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“A City Of The First Class”; Federal Court Upholds Ban On Undocumented Immigrant Renters, Ruling Cities Can Keep People Out

In a significant win for the anti-immigrant movement, a federal appeals court upheld a Nebraska city’s statute Friday that bans renting property to undocumented immigrants, holding that the law was neither preempted by federal law nor discriminatory.

In a 2-1 opinion, Judge James B. Loken rejected the rulings of several other federal appeals courts that federal immigration regulation precludes local prohibitions on the “harboring” of undocumented immigrants. Reasoning that cities and states are perfectly entitled to keep undocumented immigrants out of their borders, Loken and fellow Republican appointee Steven Colloton upheld a statute making it unlawful to hire, rent to, or otherwise “harbor” an undocumented person in Fremont, Nebraska, dubbed a “city of the first class.”

“Laws designed to deter, or even prohibit, unlawfully present aliens from residing within a particular locality are not tantamount to immigration laws establishing who may enter or remain in the country,” Loken, a former Nixon advisor and George H.W. Bush appointee, wrote for the majority.

In support of this proposition, Loken cites to a footnote in a U.S. Supreme Court decision that, ironically, affirmed the right of undocumented children to obtain a public education. In that footnote, the court recognized, as an aside totally separate from the contrary holding in the case, that a law is not necessarily invalid merely because it imposes an unequal burden on undocumented immigrants.

Fremont’s law does far more than impose an unequal burden on undocumented immigrants. In requiring all rental applicants to register with the city and prove their citizenship, the city of Fremont is not only effectively removing many undocumented immigrants from its jurisdiction; it is also making its own separate determination of lawful presence in the United States, without the assessment and due process that accompanies federal removal.

Just last year, the U.S. Supreme Court reiterated the breadth of federal supremacy in the field of immigration law in striking down key elements of Arizona’s controversial SB 1070, writing that no state or local government is allowed to “achieve its own immigration policy.” And as the U.S. Court of Appeals for the Third Circuit explained in striking down an almost identical provision prohibiting the “harboring” of illegal immigrants, these sorts of local laws attempt to remove undocumented persons from the city “based on a snapshot of their current immigration status, rather than based on a federal order of removal.” Dissenting judge Myron Bright explained:

This produces conflict with federal law because unlawful presence or undocumented status is not in every case equivalent with removability or with eventual removal. “Under federal law, an unlawful immigration status does not lead instantly, or inevitably, to removal.” Additionally, undocumented persons are afforded numerous procedural protections under federal law before an order of removal may issue. The federal government will sometimes exercise its discretion not to prosecute a removal, “thereby tacitly allow[ing] the presence of those whose technical status remains ‘illegal.’ ” Even once a removal proceeding is commenced, it is far from certain it will result in removal.

This ruling is a major win for Kansas Secretary of State Kris Kobach, who profited handsomely from drafting this provision for Fremont and several other cities around the country.

 

By: Nicole Flatow, Think Progress, July 1, 2013

July 5, 2013 Posted by | Immigrants, Immigration Reform | , , , , , , , | Leave a comment

Conservative Legal Luminaries Concede: The Individual Mandate Is No Unique Threat To Freedom, After All

As summarized one month ago in a post here on Jonathan Chait’s blog, conservatives reacted with fury to an article I wrote for Slate in which I pointed out that two major components of House Budget Committee Chair Paul Ryan’s Roadmap for America’s Future closely resemble the much-demonized “individual mandate” in the Affordable Care Act. In particular, I noted that the ACA provision requiring health insurance has precisely the same kind of impact on individual purchasing decisions as Ryan’s roadmap, and is, if anything, less coercive than the Roadmap proposal to provide a tax credit to individuals who purchase health insurance, as a replacement for the current exclusion from income of employer-sponsored health insurance. The ACA imposes a tax penalty on individuals who choose not to purchase health insurance. The Ryan Roadmap, on the other hand, provides a tax credit to individuals who choose to purchase health insurance—a technical distinction, I suggested, without an economic or other real-world difference.

National Review, the Weekly Standard, and Hot Air raised various objections to this point, which was seconded by Ezra Klein in the Washington Post and by Jonathan in TNR. But recent oral arguments before federal appeals courts hearing legal challenges to the ACA should quiet such protests once and for all. In these arguments, two of the most celebrated members of the Right’s legal elite acknowledged that there is no daylight between the ACA mandate-plus-penalty and a Ryan-type tax credit universally conceded to be constitutional.

