This is one of the odder spam emails I’ve gotten:
Notice to Appear,
You have to appear in the Court on the July 21.
Please, prepare all the documents relating to the case and bring them to Court on the specified date.
Note: The case will be heard by the judge in your absence if you do not come.You can find the Court Notice is in the attachment.
Yours faithfully,
Ian Petty,
Clerk of Court.
I did not download the attachment, titled “Notice_to-Appear_383051.zip.”
Yesterday, the Ninth Circuit held oral arguments in Arizona Dream Act Coalition v. Brewer. This case involves Arizona’s denial of driver’s license to DACA beneficiaries. During arguments, Judge Harry Pregerson implied that opposition to DACA “comes down to racism.”
Arizona has incurred no ill effects because of the new, legal Dreamer drivers, said Judge Harry Pregerson.
“Nothing horrible has happened on the highways of Arizona,” said Pregerson, who was appointed to the 9th Circuit in 1979 by President Carter.
Pregerson asked why Arizona continued to try to deny benefits to Dreamers. “Does it come down to racism? Does it come down to discrimination against these people? What else does it come down to?” he asked.
“Judge, I wish you wouldn’t say things like that,” Arizona Assistant Atty. Gen. Dominic Draye replied.
Pregerson added:
“I’m saying it because it’s the truth.”
Near the end of the hearing, Pregerson continued to push the attorneys toward discussing what Arizona’s decision would mean to thousands of people.
“They’re part of our culture, they’ve gone to our schools, they’ve made contributions,” Pregerson said. “The bottom line is, if there’s individual [scrutiny] of each eligible person who seeks the benefits of DACA, I guess that’s a terrible thing.”
You can watch the clip here, starting at around 2:23:38.
During oral arguments in Texas v. United states last week, fellow Carter-appointee Judge Carolyn King made a similar comment that Texas just doesn’t want DAPA beneficiaries to work:
U.S. Circuit Judge Carolyn King, the lone Democratic appointee to the panel, was skeptical. The states aren’t “contesting their ability to stay here. They can stay,” King said. “What you don’t want them to do is able to work.” “That’s the key,” she added.
An equally-stunned Texas SG Scott Keller calmly replied that this wasn’t the case at all.
These questions reflect an increasingly common theme in high-stakes separations of powers litigation. In King v. Burwell, one of the most important, if not the leading argument, was that the invalidation of the IRS rule would take away the healthcare of eight million people. The Solicitor General made this point in his brief, and an amicus brief was filed explaining how many people would die if the Court reversed the Fourth Circuit.
Likewise, the valence surrounding the challenge to DAPA has been that aliens would be unable to work, and could not come out of the shadows.Outside the Fifth Circuit last week, there were hundreds of demonstrators, and a marching band that you could hear on the audio. I appeared on Al Jazeera America after Judge Hanen’s ruling, and was asked over and over again why poor, innocent immigrants should be denied this status.
The two comments from Judges Pregerson and King, however, take this popular perception to the next level. Rather than simply acknowledging the consequences of the cases if the states prevail, the Judges charge the states with the bare animus to harm people based on their race and alienage status. This is common fare for MSNBC and Salon, but is beyond the pale for judges.
It’s unavoidable that separation-of-powers challenges are always clouded by the consequences of the decision–if the Court invalidates or upholds X, then people will be harmed. That’s fine, and courts often do consider that in their judgment. But it is wildly inappropriate for Judges without any evidence to baldly state that the states did X for the sole purpose of harming people.
At the 9th Circuit Conference in San Diego, Justice Kennedy made some waves by comparing the aftermath of Obergefell to the aftermath of Texas v. Johnson (the flag burning case). If Justice Kennedy really sees these two cases on the same parallel, he needs a bigger reality check than I thought. But much more interesting were his remarks on “draw[ing] down” on the Court’s “capital of trust.”
Kennedy didn’t elaborate on the same-sex marriage ruling or on other decisions in the last term, but he said the justices must decide cases in a fair and neutral way.
“We have to reflect on what these issues mean, and when we have a controversial case – and a very difficult case like (same-sex marriage) – we draw down on a capital of trust, a deposit of trust,” Kennedy said. “We spend that capital of trust, and we have to rebuild that capital. We have to put new deposits, new substance into this reservoir of trust.”
So how do we read this? Is a decision invalidating marriage laws drawing on the trust deposit, requiring the court to “rebuild that capital later” with some future case. Or is the decision invalidating marriage laws what “rebuilds that capital” after it has been “draw[n]” down. If so, then what decisions are “draw[ing]” on that trust.
In any event, I’ve proven myself absolutely incompetent at reading AMK’s tea leaves, so please disregard everything I wrote.
In Harris v. Wenzel, 2015 WL 4092408, *4 , M.D.Pa. , (NO. 4:15-CV-00135), Judge Matthew W. Brann dismissed a pro se complaint that raised a host of civil rights violations arising from a traffic stop by a Pennsylvania State Trooper. In his complaint, the plaintiff cited a violation of his Second Amendment rights when the police “[r]epeatedly [lied] to Plaintiff as to [the] validity of [his] PA Concealed Weapons Permit.” (ECF No 1-1, ¶ 10). The court correctly dismissed this claim, because the plaintiff “fail[ed] to state any alleged violation of his constitutional rights in this respect.” But in a footnote, Judge Brann states that the Second Amendment “Applies only to the Federal Government.”
Notably, Mr. Harris alleges that State actors violated his Second Amendment rights, a proposition that is invalid as a matter of law. In that respect, the Supreme Court has continually “reaffirmed that the Second Amendment applies only to the Federal Government.” District of Columbia v. Heller, 554 U.S. 570, 620 n. 23 (2008) (citing Presser v. Illinois, 116 U.S. 252, 265 (1886); Miller v. Texas, 153 U.S. 535, 538 (1894)). Therefore, it is impossible for Mr. Harris to state a claim for Second Amendment violations against the Defendants, and any amendment to the complaint would be futile. Consequently, this claim is dismissed with prejudice.
Now before you jump all over Judge Brann for stopping in the U.S. Reports at Heller, and not reading onto McDonald, think about what he is saying. The Second Amendment, standing by itself does not apply to the State Governments. Only by virtue of the Fourteenth Amendment (the Due Process Clause, or in my opinion the Privileges or Immunities Clause) is the right to keep and bear arms extended to the states. So yes, the court is technically correct. When pleading, the pro se plaintiff should have cited the 2nd and 14th Amendments, rather than the 2nd Amendment alone.
However, it was unnecessary for the court to make such a remark about a pro se pleading, which should have been read leniently. It was enough to find the claim was without merit (and it was).
H/T Dave Kopel and others
Today in another supplemental filing, DOJ has submitted a 7/10 and 7/14 memorandum from DHS Secretary Jeh Johnson. In short, it offers extreme steps to recover the nearly 1,500 outstanding three-year employment authorizations that were sent after Judge Hanen’s instructions. The most extreme remedy is that anyone who has one, and doesn’t return it, will lose their deferred action status. Here are the highlights.
This should be enough to assuage Judge Hanen.