Judge With a Political Ax to Grind Strikes Down Obama's Immigration Action

Sometimes you can tell when a judge is just itching to replace their robe with their politician's hat. Today, a federal district judge in Pennsylvania has struck down President Obama's recently announced executive actions on immigration as unconstitutional. But in so doing, Judge Arthur Schwab didn't just reach a wrong conclusion: He wrote his opinion in a way suggesting that he has put his ideological priorities ahead of the law.

The big questions in this case are: (1) Does the executive action apply to Elionardo Juarez-Escobar, the individual in this case? and (2) If so, is the executive action constitutional?

That's the order you'd expect the questions to be discussed, since judges are supposed to avoid making constitutional interpretations if they don't have to. But Judge Schwab – nominated to the bench by George W. Bush – tackled the constitutional question first, declaring the policy unconstitutional. Only then did he get to the second question, where he discussed how difficult it is to determine if the policy applies to Juarez-Escobar. About 2/3 of the way into the opinion, after addressing the constitutional issue, he writes:

[I]f President Obama's Executive Action is constitutional, the Court must determine its applicability to this Defendant.

Actually, he has that backwards: Only if the executive action applies to the defendant does the judge have any business addressing its constitutionality. His desire to jump to the constitutional question raises questions.

So do his needless editorial comments making clear that he disapproves of extending basic rights to undocumented immigrants. He writes:

Although it may seem counterintuitive that the Constitution, a document created to protect the citizens of this Nation, can endow undocumented immigrants illegally residing in this country with any constitutional rights, the Supreme Court of the United States has ruled that these individuals are entitled to be treated humanely and, at least on a procedural level, are to be afforded with certain constitutional rights and protections.

God forbid.

Adding to the question as to whether Schwab is being more judge or politician, he devotes an entire section to 2011 statements by President Obama that are not relevant to the issue but which far-right Republicans cite routinely. Obama made general comments about not being able to unilaterally change immigration law by executive order. He never said that he could not take any executive action, let alone the actions he took last month, which do not grant citizenship, give people legal status, or otherwise actually change the underlying immigration law.

And that's really the big picture here. Although there are over 11 million undocumented immigrants in the country, Congress only gives the administration the resources to deport about 3.5% of that number. Congress drafted the Homeland Security Act of 2002 with the recognition that decisions about priorities have to be made: In that law, Congress expressly gave the Department of Homeland Security the authority to "establish[] national immigration enforcement policies and priorities." And that's what President Obama is doing, just as other presidents have done before him. And just as the Roberts Court recognized in the 2012 case of Arizona v. U.S., where the Court wrote that "a principal feature of the removal system is the broad discretion exercised by immigration officials." President Obama is not doing anything even remotely beyond the pale.

So while President Obama's 2011 statements make great fodder for Fox News, they don't address the current executive actions, and the only reason to include them in a judicial opinion is to score political points.  Fortunately, this is just a district court ruling and is not likely to be the last word on this issue.

PFAW Foundation

Twelve More Judges to Go

When the Senate Judiciary Committee advanced three more judicial nominees to the Senate floor yesterday, the number of judges waiting to be confirmed went from nine to 12. There is no reason to push them off till next year. In fact, there is every reason to confirm them now, before senators end the 113th Congress and head home.

One of the three nominees advanced yesterday, Joan Azrack, would fill a vacancy in New York that the Administrative Office of U.S. Courts has formally designated a judicial emergency. That means there simply aren't enough judges there to get the work done in a timely manner. For Americans who count on having their day in court, that fundamental right is being undermined every day this vacancy remains unfilled.

Elizabeth Dillon would be the first woman to serve as a federal judge in Virginia's Western District. In fact, she would be the first federal judge in that district who isn't a white man. Why wait until next year to break that barrier?

Loretta Biggs would be the first African American woman federal judge in North Carolina. In fact, the state has only had two African American federal judges in its history, and neither of them is still in active service. While Biggs has the support of both her home state senators, we don't know if that would be true next year, when Republican Thom Tillis replaces Kay Hagan.

Why would anyone force a long and unnecessary delay on confirming these three highly qualified nominees, or the nine others who could have been confirmed weeks ago?

PFAW

New Study Examines Corporate Echo Chamber at Supreme Court

Reuters has released a study showing that a relatively small number of elite attorneys have been involved in 43% of the cases the Supreme Court has taken over the past few years. The Reuters study, entitled The Echo Chamber, shows that most of these lawyers represent corporate interests, and their participation in a case makes it much more likely that the Court will agree to hear it.

