Thursday, October 31, 2019

Ruth Bader Ginsburg and Footnote Four | The New Yorker

Ruth Bader Ginsburg and Footnote Four | The New Yorker

Last week, at the National Constitution Center, in Philadelphia, Justice Ruth Bader Ginsburg, whom Jeffrey Toobin recently profiled in the magazine, made a disclosure that deserves more attention than it has gotten. She explained that her solo dissent from the Court’s June decision that federal courts must look skeptically at the affirmative-action plans of colleges and universities, was inspired by a 1938 ruling not mentioned in the dissent—actually, by one of its footnotes.

The point is noteworthy because that’s long been called the most important footnote in constitutional law. Justice Ginsburg didn’t say so, but the rejection of this footnote’s principles by Court conservatives during the past generation—and, in particular, by the Roberts Court—explains why the Court’s current activism often feels like the result of politics rather than law.

The 1938 case is United States v. Carolene Products, in which the Court said that it was not the role of the judiciary to closely review laws passed by Congress that impose economic regulations, and upheld a federal statute making it illegal to ship “filled milk” in interstate commerce. Filled milk substituted coconut oil for the fat found in regular milk, and was in competition with condensed milk.

The ruling confirmed what had happened, dramatically, the year before. After four decades of an activist judiciary, with the conservative majority regularly striking down economic and social-welfare legislation ostensibly to protect “liberty of contract,” the Supreme Court had ended its support of big business and laissez-faire economics and allowed the New Deal to move forward.

But Justice (later Chief Justice) Harlan F. Stone, who wrote the Carolene Products opinion, did not want to embrace judicial restraint unequivocally. That would have made it easier for Congress to infringe on civil liberties and civil rights. In footnote four, which is the only remarkable part of the decision, he distinguished between statutes dealing with economic and social-welfare legislation and those dealing with “the very essence of ordered liberty.”

As the University of Chicago’s David Strauss put it, in a 2009 lecture, “The Carolene Products footnote was the Court’s first—and maybe only—attempt to say, systematically, when the courts should declare laws unconstitutional.”

Justice Stone wrote that “the presumption of constitutionality” should be set aside and that legislation should be “subjected to more exacting judicial scrutiny” when it “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” or when it is “directed at particular religious, or national, or racial minorities”—“against discrete and insular minorities” that are victims of “prejudice.” Laws about milk need not be subjected to exacting review; laws about rights and liberties likely should be.

He addressed a question that had been paramount since the founding of the Republic regarding the role of the judiciary in American governance: Why isn’t it anti-democratic for unelected judges to overturn decisions of elected officials? It isn’t anti-democratic, the Justice said, if judges follow the principles of judicial review framed by the footnote.

It was only a footnote, an insight, offering a caveat to the Court’s holding. It proposed an idea to be fleshed out in future cases. But as Strauss explained, it “defined the federal courts’ agenda for a generation—one of the most momentous generations in the history of the Supreme Court and the federal judiciary.”

Landmark rulings of the Warren Court—Brown v. Board of Education, which struck down segregation in public schools; Baker v. Carr, which said that federal courts could review legislative reapportionment and Reynolds v. Sims, which established the standard of one person, one vote—reflect the Stone view that federal courts can intervene when the political process marginalizes or shuts out some groups. One leading scholar called the footnote “the text” for constitutional law in the era of the Warren Court. John Hart Ely’s “Democracy and Distrust,” a legal classic about modern constitutional law, written in 1980, was recently called “an elaboration” of the footnote

Justice Ginsburg’s point about footnote four was that if the Supreme Court had followed the note’s principles last term, it would have upheld the affirmative-action plan before it: to her, the plan was an example of the majority giving members of the minority an advantage rather than treating them unjustly, and the Court should have deferred to the majority.


Wednesday, October 30, 2019

I haven't gotten over it ~ Dahlia Lithwick on Brett Kavanaugh
"It is not my job to decide if Brett Kavanaugh is guilty. It’s impossible for me to do so with incomplete information, and with no process for testing competing facts. But it’s certainly not my job to exonerate him because it’s good for his career, or for mine, or for the future of an independent judiciary. Picking up an oar to help America get over its sins without allowing for truth, apology, or reconciliation has not generally been good for the pursuit of justice. Our attempts to get over CIA torture policies or the Iraq war or anything else don’t bring us closer to truth and reconciliation. They just make it feel better—until they do not. And we have all spent far too much of the past three years trying to tell ourselves that everything is OK when it most certainly is not normalnot OK, and not worth getting over."