The first instance of this occurred on June 1, when Sixth Circuit Judge Jeffrey Sutton, sitting on a three-judge panel in Cincinnati in a case brought by the conservative advocacy group Thomas More Law Center, floated the hypothetical idea of a tax credit alternative to the ACA approach. The Law Center’s attorney, Robert Muise, acknowledged that “you could provide a credit for health insurance, there’s no prohibition on that.” To which Judge Sutton responded:

You think it would be just as coercive to say to people, everybody pays the same additional tax, it’s a health care tax, everybody pays it and the only people that don’t pay it, i.e. get a credit, are those with insurance, you think that would be as coercive?

Muise contended that a tax credit was different because it encouraged activity—namely the purchase of health insurance—whereas the ACA provision penalized a “failure to act.” But Sutton didn’t buy it:

If that’s your view, then just pay the penalty, pay the penalty, don’t get insurance, don’t be forced to do anything, in that sense, if you think they’re equivalent, in that sense, no one is forced to do anything, because the economic incentives are the same in both settings, you can’t say the law requires you to buy it, the law just penalizes you if you don’t.

Judge Sutton is not the first person to observe that the ACA’s allegedly freedom-destroying mandate is operationally indistinguishable from commonplace tax incentive provisions. But, apart from having actual decisional authority on the matter, Sutton enters this space with formidable ideological and professional credentials. One of the first batch of appeals court nominees picked by President George W. Bush, Sutton, though only 42 years old, earned his front rank position as the energizer bunny of the Rehnquist Court’s late 1990’s drive to shrink Congress’ domestic regulatory authority in the name of “federalism.” As a lawyer, Sutton argued and won, usually by bitterly contested 5-4 margins, a raft of decisions striking or narrowing provisions of the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Violence Against Women Act, the Clean Water Act, and regulations implementing the 1964 Civil Rights Act, among others. He famously once told Legal Times, “I really believe in this federalism stuff.” Sutton’s professional standing was unquestioned; appointed by the Supreme Court in 2001 to represent a prison inmate, Sutton won a unanimous decision and unusually explicit praise from its author, Justice Ruth Ginsburg, for “his able representation.”

Of course, Sutton’s verbal acknowledgement that the ACA individual mandate is not uniquely coercive, emphatic though it appeared, is no guarantee that he will not strike down a law that Republican orthodoxy demonizes as a drastic expansion of federal power. Nevertheless, his on-the-record statement leaves the case against the ACA mandate resting at best on a hypertechnical foundation lacking in substance.

The second acknowledgement of the ACA mandate’s kinship with uncontroversial tax incentives occurred a week later in Atlanta, at the June 8 argument before a panel of the Eleventh Circuit Court of Appeals in the case against ACA brought by 26 Republican state attorneys general and governors. During the argument, the Republicans’ counsel, Paul Clement, attempted to sound a reasonable note. He said, “There’s lots of different ways that Congress could incentivize people to get to the exact same result. They could have passed a new tax and called it a tax, and then they could have given people a tax credit for paying for qualifying insurance.”

Again, Clement’s observation was not original. But in addition to being the Republican opponents’ lawyer, Clement also served—with universally acknowledged distinction—as George W. Bush’s Solicitor General. Recently, he made headlines by resigning his 7 figure-per-year partnership in the Atlanta-based firm, King & Spalding, when the firm precipitously withdrew from representing his client, the House of Representatives, to defend the federal Defense of Marriage Act, aka DOMA.

The significance of Clement’s functional equivalence concession was not lost on Eleventh Circuit Judge Stanley Marcus. Marcus, originally named a district judge by President Ronald Reagan and subsequently to his current appellate position by President Bill Clinton, drew a logical implication subtly different from Judge Sutton’s observation that the ACA mandate is not uniquely coercive, but one that is potentially even more troublesome for the ACA opponents’ case. “Isn’t that just another way,” he asked rhetorically:

“[O]f saying they [Congress] could have done what they did better? More efficaciously, more directly, and they regulated perhaps inefficaciously, maybe even foolishly, but if it’s rational, doesn’t my job stop at the water’s edge? Isn’t it for the legislative branch to make those kinds of calculations and determinations?”

