Wednesday, June 27, 2018
A San Diego federal judge has ordered immigration officials to reunite children and parents. In addition to barring the now suspended practice of separating children from families, Judge Dana Sabraw ordered that children under five be reunited with their parents within fourteen days and that parents of children of all ages be permitted to speak with them within ten days. Further the court order requires parents subject to deportation to leave with their children.
In what will no doubt be an oft quoted sentence from his opinion, Judge Sabraw said, " The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property." The administration's attitude expressed by Judge Sabraw is simultaneously arrogant as well as cavalier. Invoking property rights reminiscent of slave owners, the administration has not bothered to properly document the parental relationship of children in its custody. As Judge Sabraw noted, the Executive Order that terminated the process of separating children from parents made no mention of whether or how to reunite already separated children from the parents who brought them across the border.
"The facts set forth before the court portray reactive governance responses to address chaotic circumstance of the government's own making. They belie measured and ordered governance, which is central to the concept of due process
A status conference in the case is scheduled for July 6th.
Of note, the Plaintiffs in Ms. L; etal v. ICE were certified as a class, thus permitting the nationwide injunction. The injunction was issued on the same day that Justice Thomas opined on the validity of federal courts issuing nationwide injunctions in the case of Trump v. Hawaii. The Supreme Court refused to rule on the issue in Trump v Hawaii but the issue may not be capable of escape as the Ms. L case winds its way to that court.
Monday, February 6, 2017
Acting Attorney General Sarah Yates last week instructed Justice Department lawyers not to defend the Trump Administration's executive orders on immigration. By that night, she was fired. Immediately following, the order was rescinded.
Yates' letter was eloquent and clear in outlining her function within the government and how it differs from the role of White House legal counsel.
Yates' refusal to comply with orders contrary to accepted legal and human rights practice echoes the Justice Department's response to White House directives during Watergate. Then, White House disregard for the rule of law was rebuffed by Attorney General Elliot Richardson and others within Justice, leading to their firing. Those firings are known as the Saturday Night Massacre.
Just as Martha Davis' post noted Justice Scalia's remark that the Korematsu facts could happen again, we are reminded that executive attempts to dismantle fundamental legal structures is being repeated.
At the DC Women's March, Gloria Steinem spoke of President Trump's mental health problems. We now know that President Nixon was delusional and suffered from the same grandiosity as President Trump. But this time we were forewarned.
Sunday, July 3, 2016
Elie Wiesel was our conscience and our memory of the Holocaust. He was voice for millions of the murdered because of the hatred and madness of one leader and his supporters. But also the Jewish citizens died due to the overwhelming silence of others. It is both easy and difficult to understand the fear of speaking out when neighbors are disappearing. Consequences of disagreeing with Hitler, as with other dictators, were and are severe and usually fatal. But that begs the question on how dictators ascend to national control in the first instance.
Anyone who read Night was no doubt haunted by the inhumanity. But one of the lessons Mr. Wiesel taught us was not to wait in confronting hateful conditions as they are developing. Politics rooted in hate can be powerful and, if not curbed, lead to the sort of unimaginable suffering that Mr. Wiesel endured. Not confronting hatred when it first appears permits inhumanity to grow. Failure to confront hatred opens the door for demagogues.
Tuesday, November 24, 2015
As discussed by both Martha Davis and JoAnn Kamuf Ward earlier, countries are struggling with the refugee crisis. But U.S. citizens have responded poorly. While the administration offered of aid by way of admitting Syrian refugees, many individuals in the U.S. responded to that proposal with unkindness. It appears that many Americans lack the fundamental empathy necessary to care for those who struggle.
While some of the anti-immigrant, anti-Muslim resolve may be based in fear, that does not account for all of the immigration backlash. Much anti-immigrant sentiment originated long before current events. Anti-immigrant hatred pre-dates both the Syrian migration and the Paris attacks.
