail system.

Upon review of Kenneth Humphrey’s petition, the California Appellate Court found the state’s current bail system to be unconstitutional and began to take real action. On August 28th, 2018, California Governor Jerry Brown signed Senate Bill No. 10, the California Money Bill Act. Going into effect in October 2019, Senate Bill No. 10 will make California the first state to eliminate cash bail and replace it with a “risk assessment” and nonmonetary conditions of release. The bill also institutes Pretrial Assessment Services, which the bill defines as “an entity, division, or program that is assigned the responsibility to assess the risk level of persons charged with the commission of a crime, report the results of the risk determination to the court, and make recommendations for conditions of release of individuals pending adjudication of their criminal case.”

While the bill attempts to standardize the way in which defendants are detained or released pretrial, there are some important attributes that call into question how effective it will be in reducing discrimination in the bail sector of the criminal justice system.

The bill provides the prosecution with the ability to file a motion for a “preventative detention hearing,” which would “authorize the court to detain the defendant pending a preventive detention hearing.” This would greatly increase the amount of time a defendant would have to wait in jail. Organizations, such as the ACLU, who supported the original bill in 2016, now directly oppose it. In a statement released by the Executive Directors of the California ACLU Affiliates, they oppose the Senate Bill No. 10 because “it seeks to replace the current deeply-flawed system with an overly broad presumption of preventative detention. This falls short of critical bail reform goals and compromises our fundamental values of due process and racial justice.”

Though the bill moved out of the chamber with a 47-21 vote, some Democrats expressed dissatisfaction with changes in Senate Bill No. 10. They ultimately voted in favor of it because they said it was better than nothing. Democratic Assemblyman David Chiu said: “This might not go as far as people may want…But we need to do something.”

Although there is no empirical evidence on the efficacy of Senate Bill No. 10 as it comes into effect October 2019, New Jersey has had a successful year and a half with its new bail system. The New Jersey bail reform has been in effect since January 1, 2017. It shifts away from a monetary bail system to one that utilizes a risk assessment algorithm to determine the likelihood a defendant returns to court or is a harm to themselves or the community. It also ensures that if a person is held in jail pretrial, the trial will occur within a given time and does not exceed two years. By codifying a person’s right to a speedy trial, this bill will likely reduce the amount of unnecessary time a defendant sits in jail prior to trial. Ultimately, this new system reduces the inherent human bias that previously disadvantaged people who are targeted for racial and socioeconomic bias.

After its one year anniversary, New Jersey’s state judiciary reported on the achievement of its new bail system, successfully “slash[ing] the number of people charged with minor crimes locked up until trial because they couldn’t post bail by 20 percent.” Hopefully, California will be able to follow New Jersey’s lead, initiating a wave of positive reform in the United States.

Isabella Caracta is a freshman from Piscataway, New Jersey intending to major in Psychology and Global Health.

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Indefinite Solitary Confinement Ruled Unconstitutional in British Columbia

Summary: The Supreme Court of BC has classified indefinite solitary confinement as a form of torture and a breach of Canadian prisoners’ rights.

On January 17, 2018, the Supreme Court of British Columbia ruled Canadian prisons’ use of indefinite solitary confinement unconstitutional. The court ruled that the practice of allowing the wardens to place an unjustified expiration date on prisoners’ time in solitary was equivalent to torture and placed them at an increased risk of self-harm and suicide. Justice Peter Leask wrote in his decision that this indefinite administrative segregation violated the rights afforded to prisoners under Section 7 of the Charter of Rights and Freedoms, specifically the right to not be deprived of the security of life and the person protected by this section. While this section does clarify that these rights are subject to seizure in accordance with the principles of fundamental justice, Leask did not believe that this practice was necessary to carry out proper justice. He based this decision on the belief that indefinite administrative segregation does not succeed in preparing inmates to be returned to society and, instead, produces more violent and damaged inmates. Leask also feared that the practice was being used to discriminate against the “mentally ill, disabled, and First Nations.”

This case was brought before the Court by the B.C. Civil Liberties Association and the John Howard Society of Canada. Mirroring a similar ruling in Ontario, the ruling caught the attention of the Public Safety Minister, Ralph Goodale, who has helped introduce a bill before Parliament that intends to place limits on how long inmates can be placed in solitary confinement. The ruling comes on the heels of multiple tragic deaths of inmates as a result of the administrative segregation program. One inmate, Edward Snowshoe, took his own life after spending five months in solitary at two different institutions.

The topic of solitary confinement has become highly politicized in the push for prison reform. The United Nations has even become involved. In 2011, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment claimed that any form of solitary confinement of the mentally ill and any solitary confinement lasting longer than 15 days is to be considered a form of torture in their eyes. However, as the Convention currently stands, countries face no consequences of ignoring this decision other than receiving a condemnation from the UN, which will do little to incentivize any further action on the topic, considering that over 25 of current members of the UN engage in some form of solitary confinement longer than 15 days.

