Topic: Law and Civil Liberties

State-Sponsored Visas Are Constitutional

Last week, Senator Ron Johnson (R-WI) introduced the State Sponsored Visa Pilot Program Act of 2017. Senator John McCain (R-AZ) is an official co-sponsor. If enacted, this bill would create a flexible state-sponsored visa system for economic migrants whereby states would regulate the type of visas and the federal government would handle admissions and issue the actual visas. Representative Ken Buck (R-CO) plans to introduce a companion version in the House in the near future. 

This is an innovative bill but we have encountered one persistent question from conservatives, libertarians, and others who are sympathetic to the idea of immigration federalism: Is a state-sponsored visa constitutional? 

The state-sponsored visa is perfectly consistent with the current migration system. The Johnson-Buck bill does not actually end federal control of migration but it merely creates a visa category whereby the states select the migrants through whatever processes they establish. The federal government is in full control of visa issuance and admission at ports of entry. Thus, states would be acting as sponsors on behalf of migrants whom they represent in their states in the same way that they currently sponsor foreign-born students at state universities and other workers in their capacity as employers.

In 2014, Brandon Fuller and Sean Rust authored a policy analysis for Cato that explored how a state-sponsored visa program could operate in the United States. They wrote a section addressing the constitutionality of such a program:

Historically, the Supreme Court has interpreted Congress to have “plenary power” over immigration, generally giving deference to the political branches of the federal government as an extension of the Naturalization Clause under Article 1, section 8, clause 4, which gives Congress the power “To establish an uniform Rule of Naturalization.”[1] Under current interpretations, this gives Congress the sole power to establish naturalization guidelines. However, Congress can also allow states to be involved in immigration policy in areas besides naturalization, such as managing a state-based visa within federal guidelines. Some immigration policies, with the exception of naturalization, can be partly devolved to the states within a range of powers permitted by the federal government.

The recent case of Arizona v. the United States, which decided the constitutionality of Arizona’s strict immigration laws, reiterates the point that states are allowed to participate in immigration policy and enforcement, but only within the scope permitted by the federal government.[2] In debating the case of Arizona v. United States, Peter Spiro, an immigration law scholar at Temple University’s Beasley School of Law, wrote, “[I]n Arizona, the Supreme Court constricted the possibilities for unilateral state innovation on immigration, both good and bad. That does not stop the federal government from affirming state discretion.” A state-based visa program does just that—allowing states to participate in the selection of immigrants under guidelines permitted by the federal government which is consistent with current interpretations of the Supremacy Clause and the plenary power of the federal government in the matter of immigration.

It is also important to note that U.S. law defines a nonimmigrant visa holder as “an alien who seeks temporary entry to the United States for a specific purpose,” and the federal government may set conditions in accordance with this purpose. For example, in the current immigration system a foreign entrant may be required to be attached to a singular petitioning employer under a number of employer-based non-immigrant visas, such as the H-1B. Like holders of employment-based visas, state-based visa holders would be nonimmigrants with a temporary right to live and work in the United States and an option to pursue permanent residency. As such, the state-based system is simply a variation on the condition being attached to the foreign entrant.

Trump’s First Slate of Lower-Court Judges Is Big League

Adam Liptak reports that President Trump is announcing 10 lower-court judicial nominees (so far only District Judge Amul Thapar’s elevation to the Sixth Circuit was the only nomination besides that of Justice Neil Gorsuch). Jonathan Adler, who appeared with me Saturday on a panel at Cato’s 40th anniversary celebration, is quoted as saying that they’re “ ‘incredibly strong nominees’ who were within the judicial mainstream and should ‘have an intellectual influence on their courts.’” As they say in Congress, I wish to associate myself with that analysis.

With this excellent slate, Trump continues fulfilling his campaign promise—perhaps his most important one, in terms of securing the Republican coalition—regarding judicial nominations. For example, the two state justices who were on the potential Supreme Court list, Joan Larsen and David Stras, are engaged jurists who will make terrific circuit judges. Kevin Newsom is a serious lawyer and public servant who will serve the nation well. Pacific Legal Foundation’s Damien Schiff, with whom I’ve worked on many cases, is an inspired pick for the Court of Federal Claims.

The main person missing from this first list of nominees is Justice Don Willett of the Texas Supreme Court, who was also on the SCOTUS list and merits appointment to the Fifth Circuit. That would definitely be a bigly move. Of course, if some grand bargain is planned is where two other Texans are named to the Fifth Circuit openings and Willett is held in reserve for the next Supreme Court vacancy, I’ll take that artful deal.

In any case, let’s hope there’s more where this came from.

