ICYMI:“Preventing Supreme Chaos: It’s Up To The Chief”

2016-04-08 SCOTUS

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David Leopold, an immigration attorney and former president of the American Immigration Lawyers Association, has published his latest in a series of must-read assessments of the key questions, considerations, and implications of the U.S. v Texas immigration executive action case, to be heard before the U.S. Supreme Court on April 18.

After predicting that the Republican plaintiffs’ case will be dismissed on standing, Leopold’s new analysis on Medium, “Preventing Supreme Chaos: It’s Up To The Chief,” explores the potential consequences and chaos that would result from a 4-4 split in the Supreme Court.

Read David Leopold’s new Medium piece, “Preventing Supreme Chaos: It’s Up To The Chief,” below or online here:

“Given that the Republican plaintiffs fail to demonstrate standing, the U.S. Supreme Court should dismiss the overtly political lawsuit brought by Republican leaders from Texas and 25 other states when it hears the United States v Texas immigration executive action case on April 18. While remaining confident that the Republican challengers will fail on standing (and would fail on the merits of the case, as well), it is worth exploring the potential consequences and chaos that would result from an alternate scenario.

A 4–4 split in U.S. v Texas, for example, would result in three levels of profound chaos ensuing. A 4–4 split on the Supreme Court would: provide a green light to Republican-controlled states — not the federal government — to determine the nation’s immigration enforcement policy — contradicting the Court’s major precedent in the process; open the door to a myriad of politically-charged lawsuits that states would be newly empowered to bring against sitting presidents; and raise questions about whether the injunction placed on the deportation deferral guidance, known as DAPA and DACA+, should continue to apply across country, ultimately leading to a patchwork of confusing immigration enforcement regimes in different states and regions of the U.S.

Since the death of the late Justice Antonin Scalia — and the refusal of Senate Republicans to even consider hearings for his replacement — there’s been a lot of discussion about what the vacancy holds for key cases before the Court. Thus far, the Court has evenly split among the justices 4–4 on two cases, leaving the decision of the lower court intact in Freidrichs v. California Teachers Association, by simply stating, “The judgment is affirmed by an equally divided Court.”

Justice Elena Kagan spoke recently at the New York University Law School about the situation of the Supreme Court in the aftermath of Justice Scalia’s sudden death. According to a report in the New York Times, Kagan said she and her colleagues “were committed to issuing decisions in as many of those cases as possible.” The justice spoke highly of the efforts of Chief Justice Roberts, saying, “I give great credit to the chief justice, who I think in general is a person who is concerned about consensus building, and I think all the more so now,” Kagan said. “He’s conveyed that in both his words and his deeds.”

On April 18, the Supreme Court will provide another test for Chief Justice Roberts and the associate justices when they hear arguments in United States v. Texas. If Chief Justice Roberts stands by his long-held rigorous views on standing, the case should be dismissed, because it asks the Court to weigh in on a political dispute, not a legal claim.

Frankly, if there ever was a political question before the Court, it’s this case, as numerous legal analysts and law professors have pointed out. But, if the Court evenly divides 4–4 among the eight sitting justices, the decision of the lower courts will remain in place — as it did in the Friedrichs case — with a profound impact on the nation.

One can imagine three levels of chaos ensuing:

First, by affirming the hold on DAPA and DACA+ through indecision, the Supreme Court will have permitted Republican controlled states — not the federal government — to determine the nation’s immigration enforcement policy. This would flatly contradict the Court’s major precedent decisions, including U.S. v. Arizona. In Arizona, the Court, speaking through Justice Anthony Kennedy, made clear that the federal government, not the states, are constitutionally vested with the authority to set immigration policy:

The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.

Stephen Legomsky, Professor Emeritus at Washington University School of Law and former Chief Counsel of U.S. Citizenship and Immigration Service, wrote in a post titled, Supreme Court Immigration Case Will Have Profound Impact that:

It is that combination — a lax threshold for state standing to sue the federal government and the states’ freedom to choose a friendly judicial forum for deciding both standing and the merits of the case — that makes Texas’s theory so dangerous.

Second, a split decision by the Court would have adverse ramifications well beyond immigration enforcement policy. One can only imagine the myriad of politically charged lawsuits states will be newly empowered to bring against the political decisions of a sitting president — Republican or Democrat — including challenges to his or her tax, environmental and foreign policies.

