THE TORCH: CONTENTSBy Alvaro Huerta, NILC staff attorney
JULY 19, 2016

There’s an oft-quoted aphorism about the United States Supreme Court written by the late Justice Robert H. Jackson: “We are not final because we are infallible, but we are infallible only because we are final.”

The words reflect Justice Jackson’s recognition that the Supreme Court is the final arbiter of vexing national questions, not because the justices of the Court are always right, but because they get the final say.

Yet, in one of the most significant cases before the tribunal this term, the Supreme Court passed the buck. In United States v. Texas, a case examining the Executive’s ability to exercise prosecutorial discretion to defer the deportation of immigrants with strong ties to our country, the Court could not garner a majority. Due to the death of Justice Antonin Scalia earlier this year, the Court currently has only eight justices. The result: a handful of 4–4 tie votes and the uncertainty that comes with inconclusiveness.

The 4–4 tie in Texas resulted in an order from the Supreme Court that reads, in full, “The judgment is affirmed by an equally divided Court.” This solitary, nine-word sentence dashed the hopes of millions — immigrants and their citizen family members — who anxiously await clarity about their fate in this country.

The Court failed them. It failed all of us.

But is the Supreme Court to blame? The Senate has gone a record-breaking 125 days without granting a hearing to determine whether President Obama’s nominee to replace Justice Scalia is fit to serve on the nation’s highest court. That is downright shameful.

Neither infallible nor final, the Texas nondecision was a striking disappointment. And, more than any other case this year, Texas showed how the Court — without the full complement of its nine justices — has had its hands tied by Congress. The Supreme Court, like the country, seems a house divided.

But it wasn’t always this way. The Court has managed to decide a number of major, groundbreaking cases with five of nine justices carrying the day. Important civil rights, many of which we now take for granted, have been won by what might feel like the skin of their teeth.By 5–4 decisions, the Supreme Court has established a suspect’s right against self-incrimination (Miranda v. Arizona), the ability of universities to diversify their student bodies (Regents of the University of California v. Bakke), and the right to marry the person you love (Obergefell v. Hodges).

The Court also split 5–4 in National Federation of Independent Business v. Sebelius, which upheld major provisions of the Affordable Care Act and thereby allowed millions of Americans to keep the health insurance they need to live healthy and productive lives.

To be sure, many of our most treasured civil rights have been established by stronger majorities. But the Court has proven time and again that, when it’s at its full nine-justice capacity, it can get the job done. And the recognition of these inalienable rights has moved our country forward along the path toward justice.

We need a full Court in order for justice to be realized. The Senate must fill the vacancy left by Justice Scalia’s death more than five months ago. As the 4–4 tie in Texas proves, the political dog-and-pony show currently playing itself out in the Senate and being pushed by Republicans who will go to great lengths to stymie the president’s nominee has tied the hands of the Supreme Court. Justice, and all of us, suffer for it.

There’s a silver lining, at least when it comes to the Texas case. The Department of Justice has requested that the Court rehear the case. With any luck, the Court will grant the request and bring much-needed resolution to an issue that affects the whole country. But without a ninth justice, the Supreme Court is in danger of finding itself bound by further ties, and more nondecisions are sure to result.

Justice should not be left undone by stalemate. The stakes are far too high and the political maneuvering has hit a disappointing new low. It’s time for the Senate to do its job so that nine Supreme Court justices can do theirs.

THE TORCH: CONTENTSBy Shiu-Ming Cheer, NILC senior staff attorney
JULY 14, 2016

The National Immigration Law Center, along with the Youth Justice Coalition, CHIRLA, Policy Link and Urban Peace Institute, are co-sponsors of AB 2298, a California bill that would provide notification to adults who are entered into a gang database, a process for contesting that inclusion, and the ability to petition for removal from the system.

Gang databases have been used by law enforcement to criminalize people of color and immigrants, who are often targets of racial profiling. “Secret” databases like gang databases undermine fundamental values such as transparency and accountability. Adults have no way of knowing whether they are on a gang database, and no way of challenging their inclusion.

Being on a gang database leads to serious consequences such as increased probability of criminal conviction, sentence enhancements, loss of employment, and eviction from public housing. Alleged gang members are not eligible to apply for immigration relief under the Deferred Action for Childhood Arrivals (DACA) program and are considered a “priority” for deportation.

At a state Senate hearing, Juan Peña, an undocumented member of the Youth Justice Coalition, testified about his first police interrogation at age 10 at school. He described how law enforcement officers question him on a regular basis and explained that he hasn’t applied for DACA for fear of being on a gang database.

In another example of the real harms caused by gang databases, Aaron Harvey, a young black man from San Diego, was thrown into jail and faced a life sentence because his name was on a gang database. He was said to be associated with a gang that allegedly committed numerous shootings, and Harvey was charged with criminal street gang conspiracy to commit a felony even though he didn’t even live in the state when the shootings occurred. The judge in the case eventually dismissed the charges, but only after Mr. Harvey spent seven months in jail.

AB 2298 represents one step toward bringing transparency and accountability to the use of gang databases and would help address the criminalization faced by people of color simply for living in particular neighborhoods.

THE TORCH: CONTENTSBy Avideh Moussavian, NILC policy attorney
JUNE 30, 2016

The Supreme Court tie in U.S. v. Texas was a frustrating setback for millions of immigrant families, but the fight must continue and another question of historical significance for immigrants looms large: Will President Obama, in the final months of his administration, continue to round up and deport Central American mothers, children and youth seeking safe refuge in the United States?

