Equitable defenses - LACHES AND ESTOPPEL

 Equitable defenses: Laches (53:04)

Equitable defenses: Promissory Estoppel (15:53)

Equitable defenses: Equitable estoppel (42:00) PENDING

Sites of (Mis)Translation: The Credible Fear Process in United States Immigration Detention

Sites of (Mis)Translation: The Credible Fear Process in United States Immigration Detention 

35 Georgetown Immigration Law Review (2021 Forthcoming)

by Kif Augustine Adams and D. Carolina Nunez

Abstract

The credible fear interview presents a high-stakes encounter in the circumscribed legal process afforded to individuals in immigration detention as they seek to claim asylum in the United States. Limited research, however, exists on the sociolegal consequences of translation and interpretation in the asylum process generally and the credible fear context specifically. Our paper advances that scholarship in the context of the credible fear process for detained individuals by focusing on two sites of potential (mis)translation and (mis)interpretation: 1) explaining “credible fear” and 2) transposing individual facts and trauma into the legal categories that United States and international asylum law recognize as forming the basis for an asylum.

OTHERWISE: Opinion | Are Republican Judges Putting Their Thumbs on the Electoral Scale? - The New York Times

OTHERWISE: Opinion | Are Republican Judges Putting Their Thumbs on the Electoral Scale? - The New York Times

Amy Barrett: OK to bar aliens who may need government help

OTHERWISE: Amy Barrett: OK to bar aliens who may need government help: Amy Coney Barrett issued an exhaustive 40 page dissent in June endorsing the Trump administration's anti-immigrant "public charge" rule.  T...

Second Circuit Judges Express Skepticism Over Trump’s Bid to Block Tax Return Subpoena - The New York Times

OTHERWISE: Judges Express Skepticism Over Trump’s Bid to Block Tax Return Subpoena - The New York Times

Suburburbanites Need to Be Part of Racism Conversation, Says Professor

Suburburbanites Need to Be Part of Racism Conversation, Says Fordham Professor

BY PATRICK VEREL ON SEPTEMBER 23, 2020POLITICS AND SOCIETY

On July 29 of this year, President Trump announced on Twitter that he had “rescinded the Obama-Biden AFFH Rule,” a reference to the Affirmatively Furthering Fair Housing rule, which was passed by the Obama Administration in 2015.

With that, the issue of housing in American suburbs became an issue in the 2020 presidential campaign. Although the suburbs of today bear little resemblance to their cookie-cutter predecessors like Levittown, Long Island, they are still, in important ways, resistant to diversity and change.

To explore why that is, and how it happened in the first place, we sat down with Roger Panetta Ph.D., a recently retired professor of history and the author of Westchester: The American Suburb, (Fordham University Press, 2006) and The Tappan Zee Bridge and the Forging of the Rockland Suburb. The Historical Society of Rockland County, 2010). He also co-wrote Kingston: The IBM Years, (Black Dome Press, 2014).

What happens to the Supreme Court with Ruth Bader Ginsburg gone? - Vox

OTHERWISE: What happens to the Supreme Court with Ruth Bader Ginsburg gone? - Vox

by Ian Millhiser

Must Philadelphia accommodate Catholic Social Services refusal to refer adoptees to same-sex couples

 

When Catholic Social services contract with the City of Philadelphia expired the City refused to renew it.  The City's Ordinance forbade discrimination in public accommodations.  But The United States joined as a friend of the court in Fulton and Catholic Social Services v. City of Philadelphia.  It frames the issue as:

Whether the City of Philadelphia’s termination of a contract that allowed Catholic Social Services to help place children in the City with foster parents, on the basis of Catholic Social Services’ unwillingness to endorse same-sex couples as foster parents, violated the Free Exercise Clause of the First Amendment.

As the DOJ further elaborates the question:

In accordance with its religious beliefs, Catholic Social Services is willing to provide foster certifications for households headed by married couples or single people, but not households headed by unmarried couples. Because it adheres to the belief that marriage is the union of a man and a woman, it regards all same-sex couples as unmarried.  

The upshot of those beliefs is that the organization will provide foster certifications for married opposite-sex couples and single, unmarried individuals (including gay and lesbian individuals) but not for same-sex couples or unmarried opposite-sex couples. 

The Catholic Archdiocese, represented by the Becket Fund for Religious Liberty launched a direct attack on the principle that laws of general application may constitutionally bar otherwise unlawful activity despite its use in a religious ritual.  Thus did Antonin Scalia find that the hallucinogen peyote could not be used as an element of a Native American religious ritual. Thus the Church poses the issues as:

Whether Employment Division v. Smith should be revisited?  Whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs?