As former Solicitor General Walter Dellinger explained to the Supreme Court in an amicus brief filed in opposition to the Texas Republican challenge to DAPA and DACA+:

The dispute accordingly presents only “questions and issues” (Winn, 563 U.S. at 132) that must be left to the political process.

To [fail to dismiss the case on standing] would not only inject the Court into this political maelstrom, but also the next one, and the next. For the theory of standing advanced by respondents here would not be good for this case only. If adopted, it would open wide a back door to federal court for States seeking resolution of a host of politically charged disputes where the front door to individual plaintiffs has been barred by this Court’s precedents. Respondents’ novel theory of APA review would likewise place the courts in a supervisory status over a wide range of discretionary executive decisions, without any meaningful standards for evaluating them. 

And:

Respondents’ theory of standing would not only provide a basis for States to challenge myriad federal immigration decisions, see Pet. Br. 31, but it would also provide a ready work-around in many other cases where courts have found that individual plaintiffs lacked standing. By following the path laid out by respondents here, States could effectively step into those individual plaintiffs’ shoes and litigate policy disputes with the federal government. That would turn standing doctrine on its head.

Allowing U.S. v Texas to remain in the federal courts would allow Republican Governors and Attorneys General of 26 states to undermine the federal government’s “significant power to regulate immigration” of which Kennedy wrote. Political questions would become fodder for the courts, not the legislatures where they belong.

Again, Legomsky:

All this transcends immigration. Every time the IRS interprets the tax code in a way that favors the taxpayer, any state that chooses to base its own income tax on federal taxable income loses revenue. The state could avoid that result by changing its law, but under Texas’s theory that doesn’t matter… Accepting Texas’s radical theory of standing would be a recipe for paralysis. No one state should be empowered to thwart the federal government’s nationwide policy decisions so easily. And that is why the consequences of the Court’s final disposition will be so profound.

At The New Republic, Spencer Amdur made a similar point:

To contest a government policy in court, plaintiffs must show an “injury in fact,” which means that they are personally harmed by the policy; it is not enough to simply disapprove from a distance. This requirement is known as “standing.” In the DAPA lawsuit, both lower courts ruled that Texas had standing, but they relied on a curious theory: Because Texas subsidizes driver’s licenses for immigrants with deferred action, it will now have more licenses to subsidize. The problem with that logic is that it would allow any state to create standing, simply by tying its laws to federal policy.

The standing question is crucial for a few reasons. It’s one that is likely to appeal to the Court’s conservatives, who generally favor tighter standing requirements. It would also save the Court from having to sort through some knotty issues of administrative and constitutional law. More broadly, a generous ruling in favor of state standing could exacerbate the dysfunction that has plagued the immigration system in recent years. If Texas has standing in this case, then states might have standing to challenge almost any policy that loosens enforcement, or gives someone lawful status. (See, for example, Texas’s lawsuit to block Syrian refugees.)

At SCOTUSblog, Kevin Johnson, Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at U.C. Davis School of Law, offered a similar analysis:

If the Court finds that Texas has standing to challenge DAPA, one could also anticipate efforts by the states for partisan political reasons to employ lawsuits in the federal court to interfere with the executive branch in its discretionary judgments about how to enforce myriad laws — from the Internal Revenue Code to the environmental laws — passed by Congress.

And, that would, of course, result in countless lawsuits that would never have been filed or considered otherwise.

Finally, indecision by the Supreme Court would raise legitimate questions about whether the injunction placed on DAPA and DACA+ by Judge Hanen should continue to apply across country. No doubt there would be challenges by states such as California and Washington, which have refused to join the Republican lawsuit against Mr. Obama’s immigration executive action and persuasively argued that they’ve been harmed by the hold placed on DAPA and DACA+; no doubt federal courts outside the 5th circuit would be prevailed upon to lift Hanen’s injunction so the president’s temporary deportation deferral could move forward in other jurisdictions; and no doubt a 4–4 split by the Supreme Court would lead to a patchwork of confusing immigration enforcement regimes in different states and regions of the U.S. — a situation the Supreme Court wisely prevented through its Arizona decision.

Noah Feldman, professor of constitutional and international law at Harvard University, outlined the legal questions which would arise in the aftermath an evenly divided Supreme Court in the Republicans’ Texas lawsuit:

The 5th Circuit opinion won’t be binding precedent on other courts or future presidents. The long-term effect on executive action relating to immigration won’t be significant.