A Reuters examination of nine years of cases shows that 66 of the 17,000 lawyers who petitioned the Supreme Court succeeded at getting their clients' appeals heard at a remarkable rate. Their appeals were at least six times more likely to be accepted by the court than were all others filed by private lawyers during that period.

...

The Reuters examination of the Supreme Court's docket, the most comprehensive ever, suggests that the justices essentially have added a new criterion to whether the court takes an appeal – one that goes beyond the merits of a case and extends to the merits of the lawyer who is bringing it.

The results: a decided advantage for corporate America, and a growing insularity at the court. Some legal experts contend that the reliance on a small cluster of specialists, most working on behalf of businesses, has turned the Supreme Court into an echo chamber – a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed.

Of the 66 most successful lawyers, 51 worked for law firms that primarily represented corporate interests. In cases pitting the interests of customers, employees or other individuals against those of companies, a leading attorney was three times more likely to launch an appeal for business than for an individual, Reuters found.

In a SCOTUSBlog interview, study co-author Joan Biskupic discusses the outsized influence of corporate interests, including how it makes it harder for ordinary people to find the same caliber of high-powered lawyer as the corporate interests have available to them.

The domination of the docket by corporate interests has consequences for consumer and employee cases. Because corporate lawyers can't take those cases (based on firm-wide conflicts of interest), individuals are often left to a smaller, and collectively less successful, pool of lawyers.

In a nation founded upon Equal Justice Under Law, any indication that everyday Americans are systemically disadvantaged against powerful corporations at the Supreme Court must be taken seriously. Workers, consumers, and small business owners should certainly have the best legal representation possible.

Americans should also have the best judges possible, be it on the Supreme Court or any other court. Unfortunately, we have seen for some time now that a small but consistent majority of the Supreme Court is made up of conservative ideologues who are far more likely than not to rule in favor of corporate interests, even if they have to bend the law and ignore logic in order to do so.

That needs to change.

PFAW Foundation

Pregnant Workers' Rights at the Supreme Court

Today, the Supreme Court heard oral arguments in Peggy Young v. UPS, a case that will affect just how much protection is afforded by a federal law protecting pregnant workers from job discrimination. This is one of the cases discussed in PFAW Foundation's preview for the current Supreme Court term.

Young, a pregnant UPS driver, was told by her doctor that she shouldn't lift more than 20 pounds while she was pregnant. When the company refused her request for temporary light duty, she was forced to choose between her job and her pregnancy. She chose the latter, and she had to take unpaid leave for the rest of her pregnancy, which also meant a temporary loss of her health insurance.

UPS changed its policy a few weeks ago, and it now accommodates women in Young's position.  But the company claims its original policy was legal and not in violation of the 1978 Pregnancy Discrimination Act. The PDA says that job discrimination on the basis of pregnancy is a form of illegal sex discrimination (a point that should have been obvious, except the Supreme Court had interpreted Title VII otherwise a couple of years earlier).

But it does more than that: a second clause also specifically mandates the pregnant women "shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work."

Since UPS gave light duty to certain other workers who are similar in their ability or inability to work – ones with an on-the-job injury, the loss of their driving certification, or a permanent disability – Young sued, saying that her employer's treatment of her violated the PDA. But UPS says its policy was legal because it was "pregnancy-blind:" They claim they were treating Young the same way they'd have treated a non-pregnant employee whose injury doesn't fit any of the above conditions.

The Washington Post reports that at this morning's oral arguments, the Court "tread somewhat gingerly through an hour of technical arguments."

Justices Elena Kagan and Ruth Bader Ginsburg dominated the questioning of the company's lawyer, Caitlin J. Halligan.

Kagan said that when Congress passed the Pregnancy Discrimination Act of 1978, it meant to abolish the "stereotype" of women as marginal workers. She said the act forbids policies that put all pregnant women "on one side of the line," and instead forces employers to prove their actions are not discriminatory.

Justice Ginsburg also had a retort to one of Justice Scalia's criticisms of Young's arguments:

Justice Antonin Scalia [said that Young] seemed to be seeking special recognition under the 1978 act, akin to "most-favored nation" status.

Ginsburg later countered that the UPS policy seemed to convey "least-favored nation" status.

The question for the Court is what Congress intended when it passed the Pregnancy Discrimination Act. Did it truly intend for it to be so easy for companies like UPS to force women to choose between their job and their pregnancy? Or did Congress intend to protect pregnant workers who need their employers to make some reasonable temporary accommodation so they don't have to quit their jobs, lose their health insurance, and deprive their families of much-needed income?