When one is engaged in private activity such as placing foster children, I suppose one can  pick and choose who is the beneficiary of your largesse.  But not so when you are seeking public funds.

However I would not put any money that mattered on the proposition that the Supreme Court will agree that Catholic social Services was properly denied injunctive relief. 

OTHERWISE: A portrait of an extraordinary life - SCOTUSblog

OTHERWISE: A portrait of an extraordinary life - SCOTUSblog

Ruthanne Deutsch is a founding partner at Deutsch Hunt PLLC. She clerked for Ginsburg during the 2007-08 term.

I remember my clerkship interview with Justice Ginsburg as if it were yesterday. I arrived with instructions from helpful former clerks to count to “3 Mississippi” after her pauses, to be sure she had finished saying what she wanted. A high school friend encouraged me to think of her as my Bubba from Brooklyn. The justice was formal (and formidable). But she also was warm, engaged and appreciative of my having attended law school as the mother of two young children. “Two is something,” she gracefully noted. “I only had to care for one child during law school.” Of course she neglected to add that when she was in law school, she also cared for a husband undergoing cancer treatments — essentially taking his classes as well as her own — all while performing at the very top of her class.

As the interview came to its close, we spent some time walking through her chambers looking at the many photographs lining her bookshelves. She paused before her favorite, a picture of her son-in-law with two of her grandchildren, taken when they were small. “This,” she said, “is hope for the future.” What she meant was a world where we all can realize our full potential as human beings, not relegated to the confines of socially (or legally) imposed gender roles. Men can be caregivers just as women can be breadwinners. And the law should pose no obstacle to the full range of life choices and opportunities for anyone, regardless of their gender (or race, or sexual orientation). No surprise that one of her favorite cases from her storied career fighting for gender equality was Weinberger v. Wiesenfeld (1975). There, the Supreme Court struck down as unconstitutional a gender-based distinction under the Social Security Act that permitted widows but not widowers to collect special benefits while caring for minor children.

Ipse Dixit: podcast Pierre Schlag - The Law Review Article

 

I just posted @IpseDixitPod #625, featuring Pierre Schlag of @ColoLaw discussing his article "The Law Review Article." This is one of my very favorite articles, which I recommend constantly & use in all of my seminar classes. Check it out! https://t.co/NqQGEObNzH

— Brian L. Frye (@brianlfrye) September 22, 2020

OTHERWISE: A dozen Former Federal Judges Urge Senate Not To Rush SCOTUS Nominee

OTHERWISE: A dozen Former Federal Judges Urge Senate Not To Rush SCOTUS Nominee: Twelve former federal judges have appealed to Majority Leader Mitch McConnell to withhold the confirmation of a new Associate Justice until...

The Asylum Cases: APA challenges - East Bay Sanctuary Covenant v. Trump

 

Recorded lecture and video:

The Asylum Cases: APA challenges - East Bay Sanctuary Covenant v. Trump

Related SLIDES 

Timeline

Supreme Court stays preliminary injunction over Sotomayor dissent  - September 11, 2019

Resources: East Bay Sanctuary page on TortsToday blog

Supreme Court: How the justices revived Jim Crow voter suppression - Vox

Supreme Court: How the justices revived Jim Crow voter suppression - Vox

A podcast

How the Supreme Court revived Jim Crow voter suppression tactics

Carol Anderson explains what happens when our voting rights laws start to crumble.

By Ian Millhiser  Sep 21, 2020, 8:30am EDT

In 1965, the United States began a grand experiment: We decided to finally have free and fair elections.

Before President Lyndon Johnson signed the Voting Rights Act of 1965, the United States was more or less a white ethnostate. As Johnson explained in an address to Congress proposing that law, “every device of which human ingenuity is capable” was used in the South to deny Black people the right to vote.

The Voting Rights Act, and especially a provision of that act requiring states with a history of racism to “preclear” new voting laws with federal officials before those laws could take effect, may be the most effective civil rights law in American history. On the day the Voting Rights Act was signed, only about 5 percent of Black Mississippians were registered to vote.

Two years later, that number was 60 percent.

Yet in decisions like Shelby County v. Holder (2013) and Abbott v. Perez (2018), the Supreme Court dismantled much of this landmark voting rights law.