Since the first days of 2016, the Department of Homeland Security (DHS) has engaged in a series of aggressive raids targeting hundreds of women, children and youth who have fled El Salvador, Guatemala, and Honduras. They come from countries that have suffered from conflicts and massive economic instability — largely as a result of wars and foreign trade policies that have benefited the U.S. while incubating treacherous conditions of organized crime and corruption and epidemic levels of violence, particularly gender-based violence. Like millions of other refugees before them and today — those of Syria, Somalia, Afghanistan and elsewhere — these are families and youth seeking protection. They have fled out of a life-threatening necessity to choose between life and near certain death. We should hardly call this a choice at all.

And yet, instead of embracing this population and offering safe haven, this is how our government has responded: It has used the terrifying tactic of raids — surprise, early morning arrival of multiple, heavily armed officers who provide false or misleading information to gain entry into homes or to arrest young people on their way to school or work.  It has also locked up mothers, children and youth who have survived trauma and violence, who overwhelmingly have strong claims for protection but who may have never had an attorney a real chance to explore their legal rights, or a fair day in court. For some of these families, they were only spared deportation after literally being pulled off a deportation flight at the very last minute because they were able to find a lawyer who filed an asylum claim for them. When the stakes are life and death, due process means protecting rights every step of the way

The Obama administration has tried to sanitize the brutal nature of these raids by calling these Central American mothers, children and youth “enforcement priorities” and saying that by imposing the harsh punishment of arrest, detention and deportation on those who manage to survive the treacherous journey to the U.S., it is sending a message of “deterrence.” It is telling the world that our message to refugees is, “Don’t come.”

We are so much better than this as a nation. When developing nations host an estimated 86 percent of the world’s refugees, we can certainly be more generous. We have been so much more welcoming in the past, and we must live up to our best values. The message to President Obama is: Stop the raids. Respond to this as an urgent refugee situation. Explore the root causes for the violence and poverty these Central Americans are fleeing. Make sure anyone facing deportation has a truly fair day in court. President Obama’s immigration legacy — and the credibility of some of our finest American values — depends on it.

THE TORCH: CONTENTSBy Melissa Keaney, NILC staff attorney
JUNE 28, 2016

The Supreme Court failed millions of immigrant families, who waited in vain for news about whether they could begin contributing more fully to their communities. We deserve better. The court can and should correct this grave error by agreeing to rehear the case when it is fully functional. And, the Court has a process to do just that — by granting what is called “rehearing” of the case.

Last week, the Court split evenly on whether the executive branch was within its lawful authority in announcing two initiatives — an expansion of Deferred Action for Childhood Arrivals and the creation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). These initiatives would allow millions of immigrants with long-term ties to the United States to apply for deportation deferral and work authorization. This non-decision leaves in place by default the Fifth Circuit Court of Appeals’ decision to keep these initiatives blocked, leaving immigrants in limbo.

Rehearing is appropriate, in fact, necessary, when the Supreme Court is deadlocked to ensure that cases of national significance do not remain unresolved simply because an unexpected vacancy prevents a majority decision. Granting rehearing in Texas is in line with the Court’s prior treatment of rehearing requests and absolutely essential where, as here, the issues are of such profound national significance to both American families and the American legal system.

Supreme Court Rule 44 essentially creates a procedure to allow the Court to re-examine its prior decisions. This is extraordinarily uncommon. Indeed, while it is extremely rare for rehearing to be granted when the case was decided by a majority, it is more common for the Court to re-hear cases where a vacancy prevented a majority opinion. And our legal system needs such a rule in cases like United States v. Texas.

Most recently this happened when Justice Roberts was appointed Chief Justice in the wake of Chief Justice Rehnquist’s death. Several cases, includingGarcetti v. Ceballos and Kansas v. Marsh were heard before the Court during the time between Rehnquist’s death and the confirmation of Justice Alito. The Justices, excluding Justice Alito, voted to rehear the cases upon the start of Justice Alito’s tenure on the bench.

History provides us with additional examples of the utility of this rule. During the Court’s 1954 term after Justice Jackson died suddenly of a heart attack, the Court heard re-argument in three cases after Justice Jackson was replaced by Justice Harlan.

The Court need not even wait for a ninth Justice to be confirmed before granting rehearing. When Justice McReynolds retired on January 31, 1941, the Court granted three rehearing petitions even before Justice Byrnes was confirmed to fill the vacancy.

Earlier today, the Supreme Court denied rehearing in the Friedrichs v. California Teachers Association. This should not deter the Court from rehearing the Texas case. Friedrichs is an entirely different situation as there was no nationwide injunction and presently there are dozens of cases on the issue working their way through the federal courts, providing ample opportunity for the Supreme Court to reconsider the issue. This is simply not true of Texas, where a nationwide injunction imposed by a single court would be allowed to stand without rehearing. Moreover, Friedrichs involved an explicit request to overturn settled Supreme Court law (the Abood case), which provides adequate guidance to the lower courts considering the issue at hand.

The Supreme Court must rehear the Texas case when nine Justices can decide it — not only for the sake of the families who await the opportunity to apply for DAPA and the DACA expansion, but also for all of our communities who would benefit from such an opening. Indeed, requesting a rehearing would cost the Obama administration little more than its time. And the cost of not doing so is untenable.