PFAW Foundation

Mississippi Judge Striking Down Marriage Ban Explains the Role of Courts

Among the many things to be thankful for this Thanksgiving are our fundamental constitutional rights and the principled federal judges who make sure those rights are vindicated, even when popular majorities disagree. Judge Carlton Reeves reminded us of that yesterday in his ruling striking down Mississippi's ban that prevented gays and lesbians from marrying.

Judge Reeves has written a thorough opinion that respectfully considers all the arguments put forth by opponents of marriage equality and carefully explains why the marriage ban, popular as it may be in Mississippi, violates both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. At 72 pages, it is well worth reading if you want to see our Constitution and our federal court system at their best.

Among the many highlights is Judge Reeves's response to those who say the issue of marriage equality should be resolved in the political branches rather than through the courts. This is the position recently taken by the Sixth Circuit in a highly flawed opinion written by Judge Jeffrey Sutton. Judge Reeves explains:

In upholding four states' same-sex marriage bans, [the Sixth Circuit] expressed optimism that voters would change their minds on same-sex marriage, and argued that the courts should give them that opportunity. As that court wrote, "from the claimants' perspective, we have an eleven-year record marked by nearly as many successes as defeats and a widely held assumption that the future holds more promise than the past—if the federal courts will allow that future to take hold." (emphasis added).

The undersigned sees the judicial role differently. The courts do not wait out the political process when constitutional rights are being violated, especially when the political process caused the constitutional violations in the first place. The framers did not set up Article III to yield to "the superior force of an interested and overbearing majority." The Federalist No. 10. By honoring its obligation conferred by Article III [of the Constitution], the court does not diminish the political process. Rather, the court holds fast to the fundamental belief that constitutional principles that safeguard liberty and guarantee equality are not subject to the ballot. [footnote and internal citations removed]

Judge Reeves also provides an important historical context and the role courts have played in fulfilling the promises of our Constitution:

Under the Fourteenth Amendment, a state may not "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Although this text has not changed in nearly 150 years, our understanding of it has changed dramatically. Before turning to today's issue, then, it is worth considering some of those historical changes.

He then cites Supreme Court cases interpreting the Fourteenth Amendment to allow racial segregation, the blanket exclusion of women from practicing law, the criminalization of consensual sex between two men in their own home:

These are just a few examples. There are others. Even an abbreviated history shows that millions of Americans were once deemed ineligible for full Fourteenth Amendment protection. But we now take for granted that racial discrimination is wrong, that women cannot be excluded from the professions, and that gay and lesbian citizens are entitled to the same privacy in their sex lives that heterosexual citizens enjoy. We changed. These issues have faded into the background of everyday life.

The judiciary plays a unique role in this process. The above cases were not put to a vote of the American people. The votes had already been counted; the legislatures had already acted. Most voters thought nothing wrong with the status quo, unconstitutional as it may be.

This was always a risk of our representative democracy. James Madison wrote that "measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority." The Federalist No. 10. He and his colleagues "knew times can blind us to certain truths." Lawrence [v. Texas], 539 U.S. at 579. Mistakes would be made.

In their wisdom, though, they created a co-equal branch of government where aggrieved persons could try to show "that the laws once thought necessary and proper in fact serve only to oppress." Id. The judiciary has been charged with hearing these claims for more than two centuries. The will of the majority is usually affirmed. Every now and then, however, the majority has done an injustice to a person's rights, and the case must be resolved in his or her favor.

Judge Reeves, who was nominated to the bench by President Obama, explains well the importance of our nation's federal courts, while also demonstrating how important it is who serves on those courts.

PFAW Foundation

Ted Cruz Vows to Damage Texas Courts in Response to Obama's Immigration Action

In response to President Obama's upcoming action on immigration, Texas Sen. Ted Cruz has vowed to retaliate by sabotaging the federal court system in his own state.

No, that's not how he phrased it, but that would be the impact of his vow. Yesterday in Politico, Cruz wrote how he thinks the Senate should respond to the president's policy decisions on immigration enforcement:

If the president announces executive amnesty, the new Senate majority leader who takes over in January should announce that the 114th Congress will not confirm a single nominee—executive or judicial—outside of vital national security positions, so long as the illegal amnesty persists.

While such a refusal to perform one of the basic functions of the Senate would harm the entire nation, the damage in Texas would be particularly severe. No state has more judicial vacancies than the Lone Star State. No state even comes close.

As of today, Texas is suffering from eleven current federal court vacancies, with another four known to be opening in the next few months. The White House has worked closely with Sens. Cruz and Cornyn to identify potential nominees, but progress has been slow: Only six of the vacancies even have nominees; three of these have not yet had their committee hearings.