The first episode of By the People?, a new podcast miniseries that I’m hosting, lays out what happens when the United States abandons its brief commitment to ending race discrimination at the polls. I spoke with Carol Anderson, a professor of African American studies at Emory University and the author of One Person, No Vote: How Voter Suppression Is Destroying Our Democracy.

Robert S. Graetz, Rare White Minister to Back Bus Boycott, Dies at 92 - The New York Times

Robert S. Graetz, Rare White Minister to Back Bus Boycott, Dies at 92 - The New York Times

By Alan Blinder

• Sept. 20, 2020, 10:34 p.m. ET

As a young Lutheran minister in Alabama in the 1950s, the Rev. Robert S. Graetz Jr. would alternate his driving routes to thwart attackers. He once measured a 15-inch-deep crater left by a bomb that targeted his home in Montgomery. And to shield his young children from fear — and the shards of glass that would follow another explosion — he would play a “game” with them where they would crawl behind a couch when there was a suspicious sound outside.

Defying the menacing of the Ku Klux Klan, intimidation by the authorities and isolation among fellow clergymen, Mr. Graetz remained a rare, unbowed voice for desegregation among white people in Alabama, supporting the Montgomery bus boycott that transformed the nation’s budding civil rights movement.

“I have always contended that the absence of fear is not the point,” Mr. Graetz wrote in “A White Preacher’s Message on Race and Reconciliation: Based on His Experiences Beginning with the Montgomery Bus Boycott,” a memoir published in 2006. “What you do when you are afraid is what makes the difference. We often had good reason to be afraid.”

Mr. Graetz, who seemed to toggle seamlessly between foot soldier and field general in civil rights and social justice causes for roughly seven decades, died on Sunday. He was 92.

OTHERWISE: Remembering Ruth Ginsburg

OTHERWISE: Remembering Ruth Ginsburg

Banksy trademark 'at risk' after street artist loses legal battle | Banksy | The Guardian

So is use of a nom de plume fatal to copyright protection?  Fixed in a tangible medium of expression seems to be all you need.

Is the trademark the name Banksy?

Banksy trademark 'at risk' after street artist loses legal battle | Banksy | The Guardian

Banksy’s trademark may be at risk after the street artist lost a case that an EU panel said was brought in bad faith and was undermined by a gift shop he set up in London last year.

Banksy lost the case against a greeting card company, Full Colour Black, which argued it should be able to use an image of the Flower Thrower stencil mural, which he painted in Jerusalem, because of the artist’s anonymity.

In 2014, Banksy’s representatives, Pest Control Office, successfully applied for an EU trademark of the Flower Thrower, but this week that was overturned after a two-year dispute.

The European Union Intellectual Property Office (EUIPO) panel said it ruled against the artist because he could not be identified as the unquestionable owner of such works because his identity remained hidden.

Professional Responsibility Blog: Third Circuit issues opinion on whether a prosecutor can be sued for conduct that resulted in wrongful conviction

Professional Responsibility Blog: Third Circuit issues opinion on whether a prosecutor can be sued for conduct that resulted in wrongful conviction

by Prof. Alberto Bernabe (UIC)

Prosecutors are usually protected from possible civil liability because they can claim immunity.  However, immunity only applies to their conduct as litigators, not as investigators and defining the line between one and the other is a matter of much debate.  

There are many cases out there that discuss the issue and now the Court of Appeals for the Third Circuit has added a new one.  In a case Weimer v. County of Fayette, Pennsylvania, the court examines the claim of plaintiff Crystal Dawn Weimer who spent more than eleven years in prison, and then, after her convictions were vacated, filed suit under 42 U.S.C. § 1983, alleging that the County of Fayette, Pennsylvania; its former District Attorney, Nancy Vernon; the City of Connellsville; and several city and state police officers violated her rights under the U.S. Constitution and Pennsylvania law. 

The Court found that certain aspects of the prosecutors conduct were protected by immunity, but many others were not and remanded the case for further  proceedings.

You can read more about the case here, where you can also find an embedded copy of the opinion. 

Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial Review - Harvard Law Review

 

John Marshall Harlan, Associate Justice

1877-1911

In the truly landmark case of Jacobson v. Massachusetts 197 U.S. 11 (1905) Justice John Marshall Harlan, reviewing a $5 fine for failure to consent to vaccination against smallpox, explained for the Supreme Court that it is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health.

That plain statement of judicial deference to elected officials was followed by another that has become the part best remembered, and cited most often in this the moment of the corona virus pandemic:

[W]hen faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.

