Supreme Court Immigration Case

Messy.  Immigration policy is always messy.  This case is messy.  Obama’s order did not legalize anyone, but deferred deportation for a small fraction of immigrants here illegally.  It is estimated that it applied to 400,000 of the 11 million illegal immigrants.  The question is whether President Obama has this authority.  The Obama administration is on the defensive because the Texas court says he doesn’t have this authority and this caused a temporary halt to the program.   A future president could rescind this order.

Illegal immigrants who qualify get the all important green card, with alien registration numbers,  just like permanent residents.   So, opponents of the order argue that this simply promotes illegal immigration to this country.  However, new arrivals or anyone coming after 2010 are excluded from this order.   Many will not qualify because of a lack of documentation showing that they were here in 2010.

The outcome could go 4-4,  5-3 or even 6-2,  with Roberts and Kennedy joining with the liberals.  But, many observers seem to go for the 4-4 verdict, which is a win for the states suing the government and an  end Obama’s executive action.

The case will be decided in June.   The best analysis of the issues comes from scotusblog.com as follows:

Scotusblog.com

Obama’s executive order included the words “lawfully present”  for people here illegally.   It was argued by the Solicitor General  the executive order might work equally well without these 2 words.   But, attorneys supporting Texas, insisted the order allowed people to be lawfully present, whether it was explicitly stated or by the rights created by the order.

I guess the SC has  the option of striking down the entire order because it is simple contradiction of the legal status of these immigrants, and beyond the authority of the President to change.

But, the executive branch has the obligation to carry out the laws passed by Congress- not enact laws to their own liking.  So, this is the basis for Justice Kennedy’s comment that the executive order turns  policy making upside-down. This comment coming from Justice Kennedy gives experts the feeling of a 4-4 decision with Justice Kennedy siding with conservatives.  Thus, the argument that Obama’s executive order runs counter to the wishes of Congress is strong.

Another problem is whether Texas can show grounds for bringing the lawsuit, based on the financial harm of having to provide driver licences to all the “legally present”  immigrants.  There was extensive discussion on this point.  Texas has a law in place permitting driver licences to those in the  “deferred status” category, so they would be financially burden unless they changed their laws in which case they could not sue the government.   Chief Justice Roberts aptly called this a Catch-22.

Transcript of Oral Arguments

Liberals seemed more receptive to the argument that the realities of the immigration policy,  11 million illegal immigrants, and funds  be sufficient to deport a fraction  of these immigrants, so prioritization is within the right of the executive branch.  The Solicitor General Donald Verrilli opened with this observation, but Justice Sotomayor brought it up again during questioning.

The case will likely be a critical one, as this order is seen as an expansion of the authority of the president particularly among Republicans.  It is seen as a pragmatic solution to a Congress deadlocked on immigration reform among Democrats.   An Executive Order is not a law, but a temporary measure- but once immigrants get their deferred status, I honestly can’t see any future president wanting to rescind this order.

Stay tuned,

Dave

 

 

Zubik v. Burswell- Another Supreme Court Challenge to Obamacare

” Clowns to left of me, jokers to the right, Here I am, stuck in the middle with you.”  Lyrics-  Steve  Healy  band.

The “you” in Steve Healy song, are the plain facts about the latest case to come before the Supreme Court. Most people are not interested in facts.  The clowns and jokers are far more entertaining for their 90 seconds of fame.   I dedicate this blog to my favorite clown/joker Graham Ledger, truly outstanding for his total certainty on topics of which he has no real knowledge.  One day it will be Iran, the next Obamacare or the deficit.  He is a truly non-stop Obama basher.  When lesser minds prevail, God save us all!

Oral arguments were held on   March 24,  in Zubrik v Burswell in the Obamacare case.

ZUBIK ORAL ARGUMENTS

We think of religious freedom as guaranteed under the First Amendment.  In fact, our rights are further extended and defined by many other laws and rulings by the courts.  Religious freedoms, as with every right in the Bill of Rights, are limited.   You may not refuse to pay your taxes, because that is a violation of your religious principles.   If your religious principles says that you can not hire blacks or Muslims in your business, the laws related to race and religious discrimination will likely supersede these religious beliefs.