But the other three – for the Eastern and Western Districts – advanced through the Judiciary Committee this morning and are now ready for a confirmation vote by the full Senate. All three would fill vacancies formally designated as judicial emergencies by the Administrative Office of U.S. Courts. Confirming them would be a good start at addressing the vacancy crisis in Texas.

And that's what is it: a crisis. As we wrote earlier this month in a Huffington Post piece entitled Lame Duck Opportunity and Obligation: Confirm Judges:

The situation is even more dire in Texas, where the Senate has a chance to fill three vacancies in the Eastern and Western Districts. The Western District judgeship has been vacant since 2008, and the Judicial Conference has asked for five new judgeships there to carry the load on top of filling all the existing vacancies. Chief Judge Fred Biery discussed the need for new judges last year, saying, "It would be nice to get some help. We are pedaling as fast as we can on an increasingly rickety bicycle." Judge David Ezra, formerly of Hawaii, explained why he was moving to Texas to hear cases in the Western District: "This is corollary to having a big wild fire in the Southwest Border states, and fire fighters from Hawaii going there to help put out the fire."

The Eastern District of Texas is in similar need of getting its vacancies filled during the lame duck: Of the nation's 94 federal districts, only two have had more weighted filings per judgeship than the Eastern District, according to the Administrative Office of U.S. Courts' most recent statistics. Small wonder, then, that the Judicial Conference has asked for two new judgeships there: Even if every judgeship were filled, that just isn't enough. To make matters worse, two more judges in the Eastern District have announced their intention to retire or take senior status next year, making it all the more important to fill the current vacancies now.

Even if the three nominees are confirmed during the lame duck, as they should be, more vacancies in both of those districts will open up early next year. Texas would still have eight vacancies, a number that would rise to twelve in the next few months.

To express his fury at President Obama and rally his right-wing base, Cruz would work to make sure that all these vacancies remain unfilled, which would hurt a lot of innocent Texans.

PFAW

Reid: We Cannot Leave Without Confirming Nominees

The lame duck session of Congress presents the Senate with an opportunity – and the obligation – to confirm nominees. Speaking on the Senate floor yesterday, Senate Majority Leader Harry Reid and Judiciary Committee Chairman Patrick Leahy both discussed the importance of confirming judicial and executive nominations during the lame duck.

Sen. Reid made clear that the Senate cannot leave town for the year without finishing its work of confirming nominees:

[Although] we have been able to get a lot of judges done, we are going to wind up--by the time the Judiciary Committee continues to do the good work they do, we will probably have over 20 judges who need to be approved this Congress. Postcloture, under the rules we have, there is only 1 hour of time that can be used, so we can get through the judges very quickly. For sub-Cabinet officers it takes 8 hours, and we are normally willing to yield back our time, so 4 hours on every one of those.

We have scores--we are approaching, counting judges and all of the nominations, well over 150 who have been held up, people who have been waiting and waiting. These are jobs that are needed in our country; these are not new positions we have created.

So I would hope we can get past the bitterness that has been created in this body and get the nominations done. There is no reason a judge-to-be should have to wait for all this time, as the Senator from Vermont has indicated, just to get a vote. Whatever he is doing now has been put on hold, and this is throughout the whole government.

So I would hope we can get a lot of these done. If not, we are going to have to spend a lot of time here because we cannot leave this Congress with all these things undone. I hope we can work together, as I have indicated. [emphasis supplied]

Sen. Leahy noted that this would be consistent with lame duck sessions in the past:

So let us work together as we have in past lame duck sessions to get these nominees confirmed and serving their communities. In 2002, after the midterm elections, Senate Democrats worked to confirm all 20 of President Bush's judicial nominees pending on the Executive Calendar all but one by voice vote. In the 2006 lame duck session, after Senate Democrats won the majority in the elections, Democrats agreed to confirm all 14 of President Bush's judicial nominations pending on the Executive Calendar, but this package was blocked by a Republican Senator. In the most recent lame duck sessions, in 2010 and 2012, a total of 32 judicial nominees were confirmed. We should do the same now.

There is simply no legitimate reason not to hold confirmation votes on so many nominees who have been fully vetted and approved in committee. We need a government that functions, and we cannot have that if vital judicial and executive positions are left unfilled. America can do better than that.

PFAW

DC Circuit's Nina Pillard Writes Ruling Upholding ACA Contraception Coverage

A three-judge panel of the D.C. Circuit today upheld the contraception coverage requirement of the Affordable Care Act as it applies to religious nonprofits. The unanimous opinion in Priests For Life v. HHS was written by Obama nominee Nina Pillard.