Texas law professors Lindsay Wiley and Stephen Vladeck in a new essay warn against the common view that 

invocation of "emergency" means the "suspension" of judicial review.  

Wiley and Vladeck argue that it means neither: that ordinary judicial review standards are 

adequate - that attention to the facts and an independent eye are the norm that judges should 

be following lest this "emergency" - like others, morph into the new normal, with rights 

casually restricted and courts keeping hands off. - GWC 

Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial Review - Harvard Law Review

by  Lindsay F. Wiley & Stephen I. Vladeck

In this Essay, we argue that the suspension approach to judicial review is wrong — not just as applied to governmental actions taken in response to novel coronavirus, but in general. As we explain, the current crisis helps to underscore at least three independent objections to the “suspension” model some courts have derived from decisions like Jacobson and Avino. These critiques likewise apply to instances in which courts purport to adopt the appropriate standard of review but do not actually apply it with appropriate rigor.^26×26. See, e.g., Korematsu v. United States, 323 U.S. 214, 216–18 (1944) (holding that internment of Japanese Americans passed “the most rigid scrutiny,” id. at 216, because of the compelling interests presented by national security concerns). Korematsu has been roundly rejected as part of the constitutional anticanon. Jamal Greene, The Anticanon, 125 HARV. L. REV. 379, 380, 387–90 (2011). In the absence of such a clear repudiation, soft applications of constitutional standards of review in times of crisis may create dangerous precedent for future applications of those standards once the crisis has passed. Justice Jackson articulated this concern in his Korematsu dissent: “[O]nce a judicial opinion . . . rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination.” 323 U.S. at 246 (Jackson, J., dissenting).

First, the suspension principle is inextricably linked with the idea that a crisis is of finite — and brief — duration. To that end, the principle is ill-suited for long-term and open-ended emergencies like the one in which we currently find ourselves.

Second, and relatedly, the suspension model is based upon the oft-unsubstantiated assertion that “ordinary” judicial review will be too harsh on government actions in a crisis — and could therefore undermine the efficacy of the government’s response. In contrast, as some of the coronavirus cases have already demonstrated, most of these measures would have met with the same fate under “ordinary” scrutiny, too.^27×27. Cf., e.g., Legacy Church, Inc. v. Kunkel, No. CIV 20-0327, 2020 WL 1905586, at *36 n.12 (D.N.M. Apr. 17, 2020) (rejecting First Amendment challenges by a church to an order prohibiting gatherings without social distancing on the alternative ground that the order survives strict scrutiny). The principles of proportionality and balancing driving most modern constitutional standards permit greater incursions into civil liberties in times of greater communal need. That is the essence of the “liberty regulated by law” described by the Court in Jacobson.^28×28. Jacobson, 197 U.S. at 27 (quoting Crowley v. Christensen, 137 U.S. 86, 90 (1890)).

Finally, the most critical failure of the suspension model is that it does not account for the importance of an independent judiciary in a crisis — “as perhaps the only institution that is in any structural position to push back against potential overreaching by the local, state, or federal political branches.”^29×29. Wiley & Vladeck, supra note 3. Indeed, as Professor Ilya Somin has put it, “imposing normal judicial review on emergency measures can help reduce the risk that the emergency will be used as a pretext to undermine constitutional rights and weaken constraints on government power even in ways that are not really necessary to address the crisis.”^30×30. Ilya Somin, The Case for “Regular” Judicial Review of Coronavirus Emergency Policies, VOLOKH CONSPIRACY (Apr. 15, 2020, 4:16 PM), https://reason.com/2020/04/15/the-case-for-normal-judicial-review-of-coronavirus-emergency-policies [https://perma.cc/W82D-NKRN]. Otherwise, we risk ending up with decisions like Korematsu v. United States^31×31. 323 U.S. 214. — in which courts sustain gross violations of civil rights because they are either unwilling or unable to meaningfully look behind the government’s purported claims of exigency...

Opinion | The Very Structure of Modern Government Is Under Legal Assault - The New York Times

Opinion | The Very Structure of Modern Government Is Under Legal Assault - The New York Times

by Adrian Vermeule and Cass Sunstein

More than at any time since the 1930s, the administrative state is under constitutional assault. Some judges, lawyers and legal academics are calling into question the very structure of modern government.

Four members of the U.S. Supreme Court, and possibly five, have indicated that they would like to revive the “nondelegation doctrine,” which would forbid Congress from granting excessively broad or uncabined discretion to administrative agencies such as the Environmental Protection Agency, the Department of Labor and the Department of Transportation. Under their approach, important parts of the Clean Air Act and the Occupational Safety and Health Act might be invalidated.