Religious-Liberty Executive Order Is Small Beer, But Good Beer

The executive order that President Trump signed today doesn’t go as far as some hoped and others feared, mainly putting a thumb on the scales for future regulatory and enforcement actions. Its three main parts are as follows:

  1. Declares protecting religious freedom to be executive-branch policy, underlining an intent “vigorously enforce” the law’s “robust protections for religious freedom.”
  2. Instructs the Treasury Department effectively not to enforce the Johnson Amendment – which prohibits nonprofit organizations from endorsing or opposing political candidates – against religious organizations.
  3. Directs the Secretaries of Treasury, Labor, and Health & Human Services to issue new regulations that “address conscience-based objections” to Obamacare’s preventive-care mandate.

All of these are salutary, but none are earth-shattering. The IRS, which ultimately answers to Treasury Secretary Steve Mnuchin, already has vast discretion in enforcing the Johnson Amendment. HHS also has broad authority over how and against whom to apply the preventive-care mandate, but its freedom of action has already been restricted in several ways by the Supreme Court’s rulings in Burwell v. Hobby Lobby and Zubik v. Burwell (a.k.a. the Little Sisters of the Poor case) – and Secretary Tom Price were already expected to accommodate the religious nonprofits in a way the Obama administration refused to.

So all this move really does is signal the direction of executive policy preferences, which at the margin will lead agencies to implement federal statutes in a way that’s more solicitous of the freedom of religion, expression, and conscience. That’s a good thing, and a welcome change from the Obama years, but it’s not a radical (or any) change in the law. 

Can Virginia Require a Church To Permit Breast-Feeding in the Pews?

In 2015, following the lead of many other states, Virginia passed a “law that says women have a right to breast-feed anywhere they have a legal right to be,” as the Washington Post reports. The law provides “no exemption for religious institutions,” as well as no quarter, it would seem, for owners’ ordinary rights to set terms and conditions when they invite visits from the general public. Now a mother and her attorney say Summit Church in Springfield, in the D.C. suburbs, had no right to ask her to use a private room after she began feeding her baby without a cover during a sermon.

Should Annie Peguero, of Dumfries, Va., press a claim in court, she might have to contend with Virginia’s version of the Religious Freedom Restoration Act, which provides in relevant part (h/t Ann Althouse): “No government entity shall substantially burden a person’s free exercise of religion even if the burden results from a rule of general applicability unless it demonstrates that application of the burden to the person is (i) essential to further a compelling governmental interest and (ii) the least restrictive means of furthering that compelling governmental interest.” But since not all states have a version of RFRA—and particularly since, if the Post’s readers are typical, a large sector of polite opinion is taking Ms. Peguero’s side and appears to see nothing wrong with applying such laws to churches in Summit’s position—it seems likely that this will not the last such claim. 

Personally, I’m fine with public breast-feeding no longer being classed as an automatically shocking thing. But why is government dictation of how a church may arrange its worship services no longer classed as an automatically shocking thing?

[cross-posted and adapted from Overlawyered]

Police Shootings

Police shootings are back in the news. Michael Slager has pleaded guilty to federal charges involving the killing of Walter Scott. Federal officials have declined to bring charges against the officers involved in the shooting death of Alton Sterling. Meanwhile Texas officer Roy Oliver has been fired in the wake of the shooting death of 15 year old Jordan Edwards.

Each shooting incident has to be considered separately to take account of all the surrounding circumstances. There are a range of possibilities—from self-defense on the part of the officer, to tragic accident or mistake, to manslaughter or even first degree homicide. To ensure just outcomes, one of the most important things is to have independent, impartial investigations whenever there is a questionable shooting, especially where someone is killed or injured. Preferably, this will be done by a completely separate police department or the state attorneys general office, rather than the federal government. Another best practice for police shootings involves transparency. Police departments should identify the shooter and disclose his or her record, such as previous involvement in shootings or previous lawsuits alleging wrongdoing. Authorities should also make videos available. Mayor Rahm Emanuel tried to make the Lacquan McDonald case go away with a quiet legal settlement. It was only when a reporter went to court to seek the release of the video that the scandal was exposed and real movement for police reform could begin. 

For related Cato work, go to our police misconduct web site. Still more here, here, and here.

MacDonald, Trump, and Criminal Justice

In a recent article for City Journal titled, “How Trump Can Help the Cops,” Heather MacDonald offers about a dozen recommendations to the White House.  In this post, I want to scrutinize a few of those proposals and some of the arguments behind them.

Let me begin, however, by saying that Heather MacDonald was recently threatened by a crowd of protestors (I use that term very loosely here) while visiting a college campus to deliver a lecture.  That was outrageous and inexcusable.   I have met Ms. MacDonald several times, and while we have some strong disagreements on certain subjects, she has always been friendly and courteous.  She holds strong views and makes forceful arguments, but her claims should be answered with better arguments, not intimidation.  As many others have already noted, it is a sad commentary on the state of our universities that such incidents keep happening.  (Thanks to Harvey Silverglate and his colleagues for what they do at FIRE).

