Category Archives: Current Affairs

State AGs and former US Attorneys call for reversal of zero-tolerance policy [text]

Current and former state and federal prosecutors are calling on Attorney General Jeff Sessions to reverse his zero-tolerance policy targeting families who have illegally entered the United States’ southern border. Here’s the text of the State AGs letter and here’s the text of the former US attorneys. — Joe

Moore’s Undocumented: Immigration and the Militarization of the United States-Mexico Border

Here’s the blurb for John Moore’s Undocumented: Immigration and the Militarization of the United States-Mexico Border (PowerHouse Books, Mar. 27, 2018):

John Moore has focused on the issue of undocumented immigration to the United States for a decade. His access to immigrants during their journey, and to U.S. federal agents tasked with deterring them, sets his pictures apart. Moore has photographed the entire length of the U.S. southern border, and traveled extensively throughout Central America and Mexico, as well as to many immigrant communities in the United States. His work includes rare imagery of ICE raids, mass deportations, and the resulting widespread fear in the immigrant community. For its broad scope and rigorous journalism, Undocumented: Immigration and the Militarization of the United States-Mexico Border is the essential record on the prevailing U.S. domestic topic of immigration and border security.

Recommended. — Joe

Pew Survey: Distinguishing Between Factual and Opinion Statements in the News

A new Pew Research Center survey examines whether members of the public can recognize news as factual – something that’s capable of being proved or disproved by objective evidence – or as an opinion that reflects the beliefs and values of whoever expressed it. Survey results include the politically aware, digitally savvy and those more trusting of the news media fare better; Republicans and Democrats both influenced by political appeal of statements.

H/T Gary Price’s InfoDocket post. — Joe

Passports in the Time of Trump

Leti Volpp’s Passports in the Time of Trump, 25 Symploke: Theoretical, Cultural and Literary Scholarship 155 (2017) “examines the public reaction to President Trump’s three executive orders on immigration (“Protecting the Nation from Foreign Terrorist Entry,” “Enhancing Public Safety in the Interior of the United States,” and “Border Security and Immigration Enforcement Improvements”) from their January 2017 inception through summer 2017. While the latter two executive orders arguably threaten the most dramatic impact, the first executive order elicited the strongest outcry. Charting the legal shifts presaged and engendered by these three orders, as well their human costs, I posit several reasons for the difference in reaction.

“While there are many factors at work, underlying the muted reaction to the border and interior orders is a tacit acceptance of the fact of deportation, in particular of those considered disposable. This acceptance is made clear by examining the reaction to deportations under President Obama and under President Trump (outcry against deportations under Trump seem more about Trump than about deportations). It appears in the monikers for border and interior orders (“The Wall” and “Sanctuary Cities”) which emphasize concern for U.S. taxpayers and not for the many other ways these two orders drastically change life for immigrants. It is also evident even in the proposal of a radical ecotopia submitted to the design competition for Trump’s border wall, which would create a new, independent co-nation in the US/Mexico borderlands – but which would limit free movement to “law-abiding North American citizens.” Deportation is engrained in our vision of the “nation of immigrants”; deportation is part of our everyday.”

H/T ImmigrationProf Blog. — Joe

DOJ’s Zero-Tolerance Policy for Criminal Illegal Entry [text]

On April 6, 2018, Attorney General Jeff Sessions notified all U.S. Attorney’s Offices along the Southwest Border of a new “zero-tolerance policy” for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien. Here’s the DOJ AG memo. — Joe

Manafort ordered to jail after witness-tampering charges

Quoting from the Washington Post: “You have abused the trust placed in you six months ago,’’ U.S. District Court judge Amy Berman Jackson told Manafort. “The government motion will be granted and the defendant will be detained.” — Joe

A Constitutional Role Morality for the Trump Era and Beyond

From the abstract for Neil Siegel’s Sustaining Collective Self-Governance and Collective Action: A Constitutional Role Morality for the Trump Era and Beyond, Georgetown Law Journal, Forthcoming:

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution whose vindication requires more than compliance with legal rules: securing the American conception of democracy as collective self- governance and creating a reasonably well-functioning federal government. Given its close connection to those purposes, a role morality for presidents and members of Congress is appropriately described as constitutional, not merely political. This Article then proposes some rhetorical, procedural, and substantive components of constitutional role morality, including a commitment to consult the political opposition before taking important actions and a rebuttable presumption in favor of moderation and compromise. The Article also explains how different actors in the American constitutional system should execute their professional responsibilities if they are to make it more, rather than less, likely that such a role morality will eventually be adopted and maintained. A final part anticipates objections, including the concern that the vision offered here faces significant implementation problems.