The Minister of Justice, Jody Wilson-Raybould, opposed the BC ruling, claiming that administrative segregation was not torturous or as bad as it has been made out to be since inmates placed under administrative segregation have “daily opportunity for meaningful human contact,” as opposed to disciplinary segregation, which has very little human interaction and is capped at a maximum of 30 days. In response to the ruling, the Minister of Justice asked for a twelve-month suspension before the practice could be ruled illegal in order to allow for the government to prepare the proper legislation to make the necessary changes.

Hunter Snowden is a junior majoring in Political Science and Philosophy from Dallas, Texas.

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France: Safe State or Police State?

Summary: France introduces new controversial terrorism bill but faces large resistance from European Union and human rights organizations.

On November 1st, French President Emmanuel Macron signed into law a controversial anti-terrorism bill that would make permanent some of the conditions that were enacted under the state of emergency declared by President François Hollande in 2015. The new bill allows police to search property, conduct interrogations, and make arrests, all without a warrant, should the police believe the suspects to be of a threat to national security. Prior to the declaration of the the state of emergency, such acts would have required approval from a judge.

Concerns have been raised by humans rights group from within and outside France. The groups are worried that the vague language of the bill — that allows law enforcement to close mosques that they accuse of preaching hate — will be used to discriminate against the Muslim people of France. Fionnuala Ní Aoláin, the United Nations special rapporteur on the protection of human rights while countering terrorism, said on September 22nd that the legislation offered only “vague definitions of terrorism and threats to national security” and exacerbated “concerns that the powers may be used in an arbitrary manner.” She is also worried that the bill removes judicial oversight of these programs, leaving them to do as they see fit. French political scientist, Patrick Weil, is most concerned about what the bill allows to be classified as probable cause. The vague language of “threat” has allowed police to classify a person’s immigrant status as enough to justify a stop-and-frisk type search.

This debate of security versus civil liberties always resurfaces during times of terrorism. The same discussion could be seen in Britain during the bombings carried out by the IRA and, most notably, in George Bush’s creation of the Patriot Act in the United States. The question focuses around whether the concession of certain liberties such as the right to due process is worth the criminals who may be caught by the tighter restrictions. Of the 3,600 raids conducted as of October 3rd, only eleven resulted in criminal proceedings. But is that the mark of an inefficient system or is it instead eleven more potential Nice or Paris attacks that are prevented?

The issue of security versus civil liberties seems to be an almost paradoxical one. Laws providing extraordinary power to government agencies in the name of security are often designed to protect the exact civil liberties they end up infringing. When a stop-and-frisk law is implemented, one of the original justifications is to protect people’s right to feel safe outside their homes. But this fails when people are now afraid to leave their homes due to fear they may discriminated against and harassed by the enforcement of this law. In the case of France, the police are now allowed to search people’s house without due process so everyone else can feel safe in their house. But if a person’s house could be raided by the police any time just based on suspicion, then people are not really safe in their houses anyway. If police can shut down places of worship so that other religions can feel safe practicing their right to freedom of religion, then freedom of religion does not really exist. Tom Mockaitis, a professor at DePaul University specializing in international security and counter-terrorism, pointed out that “freedom entails risk. North Korea has suffered no terrorist attacks, but no one wants to live there. Western Europe and the United States have been struck repeatedly, but they remain the destinations of choice for those fleeing oppression or seeking opportunity.” Somewhere in this debate, there is a happy medium that prevents terrorist attacks on innocent people but does not instill the same fear that the terrorists were attempting to do in the first place anyway.

As Europe continues to face an unprecedented rise in terrorism, conflicts between national attempts to combat these threats and the rules of the European Union are beginning to reach a boiling point. On November 7th, the European Court of Human Rights began hearing a UK surveillance case where eleven different human rights organizations claimed that the British government’s mass collection of civilian data in the name of security was an infringement of their right to privacy afforded to them as members of the European Union. Considering how vocal Macron has been about revisiting the terms and conditions of France’s role in the European Union, maybe the conflict over the implementation of these types of laws will be the final straw that initiates “Frexit.”

Hunter Snowden is a junior majoring in Political Science and Philosophy from Dallas, Texas.

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Catalonia: Civil War or Legal Secession?

Summary: Catalonia is looking at the best opportunity for secession it has ever had but the Spanish government has deemed it unconstitutional.