Chief Judge denies Trump Stay of order to turn over $$ Records to Congress

Sunday, October 27, 2019

Oversight Committee presses tax issue while Trump seeks en banc review in Circuit Court

The House Committee on Oversight has sought to expedite the mandate for production of Trump's tax returns that it won in the recent (2-1) decision of the D.C. Circuit Court of Appeals.  But Trump's lawyers, seeking delay, have sought both panel rehearing and en banc review by the entire D.C. Circuit Court of Appeals. The Court has set an expedited briefing schedule.  The House's brief on the en banc issue is due November 1, limited to 3,900 words.

A stay pending appeal is necessary because compliance would moot the entire controversy.  Like the Committee my opinion is that the Trump position borders frivolous but there is surely an audience on the Supreme Court and likely the Circuit for the dissent by newly appointed Circuit Judge Neomi Rao, a former clerk to Clarence Thomas.  Donald Trump's lawyers in their petition therefore argue:
 the majority incorrectly held that the “Committee is pursuing a legislative, as opposed to a law-enforcement, objective.” As Judge Rao explained, “the gravamen of the Oversight Committee’s investigation ... is the President’s wrongdoing.” A congressional investigation of the President on “suspicions of criminality or allegations that [he] violated a law ... may be pursued exclusively through impeachment.”. But the Committee “has not invoked Congress’s impeachment power to support this subpoena.” 
Judge Rao and Mr. Trump's lawyers have pinned their claims to the scope of the statement that accompanied the issuance of the subpoena.  At that point an impeachment inquiry was in the air but the Speaker  had not authorized it.  That has changed strikingly since the Whistleblower complaint about the President's efforts to pressure Ukraine for election help.  More importantly Chief Judge Beryl A. Howell has endorsed the House's exercise of its impeachment the matter of the application of the Judiciary Committee for grand jury materials.

Elena Kagan reads her dissent in the partisan gerrymander case Rucho v. Common Cause.

Elena Kagan reads her dissent in the partisan gerrymander case Rucho v. Common Cause.

For the first time ever,” Justice Elena Kagan declared on June 27, “this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”
Kagan was reading a summary of her dissent in Rucho v. Common Cause, a 5–4 decision that barred federal courts from hearing partisan gerrymandering claims. Chief Justice John Roberts had just wrapped up his majority opinion, delivered during the dramatic last session of the term. Justices rarely read dissents from the bench, and typically reserve the practice for decisions that they view to be catastrophically misguided. Now, for the first time, you can hear her deliver her historic dissent. Slate obtained the recording from the National Archives. It is deeply compelling and, for the stoic justice, remarkably impassioned. At first, her voice is filled with righteous fury, but it soon shifts into profound sorrow as she nears the end.

Friday, October 25, 2019

Obama, Clintons, widow honor Baltimore’s Elijah Cummings for fighting through pain to bring justice to others - Baltimore Sun

Rep. Elijah Cummings funeral

Obama, Clintons, widow honor Baltimore’s Elijah Cummings for fighting through pain to bring justice to others - Baltimore Sun

Two former presidents, congressional colleagues and thousands of residents of his beloved Baltimore said goodbye to U.S. Rep. Elijah Cummings at his longtime church Friday in a poignant service that was also a resounding appreciation of the city and a congressman who overcame adversity.
The funeral — attended by former Democratic presidents Barack Obama and Bill Clinton — was at times buoyant as about 4,000 mourners thundered applause for Cummings, the marquee speakers and mentions of Baltimore.
His widow, Maya Rockeymoore Cummings, thanked the attendees at New Psalmist Baptist Church for their support of her husband, who she said struggled with physical and emotional pain.
She said the Democratic congressman, who had cancer and other ailments, was stung by political attacks. Cummings, 68, was the focus of criticism by Republican President Donald Trump and his supporters this year as he intensified his pursuit of documents and testimony to investigate Trump’s administration.