So too, in eliminating the independence of the Consumer Financial Protection Bureau in June, a majority of the Supreme Court cast a dark constitutional cloud over the long-established idea that Congress has the power to allow agencies to operate independently of the president. The court’s approach raises serious doubts about the legal status of the Federal Reserve Board, the Federal Trade Commission, the Nuclear Regulatory Commission and other such entities.

These developments are just two of a large number of emerging efforts within the federal courts to limit the power of administrative agencies or perhaps even to abolish them, at least in their current form. We are witnessing the flowering of a longstanding attempt to see the administrative state as fundamentally illegitimate. (The legal assault on the administrative state has political resonance, too; think of the former Trump adviser Steve Bannon’s call for the “deconstruction of the administrative state.”)

KEEP READING

9th Circuit OK's termination of Salvadoreans' Temporary Protect Status - ImmigrationProf Blog

 9th Circuit OK's termination of Salvadoreans' Temporary Protect Status - ImmigrationProf Blog



Yesterday a split three-judge panel of judges of the 9th U.S. Circuit Court of Appeals reached a decision in Crista Ramos et al. v. Kirstjen Nielsen et al. (case number 18-16981) to vacate a federal district court decision that preserved the Temporary Protected Status (TPS) designations of Sudan, Nicaragua, Haiti, and El Salvador.  

The Hill reports as follows:

"In a 2-1 ruling, the three-judge panel found that a California federal judge overstepped when he temporarily barred the administration from ending temporary protected status — which gives deportation relief and work permits to individuals from designated countries in crisis — for people from El Salvador, Haiti, Sudan and Nicaragua.

The panel said the head of the U.S. Department of Homeland Security has 'full and unreviewable discretion' to make decisions about TPS. The majority also concluded that the TPS holders, some of whom have lived in the U.S. for more than a decade, had not provided enough evidence to show the administration had racist intent when moving to terminate TPS for those nations."

OTHERWISE: Lochner rides again: Penn judge: limits on church attendance are unconstitutional

OTHERWISE: Lochner rides again: Penn judge: limits on church attendance are unconstitutional

11th Circuit en banc upholds financial restrictions on voting by former felons

OTHERWISE: 11th Circuit en banc upholds financial restrictions on voting by former felons

Equity From Athens to Atlanta - lecture

Introduction to Equity 

Lecture: Equity from Athens to Atlanta

1:03.05 [skip 31:40 - 35:43]

Jones v. DeSantis (United States Court of Appeals for the 11th Circuit) Atlanta

11th Circuit en banc upholds financial restrictions on voting by former felons

Resources: Equity from Athens to Atlanta

Rhetoric by Aristotle

ca. 350 BC

Translated by W. Rhys Roberts

URL: http://classics.mit.edu/Aristotle/rhetoric.html

 

Equity in the Civil Law and the Common Law

Author(s): Hessel E. Yntema

Source: The American Journal of Comparative Law, Vol. 15, No. 1/2 (1966 - 1967), pp. 60-86

Published by: Oxford University Press

Stable URL: https://www.jstor.org/stable/838860

Some Constitutions Composed by Justinian

Author(s): A. M. Honoré and Justinian

Source: The Journal of Roman Studies, Vol. 65 (1975), pp. 107-123

Published by: Society for the Promotion of Roman Studies

Stable URL: https://www.jstor.org/stable/370066

Thomas More (1478-1535)

Stanford Encyclopedia of Philosophy

https://plato.stanford.edu/entries/thomas-more/  

Jones v. DeSantis

11th Circuit en banc upholds financial restrictions on voting by former felons

https://blackstonetoday.blogspot.com/2020/09/11th-circuit-en-banc-upholds-financial.html 

 

 

Census must count everyone - contra Trump - 3 judge federal District Court rules in New York case

On July 21, 2020, President Donald J. Trump issued a Presidential Memorandum, titled “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” Presidential Memorandum, 85 Fed. Reg.at 44,679. In it, the President declared that, “[f]or the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status . . . to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”

The State of New York, joined by others, filed suit against Donald Trump to declare void and enjoin a Presidential Memorandum which directed the Commerce Department not to count illegal aliens for apportionment purposes.  The result of such a policy would be to deprive California, New York, and others of representation in Congress and in state legislatures.