In practice, Obama’s plan might not be implemented. But even that’s not absolutely certain, at least outside Texas. It was very unusual for the 5th Circuit to issue an injunction binding the Obama administration nationally.

There’s a legitimate technical question about whether the national injunction should remain in place after the Supreme Court has heard the case. It would take five votes for Supreme Court to issue a national injunction itself — votes that certainly won’t exist. Therefore it’s at least conceivable that the plan could go into place outside the 5th Circuit.

That “legitimate technical question” would immediately be the subject of numerous lawsuits in states outside of the Fifth Circuit. In fact, many governors and attorneys general, have tried repeatedly to allow implementation of DAPA in their states, citing the economic value. At SCOTUSblog, Anne Egeler, Deputy Solicitor General for the State of Washington, wrote,

The nationwide injunction is preventing the states and their residents from receiving the substantial economic, public safety, and humanitarian benefits that will flow from the president’s immigration actions.

In its amicus brief, the State of California made a powerful case about the harm done to the state by blocking DAPA:

As a result, California’s economic growth has depended to a significant degree on undocumented workers. California’s agriculture and extraction industries employ 3.6 immigrants for every one native worker, compared to a national industry average of 1.5 immigrants per native worker. Undocumented immigrants, representing just 7% of the State’s population, make up 34% of its farm workers, 22% of its production workers, and 21% of its construction workers according to one estimate. Other estimates place these figures even higher: the proportion of California farm workers who are undocumented, for instance, may be closer to 60%. Today, the undocumented workforce alone contributes $130 billion to California’s gross domestic product (GDP) — an amount larger than the entire respective GDPs of 19 other States.

That alone would likely compel California to seek redress if the injunction is limited to the Fifth Circuit because of an evenly split Supreme Court.

At Think Progress, Justice Editor Ian Millhiser surmised what could follow:

In a highly unusual order, a federal district judge issued a nationwide halt to the policy and refused to stay that decision. A conservative panel of the conservative United States Court of Appeals for the Fifth Circuit upheld those decisions by the district judge. Thus, if the Court splits 4–4 in the Texas case, the Fifth Circuit’s order will stand.

Where things get complicated is if the Justice Department successfully obtains an order from a different circuit upholding the program, or if an immigrant who hopes to benefit from the program obtains a similar order. The Fifth Circuit is among the most conservative courts in the country, and it is unlikely that every circuit will follow its lead. In that case, there will be competing court orders holding the policies both legal and illegal, and no possibility of Supreme Court review. It is not immediately clear what happens in such a case.

Needless to say, things could get complicated. No doubt the legitimacy of Hanen’s “national injunction” would be challenged by governors and attorneys general, along with immigrant advocates, who will head to federal courts to allow implementation of DAPA. In Writing at Across the Bar, a publication of the San Joaquin County (CA) Bar Association, attorney Fernanda Pereira summed up the confusion that would unfold in the aftermath of a 4–4 split decision by the Supreme Court:

Critically, any opinion issued by the Supreme Court would not be precedent-setting; rather, the Fifth Circuit’s order will stand, but only be binding precedent in the Fifth Circuit — Louisiana, Mississippi, and Texas. If that happens, the Justice Department may obtain an order from a different circuit upholding the President’s authority to implement DAPA and DACA. The Fifth Circuit is among the most conservative courts in the country and it is unlikely that every circuit will follow its lead. There will be competing court orders holding DAPA and DACA both legal and illegal, and no immediate possibility of Supreme Court review. It is not immediately clear what happens in such a case. 

Pereira also explained the potential human cost:

If the Court’s decision is split 4–4, that would have tremendous consequences for people facing deportation. Immigrants would be treated differently under the law because of where they reside, meaning that established families (which include U.S. citizen spouses and children) will be forced to choose to relocate to jurisdictions that will grant them access to the DAPA and expanded DACA deferred action programs, or fracture.

If Texas is granted standing, that’s the immediate future. It will upend the lives of immigrants across the country and cause a rush to the courts — by states who want to challenge federal actions beyond immigration and by advocates, states and cities who want DAPA implemented in their jurisdictions.

From all indications, chaos is anathema to Chief Justice Roberts. As USA Today’s Richard Wolf noted,

Over the years, the chief justice has consistently voted to close the courthouse doors on claims and claimants he judged to be dubious. 

The dubious lawsuit brought by the 26 Republican governors and attorneys general is perhaps the most important test for Roberts in this term.