Playing off of the poverty and under-education and the consequent limited opportunities of many of their constituents, along with the arrogance and narcissism of some wealthy, Donald Trump and Ben Carson revel in the chaos that erupts after their increasingly aggressive attacks on those who seek safety and a better life in the United States. But the politics of exclusion are not new. The U.S. has turned away those desperate to escape brutality before. The current situation reminds me of U.S. refusal to accept European Jewish refugees escaping Hitler's scourge who arrived at our shores on the U.S.S. St. Louis. That shame of that particular act of cruelty has not diminished with time. In the current instance, however, the state is not the culprit. But others who seek power are.
As JoAnn Kamuf Ward reminded us, we can do better. We have a chance for a do over. But so far many Americans refuse to consider, let alone learn from our historical regrets. Once again, I fear that historians will record us as turning our backs on those who are at risk of dying at the hands of their governments. All because some who seek power lack both the courage and dedication necessary to seek the common good.
Monday, November 23, 2015
JoAnn Kamuf Ward, Lecturer-in-Law & Associate Director, Human Rights in the U.S. Project, Human Rights Institute, Columbia Law School
Across Europe, countries are deciding how to respond to the current humanitarian refugee crisis and balance that response with concerns of safety and security (or not). As Martha Davis reported here, in Sweden, history is playing an important role in shaping the response.
In the U.S., we face some of the same challenges. It is impossible to deny the overwhelming sense that nowhere is safe. But the quest for safety and security should not be driven only by fear. As the NY Times Editorial Board wrote on Wednesday,
It is impossible to prevent all violence by hate-filled sociopaths and ideologues who are willing to die, and confronting the extremist threat from ISIS and other terrorist groups will require many strategies. But none of them require demolishing the values that are the heart of democratic societies, including the free flow of people and information. Banning all refugees, as some in America and Europe are demanding, would be an ineffective and tragic capitulation to fear. Governments should improve border controls and vigilance, but expanding wiretapping and other surveillance in free societies must be resisted.
This is a sentiment echoed by many, including Washington Governor Jay Inslee, one of the few state governors who has publicly committed to welcoming Syrian refugees. Thirty one governors have threatened to exclude Syrian refugees (the legality of this gubernatorial action is debunked here and here).
In an NPR interview Governor Inslee discussed his attempt to do better than the U.S. has done in the past. In 1942, two months after the attacks on Pearl Harbor, President Roosevelt issued an executive order that set the stage for the forced relocation and internment of more than 100,000 Americans of Japanese ancestry. This broad and overzealous response was motivated by concerns about safety and security married with fear, as well as misunderstanding, racism, and discrimination.
The Supreme Court’s Korematsu decision, which ruled that the exclusion and internment of Japanese American was constitutional, has never been overturned. Yet the Federal government has renounced its actions and the decision. In 1988, the United States, under President Reagan enacted the Civil Liberties Act. The Act offered a much needed apology, as well as reparations for individual survivors of internment. It also stated that the actions taken by the United States constituted “a grave injustice.” And further, that the U.S. response was “motivated by racial prejudice, wartime hysteria, and a failure of political leadership."
But in this time of deep polarization and politicization, there is not even consensus on lessons to be drawn from Japanese internment. The same day as the Inslee interview, Mayor Bowers of Roanake, Virginia, cited the actions of President Roosevelt as justification to halt assistance to Syrian refugees in his city. The Washington Post quickly offered its own critique of the Mayor’s position, as did a number of other news outlets. With such disparate views of the past at play, it is hard to see the path forward.
In the days ahead, let us recall one fact: overzealous, reactionary responses that are driven only by fear have a real human cost. John Tateishi, who spent his childhood years in an internment camp, led efforts to secure redress for the victims of Japanese internment to ensure the same mistakes were not repeated in the future. He drew inspiration from the Japanese saying “kodomo no tame ni” (which translates to “for the sake of the children.”)
Certainly, the responses we choose today will impact not only us, but our children.
Note: On Friday Mayor Bowers apologized for his remarks, after facing sharp criticism.