— Joe

Did the FBI behave in a politically motivated way when dealing with the Clinton email scandal? DOJ IG report [text]

The DOJ’s Inspector General announced in January 2017 that his office would examine allegations of misconduct surrounding former FBI Director James Comey’s handling of the probe into Hillary Clinton’s private email server. The report says Comey “deviated” from FBI and Justice Department procedures in handling the probe into Hillary Clinton, damaging the agencies’ image of impartiality even though he wasn’t motivated by politics. Here’s the 500+ page report.  — Joe

CRS report on the June 12th Trump-Kim Jong-un Summit

From The June 12 Trump-Kim Jong-un Summit (IN10916, June 12, 2018):

The summit highlighted the change from 2017, when escalating tensions between North Korea and the United States led to increasingly tight U.S. and international sanctions and fears of a military conflict. In addition to the reduction of tensions, both sides can point to specific gains that have occurred since early 2018.

U.S. gains include:

  • Kim Jong-un’s public statements committing to begin a process of negotiating complete denuclearization;
  • North Korea’s moratorium on nuclear and missile testing while dialogue continues;
  • North Korea’s apparent destruction in May of its Pyunggye-ri nuclear test site before international journalists;
    Kim’s statement that he would destroy a missile test site; and
  • North Korea’s release of three U.S. detainees and agreement to restart the POW/MIA recovery program, which the United States suspended in 2005.

DPRK gains include:

  • Breaking free from its diplomatic isolation. Following Trump’s March 2018 announcement that he would hold a summit, Kim has re-established friendly relations with China and Russia, and held two summits with South Korean President Moon;
  • Boosting Kim’s legitimacy and prestige by using nuclear and missile advancements to obtain a meeting with the U.S. President as an equal;
  • Loosening enforcement of sanctions against the DPRK economy;
  • An expectation of future foreign investment and economic and energy assistance if it denuclearizes;
  • A U.S. promise to provide “security guarantees;” and
  • Trump’s announcement of a unilateral cessation of U.S.-South Korean military exercises and his statement that he hopes to withdraw all U.S. forces from South Korea.

— Joe

Haider’s Mistaken Identity: Race and Class in the Age of Trump

Here’s the blurb for Asad Haider’s Mistaken Identity: Race and Class in the Age of Trump (Verso, May 15, 2018):

Whether class or race is the more important factor in modern politics is a question right at the heart of recent history’s most contentious debates. Among groups who should readily find common ground, there is little agreement. To escape this deadlock, Asad Haider turns to the rich legacies of the black freedom struggle. Drawing on the words and deeds of black revolutionary theorists, he argues that identity politics is not synonymous with anti-racism, but instead amounts to the neutralization of its movements. It marks a retreat from the crucial passage of identity to solidarity, and from individual recognition to the collective struggle against an oppressive social structure.

Weaving together autobiographical reflection, historical analysis, theoretical exegesis, and protest reportage, Mistaken Identity is a passionate call for a new practice of politics beyond colorblind chauvinism and “the ideology of race.”

— Joe

A peace treaty with North Korea?

