In yet another shadow docket ruling without rationale, the Supreme Court stayed the injunction from the LA District Court against ICE rounding up random Hispanics who are now presumed to be illegal immigrants until they can prove otherwise to the satisfaction of masked agents.

Concurring, Justice Brett Kavanaugh explains his joining the 6-3 majority, noting that ethnicity alone is not enough. But add in other benign factors that typically go hand in hand with ethnicity and its close enough for reasonable suspicion.

Here, those circumstances include: that there is an extremely high number and percentage of illegal immigrants in the Los Angeles area; that those individuals tend to gather in certain locations to seek daily work; that those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction, that do not require paperwork and are therefore especially attractive to illegal immigrants; and that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English. Cf. Brignoni-Ponce, 422 U. S., at 884–885 (listing “[a]ny number of factors” that contribute to reasonable suspicion of illegal presence). To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a “relevant factor” when considered along with other salient factors.

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One of the many inexplicably bizarre acts of the Trump administration was the firing of Immigration Judges, given that his push to deport requires enough immigration judges to issue orders of removal. They’re administrative judges, working under the Department of Punishment Justice, which has little tolerance for judges who do their job and refuse to rubber stamp removals with either the speed or reliability demanded of them. And yet, they still need the warm bodies to do as they’re told and wield the stamp. What to do?

Why not deploy JAGs in their place?

Military lawyers,  JAGs for Judge Advocate General, are some of the finest lawyers around, both in terms of competence and integrity. Their mission is to administer the Uniform Code of Military Justice, a parallel legal system to address the conduct of members of the military. What they neither do nor know is immigration law. It isn’t their gig and they never signed up to be immigration lawyers or judges. But hey. they exist, they’re on the payroll and Trump needs someone to follow orders and sign off on removal orders. So why not? Continue reading →

Remember when the president responded to the public’s overwhelming clarion call to change the name of the Gulf of Mexico? And with the stroke of a Sharpie, he did, changing the trajectory of the future from lowly Mexico (boo) to bigly America (YAY!)? Well, President Donald J. Trump just did it again

Section 1.  Purpose.  On August 7, 1789, 236 years ago, President George Washington signed into law a bill establishing the United States Department of War to oversee the operation and maintenance of military and naval affairs.  It was under this name that the Department of War, along with the later formed Department of the Navy, won the War of 1812, World War I, and World War II, inspiring awe and confidence in our Nation’s military, and ensuring freedom and prosperity for all Americans.  The Founders chose this name to signal our strength and resolve to the world.  The name “Department of War,” more than the current “Department of Defense,” ensures peace through strength, as it demonstrates our ability and willingness to fight and win wars on behalf of our Nation at a moment’s notice, not just to defend.  This name sharpens the Department’s focus on our own national interest and our adversaries’ focus on our willingness and availability to wage war to secure what is ours.  I have therefore determined that this Department should once again be known as the Department of War and the Secretary should be known as the Secretary of War.

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My dear friend, Judge Richard Kopf, had a problem. Whether he agreed with the Supreme Court or not on any given case, he understood it was his obligation as a district court judge to follow its precedent. After all, they were Supremes and he was . . . not. But how, he complained, was he supposed to follow its precedent when it failed to provide either a rule or a coherent rationale that told district judges what to do in order to comply? Even when SCOTUS tried to explain itself, he found the explanations unhelpful and frequently impossible to apply to real cases in real district courts in the real world.

His take was that the Supreme Court was too absorbed by impractical ideology, deliberately vague to cover its butt, and lacked a functional understanding of what trial court judges did in the trenches. Continue reading →

It’s not that Harvard University didn’t have a significant and deeply troubling antisemitism problem. It did. It still does. And that’s really bad. But that does not, as Judge Allison Burroughs found, provide the Trump administration with a smokescreen to impose its ideological views having nothing to do with antisemitism on Harvard.

Harvard asserts that the Defendants’ actions in this case “violated Harvard’s First Amendment rights in at least two ways: 1) by retaliating against Harvard based on the exercise of its First Amendment rights, and 2) by imposing content- and viewpoint-based burdens on those rights through the imposition of funding conditions that are unrelated to any legitimate government interest in combating antisemitic harassment or otherwise.” Because of this, Harvard contends that “[t]he Freeze Orders and Termination Letters should be vacated and set aside, and any further similar action against Harvard should be permanently enjoined.”

