Supreme Court rules certain immigrants do not have right to bond hearing
March 19, 2019
The US Supreme Court ruled Tuesday in Nielsen v. Preap that immigrants who have committed certain crimes are not entitled to a bond hearing and once detained can be held in federal custody until their removal proceedings are resolved.
In an opinion by Justice Samuel Alito, the Supreme Court overturned two Ninth Circuit decisions (Preap v. Johnson and Khoury v. Asher) that held that aliens who were not immediately detained upon release from criminal custody were entitled to a bond hearing.
This class action suit arose under 8 USC § 1226, known as the “mandatory detention provision” of the Immigration and Nationality Act. This provision, in relevant part, mandates that “the Attorney General shall take into custody any alien who … is deportable by reason of having committed any offense covered in section … when the alien is released.”
Plaintiffs, mostly green-card holders, argue that, because they were not immediately taken into custody upon completing their sentences, they are not covered by the mandatory detention provision. Many of the plaintiffs lived and worked in the US for years upon release and argue that they should be considered for bond release, rather than detention, while their removal orders are being processed.
The court’s majority disagreed, finding more persuasive the Trump administration’s argument that the government’s duty to detain aliens who have committed certain crimes is not abrogated if the government fails to detain the individual immediately upon release. In closing his opinion, Alito emphasized that the court did not consider the constitutionality of the mandatory detention provision because that question was not brought by the plaintiffs in this case.
In a brief concurrence joined by Justice Neil Gorsuch, Justice Clarence Thomas wrote that various statutes limit judicial review in this cases, noting that the Districts Courts likely did not have jurisdiction.
Justice Stephen Breyer, in a dissent joined by Justices Elena Kagan, Ruth Bader Ginsberg and Sonia Sotomayor, focused primarily on the statute’s text, finding that:
The language of the statute will not bear the broad interpretation the majority now adopts. Rather, the ordinary meaning of the statute’s language, the statute’s structure, and relevant canons of interpretation all argue convincingly to the contrary.
In announcing his dissent, Breyer also cited concerns with the powers the majority’s opinion grants to the government: “It is a power to detain persons who committed a minor crime many years before. And it is a power to hold those persons, perhaps for many months, without any opportunity to obtain bail.”
Toledo voters approve legal rights for Lake Erie
February 27, 2019
Lake Erie is a source of water for an estimated 11 million US and Canadian citizens. As recently as 2014 the water in Toledo was unsafe to drink for a period of three days, due to runoff from farms causing a toxic green cyanobacteria bloom.
On Wednesday a lawsuit was filed in federal district court, challenging the Lake Erie Bill of Rights. The lawsuit was brought by the Drewes Family Farm and alleges that the Lake Erie Bill of Rights will “put the family at risk of massive liability if any fertilizer runoffs enters the Lake Erie watershed.”
Supreme Court denies international organization absolute immunity from lawsuits
February 27, 2019
The US Supreme Court on Tuesday denied the International Finance Corporation (IFC), an international organization, “absolute immunity” from lawsuits in the US.
About 10 years ago, IFC, an IOIA international organization, entered into a loan agreement with an Indian company to finance the construction of a coal-fired power plant in Gujarat. Local farmers, fishermen and a small village sued the IFC, seeking injunction relief, claiming that pollution from the plant harmed the surrounding air, land and water.
The IOIA of 1945 grants international organizations the same immunity from suit, virtually absolute immunity, as is enjoyed by foreign governments. The FSIA 1952 gives foreign sovereign governments presumptive immunity from suit, subject to several statutory exceptions, including an exception for actions based on commercial activity with a sufficient nexus with the US. The court admits that under the rules applicable in 1945, the extent of immunity from suit was virtually absolute. However, under the rules applicable today, it is more limited.
The court reasoned that the international organization immunity and the foreign sovereign immunity are equivalent. The IOIA’s reference to the immunity enjoyed by foreign governments is to an external body of potentially evolving law, and its scope and content should be given only by reference to the rules governing foreign sovereign immunity. The court rejected the IFC’s concern that interpreting the IOIA immunity provision to grant only restrictive immunity would defeat the purpose of granting the clause. “This concern is inflated.”
The court held that the IOIA of 1945 affords international organizations the same immunity from suit that foreign governments enjoy today under the FSIA of 1976.
Supreme Court orders lower court to determine competency of death row inmate with dementia
February 27, 2019
The justices ruled 5-3 in favor of inmate Vernon Madison, who was sentenced to death for killing a police officer in 1985. While awaiting execution, Madison suffered a series of strokes and was diagnosed with vascular dementia. The justices have previously said the constitutional ban on cruel and unusual punishment means that people who are insane, delusional or psychotic cannot be executed.