A Peace Treaty with North Korea? (R45169, April 19, 2018) “explores the possiblity of concluding a peace treaty with North Korea. Also known as a peace settlement or peace mechanism. North Korea always wants bilateral negotiations with the United States, but a peace treaty would require China, the other signator of the armistice that ended the Korean War. The United Nations Command, or UNC, would also be involved in negotiations. In the Six-Party talks, this idea was explored but fell apart, as it was in Four-Party Talks. Japan and Russia would also be concerned with any peace settlement. South Korean president Moon Jae-in has supported the idea and will push at the upcoming Inter-Korean summit. At stake is North Korea’s nuclear and missle programs and in what sequence the DPRK would denuclearize. Which comes first: treaty or denuclearization? Trump will hold a summit with Kim Jong-un soon, where this could be broached. China and Russia want parallel tracks to denuclearize and find a peace settlement. A question is what the impact would be on U.S. alliances in the region, including the presence of the U.S. military and the troops stationed in the region. Should a peace treaty be linked to North Korea’s human rights record or other factors? How closely should it be coordinated with South Korea? What is the U.S. and DPRK credibility for a deal?”

— Joe

Amar’s Federalism Friction in the First Year of the Trump Presidency

Here’s the blurb for Vikram D. Amar’s Federalism Friction in the First Year of the Trump Presidency, 45 Hastings Constitutional Law Quarterly ___ (2018):

Over the last twelve months or so, federalism principles have been repeatedly invoked by state and local governments in a range of lawsuits and legislative proposals seeking to block or temper federal policy initiatives emanating from the new Administration of President Donald Trump. In this essay, I hope to sketch out a few of the more high-profile federalism flashpoints that have emerged over the past year or so, and offer some preliminary assessments of some of the decisions that lower courts (and legislative bodies) have been rendering in some of them. I try to highlight areas of agreement and areas of divergence. And even as to some areas of agreement, I try to explore plausible arguments to be made that the Supreme Court will (and in some cases perhaps should) see things differently as these disputes begin to make their way up the appellate ladder in the coming months and years.

— Joe

Singapore Summit Joint Statement [text]

Here it is. — Joe

Overview of the Federal Government’s Power to Exclude Aliens: CRS Report

From the introduction to Overview of the Federal Government’s Power to Exclude Aliens (R44969 Sept. 27, 2017):

The Supreme Court has determined that inherent principles of sovereignty give Congress “plenary power” to regulate immigration. The core of this power—the part that has proven most impervious to judicial review—is the authority to determine which aliens may enter the country and under what conditions. The Court has determined that the executive branch, by extension, has broad authority to enforce laws concerning alien entry mostly free from judicial oversight. Two principles frame the scope of the political branches’ power to exclude aliens. First, nonresident aliens abroad cannot challenge exclusion decisions because they do not have constitutional or statutory rights with respect to entry. Second, even when the exclusion of a nonresident alien burdens the constitutional rights of a U.S. citizen, the government need only articulate a “facially legitimate and bona fide” justification to prevail against the citizen’s constitutional challenge.

— Joe

PBS creates giant timeline of everything Russia, Trump and the investigations

Connect the growing number of dot using a timeline created by PBS. Interesting. — Joe

A catalog of arms control and nonproliferation treaties compilied by CRS

From Arms Control and Nonproliferation: A Catalog of Treaties and Agreements (RL33865, May 8, 2018):

Arms control and nonproliferation efforts are two of the tools that have occasionally been used to implement U.S. national security strategy. Although some believe these tools do little to restrain the behavior of U.S. adversaries, while doing too much to restrain U.S. military forces and operations, many other analysts see them as an effective means to promote transparency, ease military planning, limit forces, and protect against uncertainty and surprise. Arms control and nonproliferation efforts have produced formal treaties and agreements, informal arrangements, and cooperative threat reduction and monitoring mechanisms.

— Joe

Dark money and political sovereignty

Ciara Torres-Spelliscy’s Dark Money As a Political Sovereignty Problem, 28 Kings Law Journal 239 (2017): “Since the U.S. Supreme Court’s decision in Citizens United v. FEC in 2010, over $800 million of untraceable dark money has been spent in American federal elections. This could include illegal foreign donations. This short article explores why dark money in American elections presents a political sovereignty problem.” — Joe

Rosenzweig on the “mildly probative evidence” for the Manafort tampering allegations

On Lawfare, Paul Rosenzweig took a deep dive into the special counsel’s tampering allegations finding “I think that the special counsel’s allegations of witness tampering are rather … thin. The FBI agent’s declaration in support of the allegations is long on detail about what Manafort and the “Hapsburg Group” did before the elections and short on information about the tampering allegation itself. … Mueller is asking the judge to jail Manafort on the basis of one call and two texts and imputing the more incriminating statements of Person A to Manafort without telling us why we should. Perhaps the case will get stronger at the hearing. But on the limited record before us, it is plausible to be sure (and maybe even true) but it still isn’t a slam dunk.”