Today in New York, et al. v. Trump a three judge panel of the United States District Court in Manhattan issued an Opinion and Order declaring the "Presidential Memorandum is an ultra vires violation of Congress’s delegation of its constitutional responsibility to count the whole number of persons in each State and to apportion members of the House of Representatives among the States according to their respective numbers under 2 U.S.C. § 2a and 13 U.S.C. § 141."

The summary judgment Order can be appealed directly to the United States Supreme Court because it was commenced under 28 U.S.C. § 2284 which provides that “[a] district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.”  The District Court panel [composed of two Circuit Court judges and one District Court judge] issued a declaratory judgment under 28 USC 2201. They declared the President's memorandum to be "unlawful" and entered a permanent injunction against its implementation.  The injunction - because it rules on constitutionality may be appealed directly to the United States Supreme Court under 28 USC 1253. Although Donald Trump is the first named defendant "in his official capacity" the injunction is directed not to him but to the Department of Commerce, Secretary Mnuchin, and the Bureau of the Census.

It is not known what action the Trump administration will take.  They have been very successful in obtaining stays of District Court orders, a pattern of which Justice Sonia Sotomayor has complained bitterly.  But the criteria for issuance of a stay, which is best seen as an injunction against a court, customarily emphasizes the maintenance of the status quo and avoidance of irreparable harm.  On both counts the District Court judgment should be secure.  Trump's July memorandum changed a historically uniform practice.  If implemented thousands of illegal immigrants could not be counted within the statutory period for conduct of the constitutionally mandated decennial census.

- GWC

Greenhouse: D.C. Circuit Panel Closes the Gate at Guantanamo

Appeals Court Just Slammed the Guantánamo Gate Shut

Does the public care about the 40 remaining inmates with no obvious end to their imprisonment?

By Linda Greenhouse

There are times when there's little choice but to resort to the banal: that a society is judged by how it treats the lowliest.  So forty of those seized and rendered to Guantanamo following the 9/11/2001 attacks remain there.  They may have done horrible things.  How would one know?  But based on Al Hela v. Trump, a recent decision by Judge Randolph of the D.C. Circuit we will never know.  The men will die there untried, their guilt unproven.  Randolph was joined by two conservatives: the young Neomi Rao and the about to retire Thomas Griffith.  Rao is the more aggressive, as Linda Greenhouse describes in her newest piece for the Times.   - GWC

Judge Griffith, who retired from the appeals court last week, argued in a separate opinion that there was no need to venture further into constitutional territory. But in her controlling opinion, Judge Rao said it was time to decide the due process issue because Mr. Al Hela claimed in his habeas petition that the government’s reliance on anonymous hearsay in the intelligence reports it used to justify his continued detention violated his right to due process.

But no such right applied to him, Judge Rao wrote, concluding that “we reject Al Hela’s due process claims on the threshold determination that, as an alien detained outside the sovereign territory of the United States, he may not invoke the protection of the Due Process Clause.” A footnote to her opinion contained the astounding assertion that “our court has adhered to Eisentrager’s holding that the Fifth Amendment’s Due Process Clause does not apply outside the territorial United States and therefore cannot be invoked by detainees at Guantánamo Bay.”

Judge Griffith, in his separate opinion, properly objected: “But we have never made such a far-reaching statement about the Clause’s extraterritorial application.” The objection was fruitless. Judge Randolph had done his work and had the last word, at once cryptic and completely clear in a concurring opinion consisting of a single sentence: “I agree with the court’s decision not only for the reasons expressed in its opinion, but also for the additional reasons stated in my opinion concurring in the judgment in Ali v. Trump.”

What might happen next is anyone’s guess. It’s not out of the question for the full D.C. Circuit to reconsider the panel decision, as it did last week when it overturned a panel opinion in the Michael Flynn case, restoring the district judge’s discretion to decide whether to yield to the Trump administration’s demand to dismiss the prosecution of the president’s former national security adviser. It’s conceivable the Al Hela case could end up at the Supreme Court. I have trouble conjuring five votes there even to sustain the Boumediene precedent, let alone to carry it into due process territory.

***

What might happen next is anyone’s guess. It’s not out of the question for the full D.C. Circuit to reconsider the panel decision, as it did last week when it overturned a panel opinion in the Michael Flynn case, restoring the district judge’s discretion to decide whether to yield to the Trump administration’s demand to dismiss the prosecution of the president’s former national security adviser. It’s conceivable the Al Hela case could end up at the Supreme Court. I have trouble conjuring five votes there even to sustain the Boumediene precedent, let alone to carry it into due process territory.

***