No constitutional lawyer could mistake where Judge Marcus was heading. How is it possible, he was saying, for courts to dictate which of two methods Congress must choose to implement its constitutionally enumerated powers, when both methods generate “the exact same result?” Judicial micro-managing on such a granular level, Marcus knows, violates the fundamental, black-letter standard established nearly two centuries ago by Chief Justice John Marshall. In his iconic 1819 decision, McCulloch v. Maryland, Marshall broadly interpreted the constitutional grant of authority to Congress “to make all laws which shall be necessary and proper for carrying into execution” its enumerated powers: “Let the end be legitimate,” he wrote in words memorized by first-year law students, “let it be within the scope of the constitution, all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

To be sure, no one who listened to this Eleventh Circuit argument could predict the panels’ outcome any more confidently than could those who heard the previous week’s Sixth Circuit argument. But these unequivocal statements, by two of conservativism’s most eminent legal luminaries, that the ACA individual mandate is not a unique threat to Americans’ liberty after all, surely drain much of the juice from opponents’ legal case, and, ultimately, from their political case as well.

By: Simon Lazarus, Public Policy Counsel to the National Senior Citizens Law Center, Guest Post, The New Republic, June 17, 2011

June 26, 2011 Posted by | Affordable Care Act, Congress, Conservatives, Constitution, Consumers, Democracy, Freedom, GOP, Government, Health Reform, Ideology, Individual Mandate, Politics, Republicans, Right Wing | , , , , , , , , , | 1 Comment

Under The Supreme Court, Women May Get The Shaft In Walmart Suit

A class action suit that may include as many as 1.5 million women who claim sex discrimination on the job by Walmart is the biggest in U.S. history — though there are signs it won’t remain so for much longer.

The class action already has been approved by a federal judge and a federal appeals court, but it took a beating during argument at the U.S. Supreme Court last week.

Some analysts had said if the high court even accepted the case for review, instead of letting the lower-court verdict stand, it would be a sign that the 5-4 conservative majority wanted to strike the class certification.

Professor Deborah Hensler of Stanford Law School told the Chicago Tribune last year, “If the Supreme Court takes this case, it will signal this business-friendly court is hostile to class actions against corporate defendants.”

“This is the big one that will set the standards for all other class actions,” Robin S. Conrad, executive vice president of the National Chamber Litigation Center, an agency of the U.S. Chamber of Commerce, told The New York Times. The center filed several friend of the court briefs supporting Walmart at the Supreme Court.

The implication is that Walmart, headquartered in Bentonville, Ark., and one of the world’s largest corporations, is just too big to be the target of a class action.

The company tried to emphasize the massive nature of the class in its petition to the Supreme Court asking for review.

“This nationwide class includes every woman employed for any period of time over the past decade, in any of Walmart’s approximately 3,400 separately managed stores, 41 regions and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications,” the company’s petition said. “The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Walmart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company’s express anti-discrimination policy.”

The Supreme Court review does not involve the merits of the suit — whether Walmart is guilty of discrimination against women — but whether the enormous class action, driven by statistics, should be allowed to proceed or whether the women must sue individually or in small groups.

The case started in 2001 in San Francisco when six women filed suit claiming Walmart discrimination, in part because they were passed over for promotion in favor of men. One of the six says she was told, “It’s a man’s world.”

Washington attorney Joseph Sellers, who argued for the women before the Supreme Court last week, told United Press International last year, “There’s a substantial body of evidence that comes from Walmart’s own workforce data,” including “very sophisticated analysis” to show what company policy was. Despite the size of the class, Walmart can use that evidence in an attempt to show that there was no company-wide discrimination, just as plaintiffs can use the same evidence to show there was, he said.

“We have evidence that there is a culture at the company that condones or says women are second-class citizens,” Sellers said, some of it surfacing at managers’ meetings at strip clubs or at Hooters restaurants.

Sellers had to think fast on his feet last Tuesday — ironically during Women’s History Month — as justice after justice tried to shred his argument from the bench.

Four of the court’s five-member conservative majority — Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Samuel Alito — were expected to give Sellers a tough time, with Justice Clarence Thomas asking no questions, as is his custom.

The four-member liberal bloc was expected to give him help. The female members of the court, Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan did their best to steer the argument in favor of the class action. Ginsburg argued the concept of gender discrimination into law in a series of brilliant cases in the 1970s.

But the fourth member of the bloc, Justice Stephen Breyer, barely spoke Tuesday, and kept his cards close to his vest.