OTHERWISE: Inspectors General renounce DOJ OLC letter blocking whistleblower

OTHERWISE: Inspectors General renounce DOJ OLC letter blocking whistleblower

The Inspectors General of the full array of federal agencies on October 22 joined together to renounce the Department of Justice Office of Legal Council's opinion declaring that the Intelligence Community IG's letter regarding a whistleblower should not be forwarded to Congress.  Contrary to the DOJ the IG's affirm that as a matter of urgent concern the charge that Donald Trump improperly withheld Congressionally authorized military aid to Ukraine. - gwc

Sanders and Warren Take Aim at Taft-Hartley // The American Prospect

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The 1947 Taft-Hartley Act was called the Slave Labor Act by Mineworkers leader John L. Lewis

Sanders and Warren Take Aim at Taft-Hartley // The American Prospect

by Rich Yeselson

Today, if Americans know anything at all about Taft-Hartley, they are familiar with the law’s section 14(b), which permits states to adopt “right to work” laws that prevent unions from negotiating contracts mandating that every worker the union represents must pay the union for the costs of that representation. Taft-Hartley thus permitted states to make union security provisions illegal. Immediately after the law was passed, most Southern states became right-to-work havens. Currently, 27 states are right-to-work, although last year, labor beat back at the polls an effort to turn increasingly conservative Missouri right-to-work.
Section 14(b) makes it harder for unions to organize workers, depletes union treasuries, and divides workers who pay union dues from the “free riders” who don’t, yet benefit from a union contract. While there are competing studies about its efficacy, it has undoubtedly limited the scope of union expansion, especially in the generally anti-union South. It is a signature anti-union articulation of plutocrats, corporations, and their political allies, who fought to impose it on the state level even before Taft-Hartley became law.

So it’s good but unsurprising news that, whatever their differences, the two candidates on the left wing of the Democratic Party wish to abolish it.
This year, Senators Bernie Sanders and Elizabeth Warren are running for president on the most pro-union and pro-worker platforms the nation has seen in decades. Their similar plans for sectoral bargaining and requiring corporations to permit their employees to elect members of their corporation’s board of directorshave drawn the attention of the commentariat. But as has largely not been noticed, their plans would also shift the legal landscape that frames the balance of power between workers and employers back toward what it was in the last decade of major private-sector union growth—1937 to 1947—by repealing key provisions of the 1947 law that has played a major role in the steady decline of workers’ rights and the stagnation of their incomes.
Sectoral bargaining and including workers on corporate boards are ideas that are new to the American economic landscape, though they’ve long been features of Germany’s more social market. They would strengthen the power of employees—but would not, in themselves, strengthen American unions. In fact, unions must grow enormously in numbers and influence in order to win the political struggle with corporate and reactionary America that will ensue over these proposals. Unions, workers, and their political supporters like Sanders and Warren are going to have to be much more militant and aggressive in order just to get to the point where sectoral bargaining and corporate representation can overcome the opposition of the most intensely anti-union corporate/political class in the advanced world. Class accords derive from class conflict.
But these two pols mostly have the right idea. In matters of union growth and workers’ rights, the Sanders and Warren labor plans are almost—but not quite—the same. Sanders has a proposal to outlaw firing “at will”—a centuries-old class imposition of Anglo-American law—and only permit firing for “just cause,” which would be like providing a union contract to everybody in the county. Sanders also says his goal would be the doubling of union membership in his first term of office.
Can union membership double in four years? In fact, it has happened three times before in our history, each time during a tremendous surge of working-class militancy: during the mid-1880s, which saw the rise of the Knights of Labor and the eight-hour-day movement; during the radical moment immediately following the end of the First World War; and during the middle-to-late 1930s, which witnessed the rise of the CIO’s industrial unionism and the efforts of the AFL to compete with its new rival. Heartening as Sanders’s support for growing unions may be, it will take a kindred burst of militancy to double labor’s size and scope.

Sunday, October 20, 2019

NY Prosecutor's demand for Trump tax records fight before Second Circuit Wednesday

Image result for mazarsImage result for trump organization logo When Donald Trump learned that Manhattan District Attorney Cyrus R. Vance, Jr.  subpoenaed his financial records he did not challenge the subpoena in the New York courts.  He filed a federal civil rights action under 42 U.S.C. 1983 - the post Civil War law under which Brown v, Board of Education and suits to enjoin or compensate for civil rights violations are brought.  On Wednesday, October 23 the U.S. Court of Appeals in New York will hear oral argument on Trump’s effort to stay the decision issued by Victor Marrero, a federal District Judge allowing the state subpoena to be enforced against the Mazars accounting firm which prepares Trump’s tax returns.