I will examine religious freedoms in a separate blog.  It isn’t as Ted Cruz or Graham Ledger portray it.  They extract from many cases,  a  select few concerning Catholics and ignore many other cases from lesser religions.

But the Zubrik case involves  the extend of religious accommodations based on  the Religious Freedom Restoration Act (RFRA which the justices refer to  as “ree fra).  It is not a constitutional case. This is the mistake made by conservative commentators on Fox News and One American News.

It is about whether  accommodations made in the ACA (aka Obamacare) for those seeking exceptions to the contraceptive program are adequate.  Or do these accommodations in fact become  burdensome as the plaintiffs claim.    In attempting to enforce the RFRA, could the court go as far as say anybody could opt out of any part of Obamacare, because in their minds, it conflicts with their religious beliefs? In doing so, what is slowly eroded is this notion of a standard set of benefits,  independent of the provider of the insurance.  Of course, this is exactly what those opposed to Obamacare want.

A lot of Supreme Court observers expect the court will divide 4-4 in which case, the lower court cases stand.  I believe it will be a 5-3 decision, with Justice Anthony Kennedy siding with the liberal group. It is possible that the decision will be 6-2, with both Roberts and Kennedy joining the liberal side. There is a final option to hold over the case,  in hopes that the Congress will approve a new justice.

We shall find out in June, 2016.

In the next few blogs, I hope to go a bit deeper into religious freedom.  It is crazier than you think!

Stay tuned,

Dave

 

 

 

 

 

 

 

Garland- Just going with the best

Ok- I got it wrong.  I looked over the 3 nominations on Obama’s Supreme Court short list- and thought it would be Sri Srinvassen, because he was young and outstanding in every respect.  Obama liked the oldest on the list- Merrick Garland, who edged out the competition based on years of experience.    Obama just went with the best.  And this is exactly what myriad of court watchers are saying.

The judicial system has a kind of ladder, and it’s tough to get to the top rung of the Chief Justice of the Appellate Court for the DC circuit.   To get there, you have to get the approval of both Republicans and Democrats.  Our system of congressional approval really supports more practical centralist type of judges.

But,  the Republicans have made this their holy war,  against a “liberal” judge, so Obama selected someone,  who in the past was acceptable to many of the Republicans’ top leadership, including John McCain, when he was appointed to the DC Appellate Court.

Garland is regarded by court watchers as a centralist.     Judge Andrew Napolitano who appears regularly on Fox News, stated this is the most conservative nominee the Democrats have put forward in the modern era.   It is also been stated that some Democrats in the Senate, may feel disappointed by Obama’s nomination because he did not nominate someone with more  liberal credentials.

Garland could  side with Chief Justice Roberts or Kennedy on court decisions, both of whom were nominated by Republicans.   He is likely to be a strong defender of 1st (freedom of speech and religion) and 5th amendment (prohibiting unreasonable searches) rights, as was Justice Scalia.

What is totally absurd is the notion, that by refusing to go ahead with a hearing on the nomination, that this allows “the people of the US” to decide on the nomination.  Somehow,  to obstruct the normal process of filling a vacancy on the Supreme Court, through refusing to hold hearings,  has been lauded by conservative republicans, as in consistent with our democratic ideals of our country.

Pragmatism is not a quality you hear often- but it is vital to the functioning of the Supreme Court.  The principle of stare decisis, means justices respect prior decisions as final.   This is why decisions are not overturned when new justices are appointed.

The people of the US can vote on many issues- but not Supreme Court judges.  And thank God for this.  We elect our representatives and leaders to make decisions for us.   The makes us a republic.  On choosing a Supreme Court justice, it should never come down to a popular judge- or we are all in serious trouble.

In fact, it was the late Justice Scalia, who said the public does not have a sufficient understanding of the law, to be able to follow the logic behind their decisions, which must follow the interpretation of laws and prior decisions.  So, the public can not make an inform decision on who would be best for the Supreme Court.  This is why we have a Senate Judiciary Committee.

 

The Congress can reduce the power of the Presidency, by obstructing the normal process of government, but in the end,  it makes government less able to function.  The #1 obstructionist, is Mitch McConnell, the Senator from Kentucky, and Majority Leader of the Senate.