The time allotted for Walmart’s lawyer, Los Angeles attorney Theodore Boutrous Jr., was relatively calm except for pointed questions from the women, but Sellers got a grilling.

Roberts was the first to strike, asking Sellers, “Is it true that Walmart’s pay disparity across the company was less than the national average” for similar retailers?

“I don’t know that that’s a fair comparison,” Sellers replied, adding Walmart was making that comparison “with the general population, not with people in retail.”

Kennedy was more acerbic. “It’s not clear to me: What is the unlawful policy that Walmart has adopted,” he asked Sellers, “under your theory of the case?”

“Justice Kennedy, our theory is that Walmart provided to its managers unchecked discretion,” Sellers said, with women getting fewer opportunities and less pay even with more seniority and higher performance reviews.

“Your complaint faces in two directions,” Kennedy said from the bench. “No. 1, you said this is a culture where … the headquarters knows everything that’s going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there, and I’m just not sure what the (alleged) unlawful policy is.”

“There is no inconsistency any more than it’s inconsistent within Walmart’s own personnel procedures,” Sellers replied. A federal judge “found specific features of the pay and promotion process that are totally discretionary. There’s no guidance whatsoever about how to make those decisions. … But the company also has a very strong corporate culture … what they call the ‘Walmart way,’ and the purpose of that is to ensure that in these various stores that, contrary to what Walmart argues, that these are wholly independent facilities, that the decisions of the managers will be informed by the values the company provides to these managers in training.”

“Well, is that disparate treatment?,” Kennedy asked. “Disparate” or unequal treatment is a necessary element for discrimination.

“It is disparate treatment,” Sellers insisted. “It is a form of disparate treatment because they are making these decisions because of sex.”

Scalia echoed Kennedy.

“I’m getting whipsawed here,” he said. “On the one hand, you say the problem is that (local managers) were utterly subjective, and on the other hand you say there is … a strong corporate culture that guides all of this. Well, which is it? It’s either the individual supervisors are left on their own, or else there is a strong corporate culture that tells them what to do.”

Sellers replied that managers have broad discretion, but don’t make their decisions in a vacuum.

Scalia kept charging ahead.

“What do you know about … the unchallenged fact that the central company had a policy, an announced policy, against sex discrimination,” he asked, “so that it wasn’t totally subjective at the managerial level? It was, ‘You make these hiring decisions, but you do not make them on the basis of sex.’ Wasn’t that the central policy of the company?”

“That was a written policy,” Sellers said. “That was not the policy that was effectively communicated to the managers.”

Post-mortem evaluations of the argument were almost uniformly pessimistic for the class’s survival.

Lyle Denniston, dean emeritus of the Supreme Court press corps, wrote on SCOTUSBLOG.com that it took only a few minutes of argument “for a potentially fatal flaw … to stand out boldly.”

The basic claim in the suit is that Walmart maintains a common culture — “the Walmart Way” — to ensure uniformity in its 3,400 stores, Denniston wrote, but the corporate headquarters gives local store managers unlimited discretion to decide pay and promotions — resulting in lower pay and fewer promotions for women.

Kennedy’s point was those factors may seem contradictory.

But for a class action to survive under the Federal Rules of Civil Procedure, “the legal and factual issues must share commonality” at a minimum, Denniston wrote. Much of last week’s argument focused on that key requirement.

In the Los Angeles Times, an article partly written by veteran Supreme Court correspondent David Savage said the statistics may support the women. Lawyers say two-thirds of Walmart’s employees were women though men made up 86 percent of store managers when the stats were gathered five years ago.

But the article said “the tenor of Tuesday’s argument suggested that the massive, decade-old suit may run aground before it can move toward a trial.”

The Times said even though the male conservative justices were more aggressively negative, all of the justices expressed at least some reservations.

The justices should rule before the summer recess.

Bottom line from UPI: Justices could certainly change their minds, but based on their behavior during argument, look for the class to be struck down by at least a 5-4 vote, and a larger margin, 6-3 or 7-2 or more, is certainly within the realm of possibility.

By: Michael Kirkland, UPI.com, April 3, 2011

April 3, 2011 Posted by | Class Warfare, Conservatives, Corporations, Employment Descrimination, Equal Rights, Income Gap, Jobs, Labor, Republicans, Supreme Court, Walmart, Women, Womens Rights | , , , , , , , , , , , | Leave a comment

   

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