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Arizona has a problem, one that is shared by other states. They have more criminal defendants than they have criminal defense lawyers. As Gideon made it incumbent on states to provide counsel for the indigent accused, the need for someone to stand beside a criminal defendant is clear, even if disregarded by some locales when it proves inconvenient. But what can be done when there just aren’t enough lawyers to fill the gap? Arizona’s Dave Byers, director of the administrative office of the courts, has come up with a solution.

A proposal being advanced by the top administrator of the Arizona Supreme Court would take what now are programs offered at the state’s two law schools to simply provide advanced legal knowledge to graduate students and enhance and convert them to a one-year course that, in the end, would lead to the ability to actually take on clients. Continue reading →

Outside of Biglaw, the Justice Department has been the primary source for federal judges for a very long time. It’s long been raised as a problem, given that judges presumably are more sympathetic to the prosecution and feel a certain camaraderie with their former government assistants than those nasty criminal defense lawyers with their piles of rubber bands on their desk. And yet, these judges almost never recuse themselves when they catch a criminal case where last week’s AUSA officemate is now standing in the well assuring the court that the defendant is a bad dude.

On occasion, a motion will be made for the judge to recuse him or herself based upon the appearance of a conflict of interest, the very recent and very close connection the former AUSA had with DEA task force. And the motion will, almost invariably, be denied. After all, if former government lawyers cum judge couldn’t hear cases involving the government, they would be relatively useless on the bench since that makes up a huge percentage of the docket. Continue reading →

In a New York Times op-ed, history prof Erik Loomis questions why, in the face of Trump’s massive termination of federally unionized labor, unions have been neither seen nor heard.

This is a most unfortunate Labor Day for labor. The labor movement has taken it on the chin repeatedly in the last several decades, but President Trump is the most ruthlessly antilabor president since before the Great Depression.

If the labor movement does not fight harder than it has since Mr. Trump regained the presidency, its future will be dire.

What goes unmentioned is that Loomis speaks to public sector unionism, which is a breed apart from private sector unions. He’s not wrong that unions have been bizarrely silent in the face of mass firings with neither cause nor reason. There is a huge distinction between the question of whether the government, via Must and the DOGE muskrats, was sound policy (it wasn’t) and whether the workers had a right to their jobs (they didn’t). Continue reading →

Whether it’s federalizing the National Guard or imposing tariffs, the predicate is an emergency. Congress has enacted laws that confer powers, to a greater or lesser extent, on the president to deal with emergent situations that require action immediately and can’t wait for Congress to get its act together. But these laws presuppose that there is, in fact, an emergent situation, an emergency.

In the District of Columbia, Trump declared there is a crime emergency. There was, of course, crime occurring, as there pretty much always is. The magnitude of crime was lower than it had been in the past, although some denied that the statistics were legitimate. Then again, even if the statistics were being fudged, that does not prove that crime was either increasing or a sudden crisis. At worst, it was status quo. What part of this gave rise to an emergency? Trump said so. Continue reading →

The Court of Appeals for the Federal Circuit, en banc, affirmed the decision of the Court of International Trade (CIT) that the president has no authority under the International Emergency Economic Powers Act of 1977  (IEEPA) to unilaterally impose tariffs. Declaring an emergency does not empower the president to do whatever he pleases, even if he puts on a cool Liberation Day show.

Contrary to the Government’s assertion, the mere authorization to “regulate” does not in and of itself imply the authority to impose tariffs. The power to “regulate” has long been understood to be distinct from the power to “tax.” In fact, the Constitution vests these authorities in Congress separately. U.S. Const. art. I, § 8 cl. 1, 3; see also Gibbons v. Ogden, 22 U.S. 1, 201 (1824) (“It is, that all duties, imposts, and excises, shall be uniform. In a separate clause of the enumeration, the power to regulate commerce is given, as being entirely distinct from the right to levy taxes and imposts, and as being a new power, not before conferred. The constitution, then, considers these powers as substantive, and distinct from each other.”); Nat’l Fed’n. of Indep. Bus. v. Sebelius, 567 U.S. 519, 552, 567 (2012).

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