Stay tuned,

Dave

 

 

Obama’s Supreme Court Nominee

Suppose they held a Miss America contest, and the plan was, just after crowning the winner, they were either going to push her off the stage or mug her as she was leaving the pageant.   That’s exactly what’s going to happen to Obama’s nomination.

Well,  I stated on Feb 18  that I thought Judge Jacqueline Nguyen was likely going to be Obama’s choice, but I thought it could go to Sri Srinivasan.  Based on recent leaks,   I now think Obama will nominate  Sri  Srinivasan.   I rule out Merrick Garland because he is 63 years old, and Paul Watford, because of prior Republican opposition in the Court of Appeals for the Ninth Circuit.  He was confirmed 61 to 34.

I also believe no hearing will take place.  If a hearing does take place, Republicans  will attempt to show the nominee is unqualified.  Ted Cruz would like the chance to tell the country that Obama has nominated the worst possible Supreme Court candidate ever.

The Republicans  will  not allow the nomination to go forward.   So, pushed off the stage, or mugged on the way out-  the Supreme Court will have 8 justices for at least a year, maybe longer.

It’s a terrible precedent.  It is not politics as usual- as it has never been done before.

Stay tuned,

Dave

 

 

 

 

Apple v. FBI

Skeleton Keys.

This is today’s hot story.  Let me summarize the problem.  A married couple in San Bernadino killed 14 people, seriously injured 22, and were subsequently killed by police in a shoot out, and their cell phone was captured. The FBI wants Apple to modify the operating system (iOS 8) on the phone to bypass security features, and  Apple refused.  The FBI is currently attempting to force Apple to comply through a court order.  Apple filed a motion to suppress the order.  Just about everyone thinks this case will end up in the Supreme Court maybe in 2017.  Nobody knows how important the contents of the phone might be, but the central issue is whether the government has the power, with a search warrant, to force Apple to create the bypass.

If an  older version Apple cellphone is stolen,  hackers can break in  using computer equipment  which will try millions of passwords. Brute force hacking has been around for decades.  The only thing that has really changed is how fast these programs can make  trial and error iterations because this information is electronically fed into the device.

In developing security protection, what Apple did not want, is to have a security system which would completely lockout the user who accidentally  enters a wrong password, multiple times.   So, the smart detection system must not inconvenience users in thwarting hackers.  So, here is how Apple implemented the security system based on their court filing:

“Cyber-attackers intent on gaining unauthorized access to a device could break a
user-created passcode, if given enough chances to guess and the ability to test
passwords rapidly by automated means. To prevent such “brute-force” attempts to
determine the passcode, iPhones running iOS 8 and higher include a variety of
safeguards. Id. ¶ 10. For one, Apple uses a “large iteration count” to slow attempts to
access an iPhone, ensuring that it would take years to try all combinations of a six character
alphanumeric passcode. Id. ¶ 11. In addition, Apple imposes escalating time
delays after the entry of each invalid passcode. Id. ¶ 12. Finally, Apple also includes a
setting that—if activated—automatically deletes encrypted data after ten consecutive
incorrect attempts to enter the passcode. Id. This combination of security features
protects users from attackers or if, for example, the user loses the device. ”

So, the FBI wants Apple to create up to 3 bypasses into the iOS 8 system. The optional automatic deletion of encrypted data is the most interesting,  as there must be some safeguards so users don’t accidentally  trigger this feature.  But, this feature allows the user to access a “sanitized” phone after forgetting a password.

Apple claims that these bypasses are significant code modifications.  From their description, I have my doubts. The “if activated” option of automatic sanitizing  the phone, is triggered after 10 failed attempts.  Suppose this is altered to a billion or 100 billion attempts, then the code remains but a parameter is changed.  Similarly,  embedded in the slowdown feature is a delay factor,  which could be set to zero to negate its effect. Or the large iteration count, could be reset to some huge number like a trillion, before it would be triggered.   Thus, it isn’t code changes per se, but values or parameters  within the code which would be changed.

All this is interesting, even to people like me, who are decades behind technology.  The appropriate analogy is the Apple phone includes a smart lock, which recognizes someone trying to pick the lock  and takes defensive measures.

The government’s case rests on the premise that Apple is the owner of all cell phones it sells,  as it is sold under a lease contract to its customer.   So, just as an apartment owner must open up a door when police come with a search warrant,  Apple has the same responsibilities.