Like in Hobby Lobby, the attack was based on the Religious Freedom Restoration Act (RFRA), under which any law imposing a substantial burden on religious exercise can be sustained only if it is the least restrictive means of achieving a compelling government purpose. But unlike Hobby Lobby, this case involves religious nonprofits rather than for-profit corporations. The law does not exclude the employees of religious nonprofits from its protection, but it does allow an accommodation so the employees can get the coverage without their employers having to contract, arrange, or pay for it. Instead, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. But some religious nonprofits assert that even the accommodation violates their religious liberty.

In contrast to Justice Alito and his far right colleagues in Hobby Lobby, Pillard devotes significant attention to why the ACA contraception coverage requirement is so vitally important. She writes:

The contraceptive coverage requirement derives from the ACA's prioritization of preventive care, and from Congress' recognition that such care has often been modeled on men's health needs and thus left women underinsured. As discussed below, Congress included the Women's Health Amendment in the ACA to remedy the problem that women were paying significantly more out of pocket for preventive care and thus often failed to seek preventive services, including consultations, prescriptions, and procedures relating to contraception. The medical evidence prompting the contraceptive coverage requirement showed that even minor obstacles to obtaining contraception led to more unplanned and risky pregnancies, with attendant adverse effects on women and their families.

She then explains how the regulations don't impose a substantial burden on the employers' religious exercise. They have no role whatsoever in the provision of contraception that they oppose. In addition, it isn't the employer's use of the accommodation that triggers the women's right to coverage; their right was triggered by Congress when it passed the ACA. Pillard gets to the nub of this effort to use religious liberty as a sword to diminish the rights of others:

Religious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out. They have no RFRA right to be free from the unease, or even anguish, of knowing that third parties are legally privileged or obligated to act in ways their religion abhors.

This will not be the last word on the matter. The same issue is being heard in other courts around the country, and the final disposition will almost certainly be by the Supreme Court.

PFAW Foundation

Supreme Court Review of ACA Case Muzzles the DC Circuit

The full D.C. Circuit's expected rejection of a transparently political attack on Affordable Care Act subsidies won't happen, due to the Supreme Court's decision last week to hear King v. Burwell, a Fourth Circuit case raising the same issue. This afternoon, the D.C. Circuit cancelled oral arguments scheduled for next month and put the case on hold pending the Supreme Court's decision in King.

ACA opponents launched similar cases in four different circuits, apparently hoping for a circuit split that would encourage the Roberts Court to take the case and (they hope) destroy Obamacare. It turns out they didn't need to try nearly that hard: At least four Justices on the Roberts Court are so eager to take the case that they didn't wait for a circuit split, or even for more than one circuit court to have a chance to address the issue. All that was needed was one case.

Assuming judges in other two circuits follow the D.C. Circuit's lead and put their own cases on hold, then the Court's so quickly taking the King case will have shut down the possibility of additional circuit courts exposing just how legally weak and transparently political the attack on the ACA subsidies is.

PFAW Foundation

Lame Duck Session Confirmations: PFAW Member Telebriefing

As Congress returns for the lame duck session after the midterm elections, People For the American Way hosted a member telebriefing on Monday on the critical work that needs to be completed this session to fill court vacancies. The call was kicked off by PFAW Director of Communications Drew Courtney who underscored the significant number of judicial and executive nominations the Senate faces, including President Obama’s new Attorney General nominee, Loretta Lynch.

PFAW members were joined on the call by Josh Hsu, Senior Counsel on the Senate Judiciary Committee, who shared Committee Chairman Sen. Patrick Leahy’s commitment to moving forward on nominees through the lame duck session. He pointed out that much of the GOP obstruction of judicial nominees occurs under the public radar, but it has an enormous impact.  If the judicial nominees who can be confirmed by year’s end are stalled instead, that will create a substantial and needless backlog in the next Congress that will delay judicial nominees down the line. 

Hsu also gave his thoughts on how Republican control of the Senate may impact judicial nominations. Hsu pointed out that the three most recent two-term presidents all faced opposition Congresses in the final two years of their presidencies, but all continued to move forward on many nominations.

PFAW Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon emphasized the importance of local activists keeping up the momentum around judicial nominations, both during the lame duck and over the next two years. Gordon called on PFAW activists to continue contacting their senators and writing to their local papers. When senators hear from constituents on an issue or see articles written in their local newspaper, Gordon said, they pay attention. Grassroots activism is critical to making sure senators get the message on the importance of the courts, and of confirming nominees before the end of the year.

You can listen to the full audio of the telebriefing here:

PFAW