A 4–4 tie in U.S. v. Texas, a blatantly political lawsuit, guarantees at least three levels of judicial chaos. Whether or not that happens rests with Chief Justice and the rest of the Supreme Court.”

Two Key Takeaways from Yesterday’s Announcement by The Supreme Court

There are two big takeaways from yesterday’s announcement by the Supreme Court that it will review the President’s immigration executive actions–DAPA and DACA.

First, it’s good news for proponents and bad news for opponents.  It’s a huge win for 5 million parents of U.S. citizens and legal residents across the nation who will finally get their day in court after nearly a year of waiting.  It’s also a huge loss to Texas and the other GOP led states who sued in late 2014 to block Mr. Obama’s DAPA and DACA expansion from being implemented.  Make no mistake, despite what they may be spinning now, restrictionist opponents of DAPA and DACA expansion fought tooth and nail to keep the U.S. Supreme Court from taking it up, including filing a 40 page legal brief imploring the Justices to not hear it.

Second, it’s very good news that the Supreme Court has asked the parties to argue whether the executive actions violate the “Take Care” clause of the Constitution.  Judge Hanen’s decision blocking the DAPA and DACA was based on narrow procedural grounds–he did not rule on Texas’ claim that the President’s executive actions, which offer a temporary deportation reprieve to an estimated 5 million immigrants, violates his constitutional obligation to “take care that the laws be faithfully executed”.   If the Court ruled only on the narrow procedural grounds, the case would go back to Judge Hanen, a hand-picked judge whose determination to thwart immigrants and President Obama is well-established.  That the Court wants argument on the “Take Care” Clause signals that the Justices are intent on resolving the GOP lawsuit fully and completely.

That’s a good sign not only for immigrants, but for the entire country.

Is the politically charged Texas immigration case about to become more politically charged?

As the 9 justices of the U.S. Supreme Court ponder whether to review the Republican lawsuit attacking President Obama’s immigration executive actions, back in Brownsville, Texas U.S. District Judge Andrew Hanen—whom Republican politicians, led by the state of Texas, sought out late last year to block the actions known as DAPA and DACA expansion—appears to be making an already brazenly political lawsuit more political.

In a little noticed order issued earlier this month Hanen commanded the parties to appear in his courtroom on Tuesday December 15 to explain the effect of a procedural decision of the 5th Circuit Appeals Court “on the rights of individuals to intervene in the case.” (The intervenors are people who have expressed an interest in becoming parties to the Texas immigration case).

When I read Hanen’s order the first question that came to my mind was: Why have a hearing now?  Hanen’s temporary injunction blocking the immigration executive actions is currently on appeal to the Supreme Court.  If the Court agrees to hear the case this term the lawsuit will not likely return to Hanen’s court room for months, if ever.  Most legal scholars and observers believe that Hanen was wrong to block the president’s executive actions last February.  If the Supreme Court hears the case this term there’s a pretty good chance they’ll toss out the entire case, rendering a hearing on the intervenors pointless.

Wouldn’t it make more sense for Hanen to put the whole case on hold until after the Supreme Court reviews it?  Why waste precious tax payer dollars and limited judicial resources on a procedural hearing about the role of the intervenors if there is a chance the case won’t survive Supreme Court review?  On that point even the GOP politicians who brought the case seem to agree. They’ve joined the Obama administration in a motion asking Judge Hanen to shelve the case until after the Supreme Court makes a decision.

What’s driving Hanen to go forward with a hearing at this point? Doesn’t he have other cases on his docket that need his immediate attention?

Maybe Hanen’s sense of urgency has more to do with who the intervenors are? Among those seeking to impose themselves on the litigation are Orly Taitz, queen of the disgraced and discredited birther movement, which challenged President Obama’s U.S. citizenship and legitimacy as President (Taitz specifically sought out Hanen to file several anti-immigrant lawsuits) and the infamous Maricopa County Sheriff Joe Arpaio, who’s built his brand by terrorizing Latino neighborhoods, surreptitiously investigating the wife of a federal judge and violating folks’ civil rights.  Arpaio lost a case on this same issue in the D.C. District and on appeal at the D.C. Circuit Court of Appeals.  It’s difficult to imagine that either Taitz or Arpaio have a “concrete, personalized, and legally protectable” interest in the case as required for intervention. Yet Hanen has set the hearing for Tuesday, December 15 and that presumably means the interests of Taitz and Arpaio will be heard.