If it takes additional tools to open up the door of an apartment, such as a crowbar, the owner still has responsibility to pry the door open.  Apple’s reply is  that any bypass code that it  created,  would not only allow access to the captured phone, but to any other Apple phone.  However,  it is likely that this part of the cellphone operating system which the FBI wants modified, is very well protected, so others outside of Apple can not access it.

Before iOS 8 deterrents, law enforcement agents were benefiting from the ability to open cellphones through brute force methods. This can occurs today only under when a search warrant has been.

The FBI could lose the case in the Supreme Court, because the “crow bar” analogy, doesn’t hold true.  The FBI  is telling Apple what it wants, but doesn’t really know what Apple by-pass procedures they have to write.   So, they aren’t saying “break in with a crow bar” but invent a crow bar so you can break in.” And amazingly, this is where First Amendment rights come in, as the government is demanding that Apple writes software.

The security features in the iPhone are like the Volkswagen software which detected when their cars were undergoing emissions testing and took (illegal) defensive measures.  Volkswagen got caught when university students were measuring emissions while driving.

If the FBI loses the case, it seems possible that  laws could be passed that would force  any company selling phones under a lease contract,  to make the contents of the phone accessible to law enforcement if a search warrant is issued.  I know this is likely to raise the ire of civil libertarians, but I think there are ways to ensure privacy and let law enforcement agencies do their job at capturing criminals.

But, this could end up a “cat and mouse” game, where only the amateurs get caught with incriminating cellphone  information.  The San Bernadino case will put other criminals  on high alert that their cellphone can and will be used against them or their cohorts in a court of law.  Drug dealers are probably very keen on improving their cellphone security.   Ways to quickly sanitize phones in case of arrest and  to avoid iCloud backups, are likely to be the next “security” precautions.

I don’t know how all this will eventually play out in the Supreme Court. I am kind of hoping that something can be worked out so the FBI can complete its investigation.

Apple’s Court Filing 

Stay tuned,

Dave

 

 

 

 

Love thy Enemy

This isn’t about Trump and Univision.  It is about Ted Cruz and the nagging Canadian birth question.

Before anybody starts to pick up stones,  let me say (I’m already ducking) that Ted Cruz was an American fom  the moment  he was conceived.   Let’s  at least get that out of the way.

Some very prominent lawyers and professors of law aren’t so convinced that someone born outside of the US meets the conditions to run for the president.  A case has never come before the Supreme Court, for their interpretation of “natural born” citizens.

As Laurence Tribe, a professor at law at Harvard, has written,  if this question ever comes before the Supreme Court,   the judges which are most likely to side with Cruz, are the liberals, which of course Ted Cruz hates.

The court isn’t divided politically- it is divided philosophically.   Those in the conservative camp,  tends to interpret the constitution   based on the text of the constitution (textualism) and what the founding fathers intent was (originalism). when the constitution was written.  They would apply these standard to interpreting the law.

The conservatives with their narrow focus, would ironically be Cruz’s worst nightmare, because there is  historical support for the contention, that what “natural born” means,  the person must be born within the territory of the US

If the case makes it to the Supreme Court,  it’s the liberals that will support Cruz because they tend to include more into the interpretation of what is written. They see the constitution as a “living document”  providing guidance but also factoring other considerations.  I also think Cruz should win, as a practical matter, because he been a citizen from the day he was born, just as all other citizens.  His situation is not uncommon,  as many American  families work abroad, and have children.   I think he would be a terrible president, but that’s up to voters, not the courts.

Laurence Tribe’s Comments

Stay tuned,

Dave

 

Who would want to be a SC nominee?

I think everybody has got this issue wrong.  They are either focused on who Obama will nominate or how Congress will make sure, the nominee isn’t confirmed. Nobody is thinking about the poor individual who will certainly either (a) Take a beating during the confirmation hearing, before the committee declares the nominee obviously unacceptable or (b) Prepare for a confirmation hearing that wouldn’t take place.

This is a nomination that is dead on arrival.  So,  I can’t imagine anyone wanting this job.  I mean  if you’re going through hell, there should be some reward at the end.  I don’t see it.

But, it’s not like you can draft someone to be a SC nominee.  “Hey you,  get dressed, you’re going to the confirmation hearings,  and we  have bandages ready and an ambulance on stand-by.”  Response, “You can’t make me go!”