Trump complains that he is the victim of a bad faith grand jury proceeding intended to obtain his financial records for political purposes - not to enforce any law.  He sued personally, describing himself as  both President and as the sole beneficiary and ultimate owner of a string of Trump trusts and companies. His private lawyers' brief argues his rights are not merely personal but also that the subpoena interferes with his presidential duties.  The case therefore belongs in federal court.  The traditional factors which lead federal courts not to interfere with state criminal proceedings are inapplicable the Trump lawyers assert because a federal officer’s rights should be determined by a federal court, not risked at the hands of a state court. 

Trump must overcome the holding by the Supreme Court  in Clinton v. Jones (1997).  In a civil action by Paula Jones who alleged sexual misconduct by Bill Clinton before he took office, Justice John Paul Stevens  explained that the President, like other officials, is subject to the same laws that apply to all citizens.  No case had been found in which an official was granted immunity from suit for his unofficial acts, Justice Stevens noted.  The rationale for official immunity is inapplicable, he explained, where only personal, private conduct by a President is at issue. The Court also rejected the argument that, unless immunity is available, the threat of judicial interference with the Executive Branch would violate separation of powers.

Vance, the New York  District Attorney has submitted a sealed declaration describing the scope and basis for the investigatory subpoena to Mazars - the Trump accountants (which itself takes no position).  Vance writes “The records relate to business and financial matters unrelated to any official acts of the President of the United States, and are primarily from the time-period before Appellant [Trump] assumed that office”.

 The Mahattan prosecutor  argues that because “[i]n the ordinary course, ‘a state proceeding provides an adequate forum for the vindication of federal constitutional rights.’..  The burden rests with Appellant [Trump]  to show “that state procedural law barred presentation of [its] claims.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987)... “Under Younger [v. Harris (1972)] . . . [we] need not establish that state law definitively permits the interposition of constitutional claims.”   

Article VI of the U.S. Constitution declares that federal law is supreme and that  “The Judges in every State shall be bound thereby”.  Federal courts therefore  must presume that state judges will protect constitutional rights with the same vigor as would any federal judge.  The Supreme Court so found when in the 1967 case Walker v. Birmingham it upheld the jailing of Martin Luther King for defying an ex parte Alabama court order not to march on Good Friday 1963 in Birmingham, Alabama.  The civil rights leaders should have appealed to the Alabama courts rather than march on Good Friday defying a court order issued without notice to them, according to the decision written by the conservative  Justice Potter Stewart.

Vance therefore soundly relies on District Judge Victor Marrero’s conclusion that the 1982 Supreme Court decision in  Middlesex County Ethics Committee v. Garden State Bar directs federal courts to allow state court proceedings to move forward when "( 1) there is a pending state proceeding , ( 2 ) that implicates an important state interest, and ( 3 ) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of his or her federal constitutional claims."  All three conditions prevail here.  Enforcement of tax laws and punishing financial crimes are surely important matters, and the New York Courts surely can cope with a federal constitutional challenge.

William Barr’s  Department of Justice has intervened as amicus curiae on Trump’s behalf.  The DOJ relies on  the supremacy of the President as a federal officer.  That argument  would be compelling if the New York investigation  involved offenses touching on the Office for which the House of Representatives has “sole  Power of impeachment” under Article 1 of the Constitution.  But it does not.  It is Trump’s pre-Presidential conduct that is at issue.  Trump and the Department of Justice can expect to be hard pressed to persuade the Circuit panel that Vance’s criminal investigation is in bad faith - that the federal interest preempts the State’s in enforcing its general criminal law against a man whose refusal to disclose his tax returns and  already public financial record provides many reasons to suspect that he has been a dishonest actor.