A federal court judge set June 8th as the deadline for Manafort’s attorneys to respond to tampering accusation and set a hearing on the matter for June 15th. For details, read The Manaford Tampering Allegations, Lawfare, June 6, 2018. — Joe

UN human rights commissioner condemns Trump Administration family separation policies

Spokesperson for the UN High Commissioner for Human Rights Ravina Shamdasani yesterday issued the following statement about the Trump administration’s policy of separating immigrant families apprehended by immigration officers:

We are deeply concerned that the zero tolerance policy recently put in place along the US southern border has led to people caught entering the country irregularly being subjected to criminal prosecution and having their children – including extremely young children -taken away from them as a result.

The practice of separating families amounts to arbitrary and unlawful interference in family life, and is a serious violation of the rights of the child. While the rights of children are generally held in high regard in the US, it is the only country in the world not to have ratified the UN Convention on the Rights of the Child. We encourage it to accede to the Convention and to fully respect the rights of all children.

The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles. The child’s best interest should always come first, including over migration management objectives or other administrative concerns. It is therefore of great concern that in the US migration control appears to have been prioritised over the effective care and protection of migrant children.

Children should never be detained for reasons related to their own or their parents’ migration status. Detention is never in the best interests of the child and always constitutes a child rights violation.

Information from various sources suggests that several hundred children have been separated from their families since last October. The practice of separating children from their parents is being applied to both asylum-seekers and other migrants in vulnerable situations, and we note that the American Civil Liberties Union has brought a class action case on behalf of hundreds of parents who have been forcibly separated from their children.

The majority of people arriving at the U.S.’s southern border have fled Honduras, Guatemala and El Salvador – in many cases either because of rampant insecurity and violence, or because of violations of a range of other rights, such as health, education, and housing.

The US should immediately halt this practice of separating families and stop criminalizing what should at most be an administrative offence – that of irregular entry or stay in the US.

We call on the US authorities to adopt non-custodial alternatives that allow children to remain with their families and fulfil the best interests of the child, their right to liberty and their right to family life.

H/T to Immigration Prof Blog. See also, Law and Farce: The Forced Separation of Families on Take Care Blog. — Joe

Using legal ethics to resist Trumpism

From the abstract of Brian Sheppard’s The Ethics Resistance (May 15, 2018):

Legal ethics complaints have been filed against several of the high-ranking lawyers in the Trump Administration. While individual complaints have caught the public eye, the collective movement to use legal ethics to resist Trumpism has escaped attention. This is not altogether surprising: legal ethics rules have not historically been an attractive tool for political change. Perhaps, desperate times have called for desperate measures.

This “Ethics Resistance” will face significant opposing forces. Legal ethics complaints seldom result in punishment. Further, the agencies that are asked to investigate these high-profile and controversial matters will not be eager to leave their comfort zone; they are accustomed to complaints from clients who are unhappy with their lawyers over straightforward matters like unreturned phone calls or high fees. There will also be loud dissenting voices from those who will see the movement as the weaponization of a tool designed for the modest task of lawyer self-governance. Finally, the complaints will have to navigate between powerful constitutional protections of lawyer speech and federal power.

But we should not dismiss this movement simply because it is unusual or challenging. The wisdom of the Ethics Resistance can only be judged after we understand its distinctive qualities and consider how they further or hinder our legal, institutional, and pragmatic interests.

In this Article, I undertake that analysis and conclude that the movement has the capacity to be legally permissible, institutionally sound, and prudent. I further offer a list of best practices for future complaints.

— Joe