I guess it is nice to be get called by President Obama, and hear, “You’re my man!” for one of the country’s top position.   At least, it used to be an honor.

Of course, we need a highly intelligent and  respected judge, who has served on the  Federal Appeals Court and is a  constitutional expert.   The nominee is likely to have argued cases in front of the Supreme Court.

The candidate will immediately be pillared by all Republican candidates.  “This nominee will continue to destroy the Constitution, just as the liberals have done in the past”, will be the charge leveled against the justice.   The scrutiny of the candidate will go far beyond legal opinions, and  include his family, his acquaintances,  his financial records and anything else that can be dredged up.

On top of that,  any nominee will, if hearings are conducted,  be asked questions about cases pending in the courts, which they can’t answer.   Any nominee will be accused of stonewalling the committee.

I really love the candor of Robert Gates confirmation hearing.  He writes, in his book Duty,

I remember sitting at the witness table listening to this litany of woe and thinking, What the hell am I doing here? I have walked right into the middle of a category-five shitstorm.  I was the first of many, many times I would sit at the witness table thinking something very different from what I was saying.

Robert Gates paid $40,000 to a legal form to fill out financial disclose form.   Even the slightest error could be blown out of proportion by someone who did not want to vote for him.  But, Gates got confirmed.  Obama’s nominee won’t.  It’s going to be pure  theater.

 

So, who does Obama want to feed to the wolves?  Jacqueline Nguyen will be the nominee.  She’s just too perfect!  She was confirmed to be on the ninth  appeals court judge, 91-3.

Jacqueline Nguyen

My second guess, is Sri Srinivasan. Another incredibly smart judge on the DC Court of Appeals.

Sri Srinivasan

Sri has really got a bit stronger credentials- as if this mattered.   If either accept the nomination,  I will still be wondering- why????

Stay tuned,

Dave

 

Justice Scalia’s Passing

There was an immediate outpouring of sadness and tributes to his character and accomplishments at Anthony Scalia’s passing.  The New York Times collected many of these along with their analysis of the immediate future of the Supreme Court:

New York Times Article 

“A lie can travel half way around the world while the truth is putting on its shoes”

Thanks to the internet, lies travel the world at the speed of light.  Justice Scalia’s passing occurred on the same date as the Republican debate.  Ted Cruz and Marco Rubio announced during an Republican debate, that President Obama would break an  80 year precedent, if he appointed  a Supreme Court justice during an election year.

No precedent exists.    Obama can not appoint justices,  he only nominate them and  the Senate approves them.  The New York Times shows Justice Kennedy was the last justice to be nominated during an election year.  Amy Howe, Editor of Scotusblog agrees- no precedent.

Scotusblog.org

Politifact also confirms this:

Politifact

No president has ever considered leaving it to the next president to select a Supreme Court justice.  Senate confirmation of any justice will be next to impossible, with the politicizing of the approval process.

On top of that, honoring a precedent,  Rubio insisted it would make the selection  more democratic.  Let the people decide.  If there is a justice that would absolutely cringe at this idea, it would be Justice Scalia.  He said numerous times, that because of the intricacies of the court cases,  99% of the population does not understand or appreciate the process.  They only see outcomes.  Decisions are based on laws, the Constitution and prior decisions made by the courts.

But, confirmations in the Senate have become increasingly politicized and both Republicans and Democrats should take blame for this.  Obama could nominate the brightest justice on the planet, and  his selection would never make it to confirmation hearings.   The Senate’s Majority Leader  Mitch McConnell  is establishing a new and dangerous precedent,  making it difficult for a president to carry out his legal obligations under the Constitution.

 

As the big pending  cases (limitations on abortion,  affirmative action case in Texas, Obamacare conflicts with religious freedom burdens, and immigration reform by executive action) are to be decided this term,   Justice Anthony Kennedy will continue to be the swing  vote,  but it will be different.  If he sides with the liberals, it will be a 5-3 victory.  If he sides with conservatives, it will be a 4-4 decision, and the appeals court decision will hold.  The Justices can decide to hold off a decision until their next term, hoping that a new justice will be confirmed by then.

More to come.

Stay tuned,

Dave