All this underscores the real nature of the Texas GOP attack on DAPA and DACA which, as a panel of the 5th Circuit appeals court observed in its order affirming Hanen’s hold on DAPA and DACA expansion, involves “policy disagreements masquerading as legal claims”. Taking the court’s apt description a step further, the Republican challenge to the deportation deferrals is more about the party’s rabid disdain for “anything Obama” than the sanctity of the law.  DAPA and DACA wouldn’t have even been necessary if the GOP House leadership had allowed an up or down vote on comprehensive immigration reform in 2013.  Everyone knows that immigration reform would have passed Congress and the President would have signed it into law obviating the need for a deportation deferral.  In the aftermath of the House GOP’s intransigence Obama set forth immigration enforcement priorities which target felons, national security threats and recent border crossers rather than DREAMers and undocumented parents.  While he was able to slap a temporary hold on DAPA and DACA expansion, Hanen—who has not shied away from launching gratuitous attacks on the Obama administration’s immigration enforcement policies—knows that the President’s enforcement priorities are unassailably legal.

Is that why Hanen appears so eager to open his courtroom to a discussion of the role of the intervenors, including the infamous Sheriff Joe Arpaio and birther queen Orly Taitz, as the Supreme Court decides whether it will hear the Texas immigration case this term?

It seems that the participation of Apraio and Taitz will do little more than inject more nasty politics into the GOP’s shamelessly political lawsuit.

5 things to know about the fight over Obama’s #immigration actions

Originally posted on MSNBC.com

By David Leopold

Late Monday night, U.S. District Judge Andrew Hanen temporarily blocked President Obama’s executive actions on deportations, which were challenged in federal court by Texas and 25 other states.

The immigration actions, which were set to begin going into effect today, expand DACA to undocumented immigrants over the age of 30 who arrived in the U.S. as children and create DAPA, a discretionary temporary deportation reprieve for undocumented parents of U.S. citizens and lawful residents. For now, both initiatives are on hold while the administration files its appeal with the court of appeals.

Here’s what else you need to know.

What is the Texas lawsuit about?

At bottom, the states claim that President Obama unconstitutionally bypassed Congress last year by offering deportation reprieves through executive action. The administration – with the support of 12 states, the District of Columbia, 33 cities, 27 police chiefs, highly respected legal scholars and nonprofit organizations – counters that DACA expansion and DAPA are solidly legal and that presidents of both parties have used their executive authority to grant similar deportation reprieves.

Why did the judge block the executive actions?

Judge Hanen focused on Texas’ claim that it would suffer financial loss by having to issue driver’s licenses to DACA and DAPA recipients. As he has done in previous cases, the judge used his 123 page order as a bully pulpit to excoriate the administration’s immigration enforcement policies. (The DACA program, which went into effect in 2012, was not affected by the judge’s order.)

Yet despite halting the immigration initiatives, Hanen did not rule that Obama in anyway exceeded his lawful authority or violated the constitution. Instead he ruled on very narrow, highly technical legal grounds: That the executive actions did not comply with the rule making requirements of the Administrative Procedures Act. The administration argues that the deportation reprieves are solidly legal and well within the president’s authority to focus limited immigration enforcement resources on the deportation of terrorists, felons and gang members – not DREAMers, and mothers and fathers of U.S. citizens and lawful permanent residents.

What happens now?

Judge Hanen’s order is of course an unwelcome setback for supporters of the president’s executive actions, but it’s hardly a fatal blow to DACA expansion or DAPA. The final decision – which most legal experts are confident will uphold the president’s immigration actions – will come from a much higher court; probably the U.S. Supreme Court.

Here’s how it will work: The Obama administration will appeal Judge Hanen’s decision to the Fifth Circuit Appeals Court. The higher court will likely take several weeks or months to decide the case. In the meantime, both the DACA expansion and DAPA will remain on hold. The government will not accept applications for either program, but potential applicants would be well advised to continue to collect documents so they are ready to apply when the injunction is eventually lifted.

If the Fifth Circuit reverses Judge Hanen’s order – as many experts expect it will do – the DACA expansion and DAPA processes will go forward as planned. If not, the president’s executive actions could be delayed for many more months while the administration asks the U.S. Supreme Court to review the case.

Importantly, Judge Hanen’s order is hardly the final word. It’s just the first act in what could be a very drawn out play that may conclude in the U.S. Supreme Court.

In the meantime, what happens to the DREAMers and parents who qualify for DACA plus and DAPA?