On October 1, 2017, Catalans stared down armed national police and tear gas to take their first proper steps towards independence from Spain. Meeting large resistance from the federal government in Madrid, Catalonia held a referendum vote to decide whether or not they would remain part of Spain. Despite 90% of the votes cast being in favor of independence, the Spanish Prime Minister went on national TV later in the day to say that “no official referendum had been held” and that any attempt at a referendum was unconstitutional. Are the people of Catalan actually engaging in an act of state-sponsored resistance? If they are not, is this another piece of the plan of the Spanish government to hold onto a part of their country that constitutes over 20% of their national GDP?

To evaluate the legality of this move and the legal ramifications of it, one must first reflect on how the recent talks of independence began. When Spain transitioned from a monarchy to a democracy in 1978, its constitution established seventeen autonomous communities that self-govern. While still a unified state, Spain has decentralized certain national powers to the autonomous communities, the rights of which are outlined in the Statutes of Autonomy. In 2010, a large portion of the 2006 Statute of Autonomy of Catalonia, the statute that defined Catalonia as a ‘nation’ within Spain and provided the Generalitat of Catalonia with a stronger form of self-governance, was ruled unconstitutional by the Spanish High Court of Justice. The language of the High Court’s amendments greatly restricted the power of self-governance that the Spanish and Catalan government agreed upon; one of the most influential changes being that the High Court believed the Statue’s declaration of Catalonia as a ‘nation’ carried no legal value under the Spanish Constitution’s article that states the unity of the Spanish nation is indissoluble. In response, the Catalan population moved from calling for more autonomy to full independence. Over the next six years, Catalonia would hold four referendums to gauge interest in leaving Spain, each time showing an increase in support for the pro-secession side.  

Catalan independence has also created challenges for the European Union. Calls for their intervention in the Spanish government’s attempt to prevent the referendum vote have been made on the basis that their arrest of democratically elected officials, banning of political meetings, and raiding of private printing and mail services is a direct violation of the civil rights and freedoms of assembly, speech, and information outlined in the European Charter of Fundamental Rights. If the European Commission finds Spain guilty of these allegations, then Spain could face sanctions that could cripple their economy should Catalonia also gain its independence. The economy of Catalonia currently comprises 20% of Spain’s GDP but the abolishment of Spanish tax law within the region and full rollout of exclusively Catalan tax law would result in a €16 billion yearly increase for the region since Catalan money would no longer be going to the Spanish government. The European Union currently has no legal literature dictating who becomes responsible for a state’s debt in the case of secession so, considering the Spanish government is not willing to negotiate and the fact that there are no laws dictating the allocation of this debt either, it looks like the remainder of Spain may have to take on the entirety of the debt, something its debt-to-GDP ratio proves the Spanish economy would not survive. EU law requires a unanimous vote among its members to induct Catalonia into the Union itself, so accepting their portion of the debt may be Catalonia’s only way to win favor with Spain and its allies come time for such a vote.

The referendum of October 1st does not constitute actual independence in itself. And an official declaration of independence has to be voted upon by the Catalan government (which said they would do this within 48 hours of receiving a majority “yes” vote on the referendum). In response to the refusal of the Catalan president to back down, Prime Minister Mariano Rajoyhas called for the activation of Article 155 of Spain’s Constitution, an article that allows for the Spanish government to revoke all of Catalonia’s autonomy. Article 155, largely based on a similar Article in the constitution of then West Germany, allows the Spanish government to take control of one of the countries autonomous regions should it “fail to fulfill the obligations imposed upon it by the Constitution or other laws, or acts in a way seriously prejudicing the general interests of Spain.” The language of this article, which has never seen use in the forty years since the fall of Francis Franco, is vague at best and unenforceable at worst. The issue with the Spanish government’s potential use of this Article is that it requires them to outline instructions for how the seized region can return to autonomy. But considering the broad language of the Article and the refusal of the Catalan people to comply even in the face of potential civil war, it appears any plan recommended by the national government would fall on deaf ears and only be seen as further attempts to undermine their autonomy. Spain has no precedent for this type of case, especially on a constitutional scale. If the Catalan president continues to refuse to comply, the Spanish government has not been shy in saying that it will implement martial law in the region should it come to that.

Neither side seems to be budging. Should war break out, the situation could pose an interesting dilemma for the United States. The United States would have to choose between honoring its alliance with the Spanish government by coming to their aide in the suppression of Catalonia and supporting Catalonia in an attempt to further their stance as the global upholder of international democracy. This choice would only be made harder if either the United Nations or the European Union finds Spain guilty of human rights violations. The coming months could shape Spanish, Catalan, EU, and international law as the world potentially prepares to see its first new country since the creation of South Sudan in 2011. Should Catalonia prove successful, other regions in Spain and abroad may begin to follow suit.

 

Hunter Snowden is a Trinity junior majoring in Philosophy and Political Science from Dallas, Texas.