Returning now to MacDonald’s article, she says “Sanctuary cities, counties, and states must be severely penalized. These scofflaw jurisdictions, numbering about 300, refuse to cooperate with Immigration and Customs Enforcement (ICE) efforts to deport convicted illegal-alien criminals.”  She continues, “Over just one week in late January 2017, ICE found 206 criminal aliens who had been released back to the streets in defiance of a detention request.”  Okay, so far this is the standard public safety argument against sanctuary cities.  But here’s the claim that is problematic: “Such disobedience of lawful federal requests undermines the constitutional system.”  This is very misleading.

Last week’s ruling, County of Santa Clara v. Donald J. Trump, summarized the law succinctly:

 

An ICE civil detainer request asks a local law enforcement agency to continue to hold an inmate who is in local jail because of actual or suspected violations of state criminal laws for up to 48 hours after his or her scheduled release so that ICE can determine if it wants to take that individual into custody. See 8 C.F.R. § 287.7; Neusel Decl. ¶9; Marquez Decl., Ex. C at 3 (SC Dkt. No. 29-3). ICE civil detainer requests are voluntary and local governments are not required to honor them. See 8 C.F.R. § 287.7(a); Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) (“[S]ettled constitutional law clearly establishes that [immigration detainers] must be deemed requests” because any other interpretation would render them unconstitutional under the Tenth Amendment). Several courts have held that it is a violation of the Fourth Amendment for local jurisdictions to hold suspected or actual removable aliens subject to civil detainer requests because civil detainer requests are often not supported by an individualized determination of probable cause that a crime has been committed. See Morales v. Chadbourne, 793 F.3d 208, 215-217 (1st Cir. 2015); Miranda-Olivares v. Clackamas Cnty., No. 3:12-cv-02317-ST, 2014 WL 1414305, at *9-11 (D. Or. Apr. 11, 2014). ICE does not reimburse local jurisdictions for the cost of detaining individuals in response to a civil detainer request and does not indemnify local jurisdictions for potential liability they could face for related Fourth Amendment violations. See 8 C.F.R. § 287.7(e); Marquez Decl. ¶¶ 21-15 & Exs. B-D.

By using the term “request,” MacDonald seems to concede that ICE detainers are not lawful orders.  The requests are voluntary.  And yet MacDonald uses the word “disobedience” to describe jurisdictions that choose to decline some requests from ICE.  Again, this is quite misleading.  Let’s say one of my neighbors knocked on my door and said he had changed his mind about hosting a party for his son’s soccer team and wanted to know if I would be willing to host the 30 players and their parents in my home instead.  Let’s say that I resisted the temptation to close the door in his face, but merely declined the peculiar, but lawful request.  Would anyone say that I was disobedient to my neighbor’s lawful request?  No—because disobedient means a refusal to obey a rule or lawful command.  If a homeless person asks you for $10 and you walk on by, would MacDonald say that you were “disobedient” to the homeless person’s lawful request?  I doubt it—and for the same reason it is wrong to say that sanctuary cities and counties are disobedient.  (MacDonald does not explain her additional claim that that by opting to decline an ICE request, cities would be “undermining our constitutional system.”  As the passage above notes, cities might well be violating the Constitution by keeping a person locked up without probable cause.)

No Regulation by Amicus Brief

Congress passed the Fair Labor Standards Act (FLSA) in 1938 to regulate certain employment practices between employers and employees. In order to put the law into effect, Congress delegated authority to the Department of Labor (DOL) to enforce the statute’s provisions. It’s a fundamental legal principle, however, that an executive-branch agency may only regulate those provisions that Congress has actually put into its authorizing statute. Where Congress has not address a certain practice, the agency has no authority to regulate and the practice is presumptively legal.

Fast forward almost 80 years. E.I. Du Pont De Nemours and Co. (better known as DuPont), following standard industry practice, paid their employees for otherwise noncompensable meal breaks, using that compensation as credit towards the time employees spent performing certain work duties (especially “donning and duffing” special clothing and gear) before and after their shifts. The employees sued DuPont in federal court, arguing that the FLSA forbids this type of crediting and that they must be paid overtime pay for the donning/duffing time.

The district court disagreed, finding that the statute was silent about the practice and so DuPont had done nothing illegal under the FLSA. On appeal, the U.S. Court of Appeals for the Third Circuit invited DOL to file an amicus brief regarding whether DuPont had violated the law—essentially allowing it to regulate. DOL admitted in its brief that the FLSA was silent on the issue, but argue that the statute implicitly forbade the practice. The Third Circuit then adopted that view by granting DOL Skidmore deference (by which judges defer to agency interpretations according to their persuasiveness), and reversed the district court’s ruling.