The law requires Obama to set immigration enforcement priorities – to decide, in effect, which undocumented immigrants should be deported first. Last November, when he announced his immigration executive actions, the president said he’ll prioritize the deportation of “felons, not families. Criminals, not children. Gang members, not a Mom who’s working hard to provide for her kids.”

What that means for immigrants who would qualify for the DACA expansion and DAPA is that, as long as they are not a deportation priority, their cases will remain at the bottom of the enforcement barrel while the Department of Homeland Security focuses on getting rid of those who threaten the safety of American communities.

How does the judge’s decision affect the larger battle over comprehensive immigration reform?

At the time Judge Hanen ruled on Monday, congressional Republicans were trying to figure out how to break a stalemate that threatens to shut down the Department of Homeland Security over GOP opposition to the president’s executive actions on immigration.

Hanen’s injunction clearly complicates things for the GOP. Conservative Republicans may harden their position against compromise with Democrats and the administration on homeland security funding. On the other hand, Hanen’s order temporarily halting the implementation of DACA expansion and DAPA arguably takes the issue off the table – at least for now – undercutting those in Congress intent on using homeland security funding to kill the president’s immigration initiatives.

Yet despite the GOP’s apparent obsession with creating an immigration system characterized by chaos and mass deportation, one thing is crystal clear – the DREAMERs and undocumented parents the Republicans long to deport are not going anywhere. They are already home.

Stay tuned.

Do Republicans have grandparents too?

Originally posted on Neil Steinberg’s blog.

BY NEIL STEINBERG
This is my grandfather, Irwin Bramson. I don’t believe his picture has ever appeared in a newspaper before. He would be delighted to see it here.
My grandfather was not famous, or successful, beyond supporting his family, working in a factory in Cleveland that made machine parts. He eventually owned his own house, on Rossmoor Road in Cleveland Heights. He was very proud of that.
My grandfather was born on a farm in Bialystock Poland, in 1907 and was sent to this country because things were very bad there and he had a relative, a distant cousin in Cleveland who owned an automobile parts factory and would employ him. He left at 16 and never saw any of his family again; they were all murdered, man, woman and child by the Nazis and their henchmen.
When he got here, he no doubt faced the scorn of those who felt that America was being corrupted by racially inferior immigrants such as himself that all manner of subhumans and Jews, were poisoning American blood, that they were constitutionally different and would never fit in.
But he did fit in. He never went to college, but he met my grandmother, got married—they went to the Century of Progress Exposition in Chicago on their honeymoon in 1934. They had three daughters, my mother being the eldest. Had they been born in Poland, they all would have been murdered too.
All of my memories of him involve him sitting in a green Barcalounger, watching “The Price Is Right.” He smoked cigarettes and drank bourbon. He sucked Luden’s Cherry Cough drops for his throat—he would die of emphysema in 1981.
He taught me chess. He would give me a dollar if I won and a dollar if I lost. He took me to my first baseball game. There was nothing mean or difficult about him. He did not complain. He asked nothing of anybody. In fact, he rarely spoke. He was a simple man, and I loved him.
Everyone in the United States, unless they are a Native-American, has a person like my grandfather in their past, someone who came over here to escape hardship or horror and make a life. Whether it was 5 or 50 or 500 years ago, the story is the same. They came over and the country let them in.
My grandfather became a citizen, not because he was a genius, not because he was harder working or smarter or better than any Mexican fording the Rio Grande. But because he could back then. There was an Ellis Island and a system that worked. Today Ellis Island is a shrine to ideals that half the country doesn’t believe anymore, who adopt the cruel role of the Americans who harassed their own forebears.
I thought of my grandfather, after I watched Barack Obama’s brief speech Thursday night—lucky I have cable because none of the networks, the supposed mainstream media supposedly in his thrall, bothered to show it. He announced his changes to immigration policy, to allow undocumented immigrants who have been here longer than five years to “get right with the law,” register and not fear deportation.
Before Obama even spoke, the Republicans, who oppose everything the president has done, is doing, or will do, made a show of opposing this too, a rare trifecta blending economic myopia, longterm political suicide, and lack of basic human decency. Only time will tell if they respond by trying to impeach him, shut down the government or some new strategem. The only thing that they are certain not to do is pass the comprehensive immigration reform which, announcing his stopgap, Obama called for.
That this is the right thing, that it is long overdue, that it will help the United States economy, that to do otherwise is cold hypocrisy and a denial of their own family, an insult the memory of my grandfather and theirs and the millions like him, never wrinkles their brow.
My wife and I watched the speech.
“He looks tired, frustrated,” my wife said.
“He’s trying to talk sense to idiots,” I said.
I’m glad I saw the speech, because I was starting to think very little of Obama, just by osmosis, just by living in a country where he is so despised. I wish he had done this three months, six months, a year ago. Not doing so was the kind of small, mean political calculation that has hobbled his presidency. The Democrats got drubbed anyway.
But now I realize, the bottom line with Obama is: he did what he could do. He didn’t waste effort trying the impossible. Even his narrowed options were tough to manage.
The good news is, he’s already won.
As with gay marriage, the notion of no longer keeping millions who came to this country illegally in rightless limbo forever will seem an impossibility until suddenly it doesn’t and everybody wonders what took us so long to do the moral thing. Then the people who are castigating the president now will be hard to find. Cornered, they will shrug off their fanatical opposition to people just like their own grandparents with some easy rationalization. What really struck me about the president’s speech is he could speak the words at all, that he somehow found the stamina to present a cogent argument to rabid enemies who stopped listening long ago. There is a nobility to that.