Friday, October 18, 2019

Supreme Court to Take Up Pair of Conflicting Arbitration Rulings | New Jersey Law Journal

Supreme Court to Take Up Pair of Conflicting Arbitration Rulings | New Jersey Law Journal

The New Jersey Supreme Court has agreed to hear appeals in a pair of conflicting arbitration rulings over whether the New Jersey Arbitration Act applies to employees who are exempt from the Federal Arbitration Act.
In Arafa v. Health Express, the Appellate Division held in an unpublished June 5 decision that a mandatory arbitration agreement does not apply to wage-and-hour claims by truck drivers who deliver pharmaceuticals under §1 of the Federal Arbitration Act, which exempts certain workers from arbitration if their jobs involve foreign or interstate commerce.
The other case, Colon v. Strategic Delivery Solutions, also concerns truck drivers bringing wage-and-hour claims. A different panel of the Appellate Division, in a published ruling on June 4, sent the case back to a trial court for a determination on whether plaintiffs were engaged in interstate commerce and, therefore, exempt from arbitration under §1 of the FAA. The panel in Colon also said that if the FAA doesn’t apply, the New Jersey Arbitration Act applies and requires arbitration. The FAA exemption that applied to plaintiffs in the Arafa and Colon cases was spelled out by the U.S. Supreme Court in a January ruling, New Prime v. Oliveira....

Thursday, October 17, 2019

North Carolina’s Legislative Maps Are Thrown Out by State Court Panel - The New York Times

Using the "free elections" clause of the state's Constitution North Carolina Common Cause struck a major blow against partisan gerrymandering  - the drawing of arbitrary electoral district lines in order to dilute the power of a political party's voters.   Much can be learned at the Common Cause North Carolina resource page for Common Cause v. Lewis.

North Carolina’s Legislative Maps Are Thrown Out by State Court Panel - The New York Times: A three-judge panel in Raleigh threw out North Carolina’s state legislative maps as an unconstitutional partisan gerrymander and ordered new maps drawn and approved by Sept. 18.

In a major blow to Republicans who control the Legislature in one of the nation’s most bitterly divided states, a state court panel threw out North Carolina’s state legislative maps as an unconstitutional partisan gerrymander and ordered lawmakers to draw up new ones in two weeks.
The ruling on Tuesday by a three-judge panel in Raleigh had the potential to bring to a decisive end a yearslong battle over gerrymandering in a critical swing state and indicated that state courts could act to rein in patently partisan electoral maps after the United States Supreme Court ruled in June, by a 5-to-4 margin, that federal courts could not.

Tuesday, October 8, 2019

OTHERWISE: The Second Founding: How the Civil War and Reconstruction Remade the Constitution

OTHERWISE: The Second Founding: How the Civil War and Reconstruction Remade the Constitution

Proposed Ballot Initiative would raise California MedMal Damages CapTortsProf Blog

 A $250,000 cap on non-economic damages in medmal cases - on the books since 1975 - faces the possibility of removal by popular initiative.

Proposed Ballot Initiative would raise California MedMal Damages Cap TortsProf Blog

Federal District Judge Marrero Dismisses Trump Lawsuit Over Tax Returns, Trump Appeals - Lawfare

Image result for victor marrero
Victor Marrero, a Senior federal judge, in New York's Southern District has dismissed Donald Trump's effort to block the tax return subpoena issued by Manhattan  District attorney Cyrus Vance, Jr.

In Trump v. Vance and Mazars Judge Marrero relied on well established principles of comity and deference that direct trial level judges to decline refuse to interfere in good faith state law prosecutions.  Relying on Middlesex Ethics Committee v. Garden State Bar Association  457 U.S. 423 (1982) the judge applied well worn considerations to deny Trump's motion to dismiss:

( 1) whether there is a pending state proceeding
( 2 ) that implicates an important state interest, and
( 3 ) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of his or her federal constitutional claims.

These factors all favor deference, as the state of New York has a deeply rooted interest in being able to enforce its tax laws, and the Supreme Court, New York County is certainly a forum that affords an "adequate opportunity" to raise constitutional claims. Marrero went on to point out that the 1982 opinion of the Department of Justice Office of Legal Counsel that a President my not be indicted does not bind the New York Court.  Nor is it of sufficient weight to compel intervention in a state criminal investigation.

Trump appealed, the Second Circuit granted an administrative stay to preserve the status quo, the U.S. Department of Justice intervened as amicus, and the court set an expedited schedule to resolve the issues - which are purely matters of law requiring no factual investigation.