In 2016 Madison petitioned for a stay of execution on the ground that he was mentally incompetent, as he failed to remember committing the crime for which he was sentenced to die. The state responded that even if Madison could not remember the crime, he has a rational understanding of the reasons for his execution.
In its ruling, the Supreme Court confirmed that the Eighth Amendment “may permit executing Madison even if he cannot remember the crime,” and that the Eighth Amendment may prohibit executing Madison even though he suffers from dementia, rather than delusions. Ultimately, “the sole question on which Madison’s competency depends is whether he can reach a ‘rational understanding’ of why the State wants to execute him.”
Justice Elena Kagan delivered the majority opinion. Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissented. Justice Brett Kavanaugh was not yet on the court when arguments took place in early October.
Utah Senate approves hate crimes Bill
March 06, 2019
SB 103 would authorize increased penalties for criminals who target victims based on certain personal attributes including age, race, religion, sex, and sexual orientation.
(2) A defendant is subject to enhanced penalties under Subsection (3) if the defendant intentionally selects:
(a) the victim of the criminal offense because
of the defendant’s belief or perception regarding the victim’s personal
attribute or a personal attribute of another individual or group of individuals
with whom the victim has a relationship; or
(b) the property damaged or otherwise affected by the criminal offense because of the defendant’s belief or perception regarding the property owner’s, possessor’s, or occupant’s personal attribute or a personal attribute of another individual or group of individuals with whom the property owner, possessor, or occupant has a relationship.
Senator Daniel Thatcher, who sponsored the bill, said the biggest hurdle facing the bill came from senators worried about prosecuting thought crimes. As written, SB 103 would not operate as a standalone criminal offense, and only increase penalties for those convicted of other crimes.
SB 103 faced significant debate on the floor, including over what classes should be covered.
Federal appeals court allows construction of border barriers over environmental groups’ objections
February 12, 2019
The US Court of Appeals for the Ninth ruled Monday that the Department of Homeland Security (DHS) had the legal authority to repair and replace existing fences and walls along the Mexican border in southern California without following certain requirements of federal environmental protection laws.
The appeals court’s ruling upholds a lower district court’s decision in a lawsuit brought by the California Attorney General Xavier Becerra and a number of environmental activist groups, including the Center for Biological Diversity, the Sierra Club and the Defenders of Wildlife, who argued that the DHS’s waiver of environmental protection statutes when expediting the construction of the border barriers was illegal.
The court was unmoved by the arguments, finding that the authorizing statute, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, expressly delegates the Secretary of the DHS “the authority to waive all legal requirements” required to enforce the law, including environmental statutes. Circuit Judge M. Margaret McKeown, writing the majority opinion, described the decision to side with the Trump administration as mere common sense. “To suggest that Congress would authorize DHS to build new border barriers but prohibit the maintenance, repair, and replacement of existing ones makes no practical sense” she said in the opinion. Since the DHS is authorized to repair and replace the walls, and the Secretary of the DHS is authorized to waive environmental protection statutes in pursuit of these projects, “the environmental claims are precluded by the Secretary’s waiver” and the district court was correct in its summary judgement in favor of the DHS.
A separate dissent by Circuit Judge Callahan stated that he agreed in the dismissal of the lawsuit, but felt that the appellate court had no jurisdiction and that the Supreme Court is the only body with the authority to hear the appeal.
The decision comes while a similar challenge is pending before a federal court in Washington, DC, for sections of the border in Texas. The US Supreme Court recently refused to hear an appeal stemming from another environmental challenge to the proposed California border wall.
Senate approves over 1.3 million acres for conservation lands, rivers, national monuments
February 13, 2019
The US Senate voted 92-8 Tuesday to approve legislation setting aside nearly two million acres of public land for conservation—a bipartisan package of more than 100 public lands, natural resources and water bills.
The bill designates 1.3 million acres in western states with the most stringent classification of “wilderness,” prohibiting any development or motor vehicles. It sets aside hundreds of miles of rivers and trails for conservation. In addition, it expands national parks and creates five new national monuments: Medgar and Myrlie Evers Home National Monument in Mississippi, Mill Springs and Camp Nelson in Kentucky, Saint Francis Dam site in Los Angeles, and 850 acres in Utah as the Jurassic National Monument.
The bill includes the permanent reauthorization of the Land and Water Conservation Fund, which expired last fall before Congress could agree on new wording. The fund collects fees from oil and gas companies to pay for conservation programs along shorelines. Previously, the fund had to go through a reapproval process which left it vulnerable to lapse.
The bipartisan bill moves to the House of Representatives where it is expected to pass.