When It Comes To immigration Reform, GOP Insists On Being The Party Of ‘No We Won’t’

Originally Posted on Fox News Latino

Daniel Neyoy Ruiz, an undocumented immigrant has, quite literally, turned to his church for an eleventh hour stay of deportation.

Since last week Ruiz, his wife and his U.S. citizen son have been held up in the Southside Presbyterian Church in Tucson, Arizona after it offered him refuge from U.S. Immigration and Customs Enforcement, which seems to have an insatiable appetite for devouring mixed immigration status American families.

Ruiz, who is from Mexico, was scheduled to be deported last week but instead chose indefinite detention in the church, which has a three decade history of offering sanctuary to undocumented immigrants.

Until Boehner and Cantor decide to show some political courage, good people like Mr. Ruiz will be forced to seek sanctuary in churches to protect their families from ICE agents looking to meet deportation quotas.
– David Leopold

There is more than a little irony in an undocumented man fleeing to a church to protect his family while the GOP controlled House of Representatives – whose leaders are quick to tout religion and “family values” – do nothing to keep mixed immigration status American families safe and together. Never mind that recent polls show overwhelming support by Republicans (64 percent), Democrats (78 percent) and Independents (71 percent) for immigration reform, including a legal route to lawful immigration status for the 11 million undocumented noncitizens living in America. And that’s not just a cold statistic. That’s 11 million undocumented Americans – mothers, fathers, sisters and brothers – who came to this country like generations of immigrants before them, to build a better life for future generations.

Of course it’s not quite fair to say that the House GOP has done nothing on immigration. To the contrary, they have voted to deport DREAMERs and, as I write this, House Majority Leader Eric Cantor is devoting his energy (and your tax dollars) to blocking the Enlist Act which would allow some undocumented immigrants to serve in the U.S. military and, under certain circumstances, earn green cards. The legislation was introduced Monday by Rep. Jeff Denham (R-Va.) as an amendment to the National Defense Authorization Act. But Cantor is vowing to not even allow debate on the bill.

It’s almost like House Republican leaders are looking for ways to further alienate Hispanic voters and threaten the GOP’s national viability.

Imagine if Speaker John Boehner, House Majority Leader Eric Cantor and the rest of the GOP leadership paid the same deference to the will of the American people that they do to the extremists in their party. An immigration overhaul would likely already be the law of the land and hard-working fathers like Mr. Ruiz would be supporting their families, continuing to pay their taxes and further contributing to the fabric of their communities.

But until Boehner and Cantor decide to show some political courage, good people like Mr. Ruiz will be forced to seek sanctuary in churches to protect their families from ICE agents looking to meet deportation quotas at the expense of common sense enforcement.

If the Republicans insist on being the party of “No We Won’t” when it comes to immigration reform, then President Obama should once again insist that “Yes We Can.” There is plenty the President can do to stop the humanitarian crisis which plagues the nation and bleeds American families in places like Tucson, Arizona, Seattle Washington, and Painesville, Ohio. Mr. Obama has the legal authority to broaden DACA, the temporary deportation reprieve he gave to qualified undocumented youth in June 2012. He could also order Attorney General Holder to review the onerous evidentiary burdens placed upon immigrants seeking waivers from immigration judges due to the extreme hardship that deportation would cause their U.S. citizen and lawful resident family members. Further, the President could use statutes already on the books to allow the qualified undocumented spouses of U.S. citizens to apply for green cards without having to leave the country and risk being banned from returning to their families for 10 years.