MOTION ORDER, granting motion to expedite, consideration for stay pending appeal and the merits of the appeal. Appellant's brief is due on 10/11/2019 at 5:00pm. The United States Department of Justice's amicus brief in support of Appellant is due at the same time. Appellees' briefs are due on 10/15/2019 at 5:00pm. Appellant's reply brief isdue on 10/17/2019 at 5:00pm. Argument will be scheduled as early as the week of 10/21/2019. The temporary administrative stay remains in effect until argument is completed, by RJL, FILED.[2675026] [19-3204]
Federal District Court Dismisses Trump Lawsuit Over Tax Returns, Trump Appeals - Lawfare

by Mikhalla Fogel

Thursday, October 3, 2019

Remittur/Additur require consent of all parties - NJ Supreme Court

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The remedies of remittitur in New Jersey practice ​have required the consent of only one party.  If the plaintiff accepts the remitted amount the defendant is bound and judgment is entered. In additur if the defendant accepts the added amount the plaintiff is bound.  In Orientale - a UIM case - the additur left plaintiff with nothing because it did not exceed the negligent driver's insurance coverage.

In Orientale v. Jennings, a unanimous opinion authored by Justice Barry Albin, the court declares that a judge may not cram down a reduced or added verdict.  Unless both parties consent to the trial judge's proposal a new trial is mandated.  Effectively the remittitur or additur is now a judicially recommended settlement.

Tuesday, October 1, 2019

Federal Court rejects Trump Admin effort to end Flores settlement -ImmigrationProf Blog

Federal Court rejects Trump Admin effort to end Flores settlement -ImmigrationProf Blog September 28, 2019

It was a busy day in the federal courts yesterday, with several major (here and here) immigration decisions.  Human Rights Watch released this important update on the Trump administration's efforts to abrogate the Flores settlement that since the late 1990s has governed the detention of migrant children:
"A federal judge’s ruling on September 27, 2019, to block the Trump administration’s new rules allowing indefinite detention of children with their parents is a victory for the rights of migrant children, Human Rights Watch said today.
“The Trump administration’s new rules were completely inconsistent with legal requirements designed to protect children from the severe harm and trauma of detention,” said Clara Long, acting deputy Washington director at Human Rights Watch. “The decision sends a clear signal to the administration that child protection should be one of the central goals of US immigration policy.”
Judge Dolly Gee of the United States District Court for the Central District of California ruled that these regulations are inconsistent with the Flores settlement agreement, signed by the government in 1997 to resolve a lawsuit brought in 1985 challenging the US government’s detention of migrant children. Human Rights Watch submitted a friend-of-the-court brief to Judge Gee setting out relevant human rights standards and supporting lawyers for detained children who challenged the regulations.
A core principle and requirement for migrant children taken into detention under the Flores agreement is that they should be released as “expeditiously” as possible. The Trump administration’s regulations provide instead for the indefinite detention of children with their parents in federal immigration facilities pending resolution of their immigration proceedings. The regulations attempt to end court oversight of immigration detention of children, including a court order that children must not be held for more than 20 days in facilities not licensed for childcare. The regulations also eliminate the requirement that facilities holding children must be licensed by states.
Judge Gee’s decision states that the US government has not fulfilled its obligations under the agreement, finding, “The New Regulations’ deficiencies and other ongoing litigation in this case, more than 20 years after the Agreement was executed, evidence [the US government’s] lack of substantial compliance.”
Human Rights Watch and others have documented ongoing failures to adequately protect the rights of migrant children. Human Rights Watch research in 2014 and 2015 found that members of families held for prolonged periods suffered trauma, depression, and suicidal thoughts. Other studies of detained immigrant children have also found high rates of post-traumatic stress disorder, depression, and anxiety, and psychologists agree that “even brief detention can cause psychological trauma and induce long-term mental health risks for children."
Human Rights Watch submitted comments on the Flores regulation when the new regulations were proposed last fall, recommending that the administration should withdraw the rules and instead dedicate their efforts to advancing policies that safeguard the health, safety, and best interests of children and their families, not least through robust, good-faith compliance with the Flores Settlement Agreement.
On September 24, the administration announced that it would send families seeking asylum to Mexico under the Migrant Protection Protocols, rather than releasing them while their cases are pending. The program has already resulted in tens of thousands of asylum seekers being sent to Mexico, where they experience severe shortages of shelter, serious barriers to due process, and threats of kidnapping, extortion, and other violence.
The government claims that regulations allowing indefinite family detention and barriers to asylum are needed because asylum-seeking families do not appear for immigration court proceedings. But a pilot detention alternative program in which families and unaccompanied children had legal representation resulted in a 98 percent rate of appearance in court.