It’s a sad day in America when an undocumented immigrant is forced to seek haven in a church to keep his family together. I am sure that many Americans will pray for him and other undocumented immigrants who are caught in the web of a broken, rigid and unforgiving immigration system.

In the meantime, it shouldn’t take a miracle for the House of Representatives to do its job and pass immigration reform.

Ruling On Garcia Shows A Growing Recognition Of The Undocumented Youth

From Fox News Latino

In the end, the California Supreme Court’s decision to grant a law license to Sergio Garcia, an unauthorized Mexican immigrant, was all but a foregone conclusion. Garcia, a law school graduate who came to the U.S. illegally with his parents when he was a child, went on to complete high school, college and law school in the U.S. But after he passed the California Bar Examination his admission was stalled by a provision in the federal immigration law which restricts undocumented immigrants from obtaining professional licenses issued by state agencies. Garcia refused to take “No” for an answer and, with the aide of counsel, valiantly argued that the federal provision—section 1621 of the federal immigration code—didn’t apply to California State Bar admissions.

The California Supreme Court heard arguments late last summer and was gearing up to resolve the complicated legal issue when California Governor Jerry Brown signed legislation passed by the legislature which amended the law to permit the admission of undocumented immigrants to the California Bar. The statutory tweak, which went into effect on January 1, 2014—the day before the California Supreme Court decided Garcia’s case—satisfied a provision in the federal immigration law which permitted undocumented immigrants to obtain professional licenses where state law “affirmatively provides for such eligibility.”

The resolution of Mr. Garcia’s case—the result of the collective wisdom of the California legislature, the Governor, and the state Supreme Court—shows there is a growing recognition among policy makers and jurists that undocumented youth who have been raised and educated in the U.S. are the product of our investment in the future of the Nation. Educated in our schools they have become an intrinsic part of America’s social fabric. Certainly the inability to earn lawful immigration status—because of the jumble of rules and regulations known as the Immigration and Nationality Act—should not prevent a talented lawyer or other professional from being licensed to serve his or her community.

Yet the outcome of the Mr. Garcia’s case, as wonderful as it is for him and other undocumented Californians who aspire to be lawyers, does not solve the problem for other undocumented professionals across the country. In places like Arizona, Alabama, and Georgia, where legislatures and governors have cynically fanned the flames of fear, the result has been enactment of mean spirited anti-immigrant laws arguably intended to chase away Latino residents. What about aspiring attorneys and other professionals in those states?  There are thousands of undocumented youth, who like Sergio Garcia, dream of becoming licensed doctors, lawyers, engineers so they can give back to the only country they know and struggled against all odds to enrich. But can anyone imagine Arizona Governor Jan Brewer following Governor Brown’s lead by signing a bill founded on the belief that promising undocumented youth should not be stymied by a rigid and unworkable federal immigration law?

To be sure, there are other states where, like California, the legislatures and governors recognize that undocumented youth, raised and educated in this country, should not be punished because they lack immigration paper work. Just this week New Jersey Governor Chris Christie signed a bill extending in-state tuition benefits in public universities to undocumented students.

In the absence of immigration reform the states are taking action, some with an eye toward integration and others with an eye toward expulsion, to fill the vacuum left by the federal government. But is this state-by-state imbalanced approach any way to run a supposedly federally controlled immigration policy?

As the GOP controlled House of Representatives dithers on immigration reform, allowing itself to be held captive by extremists in the party, a hodgepodge of state immigration rules continues to develop from state to state. Should undocumented immigrants—or lawful immigrants for that matter—be treated better or worse depending upon where they happen to live?  Is a promising undocumented law graduate in California more worthy of a law license than a promising undocumented law graduate in Florida?  Shouldn’t there be uniform opportunity and civic responsibility for all?

The California Supreme Court’s decision in Sergio Garcia’s case will hopefully serve as a lesson to the entire Nation. America’s strength is its openness, its celebration of creativity and new ideas. The exceptional nature of America is the result of hard working immigrants, including promising undocumented immigrants like Sergio Garcia who may lack immigration documents, but know in their hearts that they too have a place in the American family.

David Leopold is the former national president of the American Immigration Lawyers Association and currently practices immigration law in Cleveland, Ohio.

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