It's Not Going to Be Popular to Say This Around Some Circles, But the Supreme Court Did the Right Thing in Striking Down the U.S. District Court's Attempt to Alter Wisconsin's Voting Framework

I don't think it's any secret that I don't like Donald Trump.  He's got an authoritarian streak, he can't stand criticism, and he does try to grab power he doesn't have.  But, I'm not going to join those who have a knee-jerk reaction every time some branch of the U.S. Government takes an action or makes a decision that has the effect of decreasing the opportunities to cast or count votes and claim that it's part of some vast right-wing conspiracy to suppress the vote and keep Trump in power.  There are times when lower courts, in an effort to do what the trial judge subjectively thinks is the morally right, overstep their authority.  When that happens, the Supreme Court is within its authority to remind those lower courts that they need to work within the framework of the law and the Constitution.  Among those constitutional principles that is important to uphold are the separation of powers and federalism.  This is why the Supreme Court's decision on Monday, April 6th,addressing the election in the State of Wisconsin, although poorly written, was the right thing to do.

The Supreme Court's decision did not elaborate on the facts too well.  For that, I had to go back to the decision of the U.S. District Court for the Western District of Wisconsin dated April 2, 2020.  That decision addresses three consolidated cases, in all of which the plaintiffs challenge Wisconsin's election framework, within the context of the current COVID-19 crisis.

The entire world is the middle of a pandemic, from a virus which heretofore had not been identified, and had not infected humans.  That is SARS-CoV2, which many have been identifying by using the shorthand, the coronavirus.  It is actually just one, and indeed the newest, of many different types of coronaviruses, which, unfortunately, is confusing some people.  The virus causes the disease that the World Health Organization calls COVID-19.  COIVD-19 appears to cause mild symptoms in the vast majority of people.  But in some people, it can cause serious respiratory issues, and death.  There is some dispute over the death rate, but it appears to be between 1% and 3%, which is a much higher death rate than the flu.  In addition, the virus appears to be more contagious than the flu.  Because humans have not developed natural immunity to this virus yet, and because we currently do not have a vaccine against the virus, it has swept across the globe.  With the first case in humans being identified in December of 2019, as of the time of writing, over 1.2 million people have been infected worldwide.  Over 72,000 people have died from COVID-19.

COVID-19 has the potential to overwhelm the medical resources throughout the world.  The recommendation of medical professionals has been to isolate those who have the virus, quarantine those who have come in contact with those who have the virus, and generally practice social distancing and safe personal hygiene for everyone else.  Governors across the United States have issued stay-at-home orders, to prevent people from congregating and giving the virus more opportunities to spread.  Surfaces are being cleaned more often, and people are being advised to wash their hands often, to wear masks in public and to try not to touch their faces.  Most importantly, medical professionals have advised that we avoid large public gatherings.

However, this is an election year in the United States.  In November, Americans will go to the polls to either to choose a new president, or re-elect President Trump.  This spring, we are in the midst of primary season.  That is, the separate states and territories are holding primaries or caucuses to nominate the Democratic candidate for president.  In some states, they are holding elections for local and state offices at the same time as the primaries.  The COVID-19 crisis has caused numerous states who had elections scheduled for April to postpone them, or to expand the opportunity for mail-in absentee ballots, due to the risk of spreading the virus.  Wisconsin is not one of those states.

Wisconsin scheduled its election to be held on April 7, 2020 long before the current crisis. More well over a month, the Governor has been calling on the Wisconsin Legislature to postpone the election, or make it easier for people to cast mail-in absentee ballots.  The Legislature has not responded.  Meanwhile, because so many election workers are over the age of sixty, a category who is at a high risk of developing the severe symptoms of COVID-19, the rise in absentee ballots as well as opening the polls for the regular in-person voting, threatened to overwhelm Wisconsin election officials.  Many voters requested absentee ballots in the last month leading up to Election Day.  It was almost certain that thousands of applicants would not receive their absentee ballots before Election Day.

This is the situation where the U.S. District Court found itself.  Three different lawsuit lawsuits were filed to do something about the Wisconsin election, such as extending deadlines, and waiving witness requirements for mail-in ballots.  Under Wisconsin election law, ballots had to be received by April 7th in order to be counted.  Wisconsin law also gave the municipal canvassing boards until April 13th to certify the vote count to the counties.  The District Court, in a decision entitled Democratic National Committee, et al., v. Marge Bastelmann, et. al., issued a preliminary injunction which, among other things, permitted absentee ballots received by April 13th to be counted, regardless of when the ballots were postmarked.  A party submitted a request to stay the preliminary injunction (i.e. to prevent the injunction from taking effect) to Supreme Court Justice Brett Kavanaugh (submitting such a request to a Justice on the Supreme Court is normal Court procedure), who in turn referred the matter to the full Court.  In a decision that pitted the five conservative members of the Court against the four liberal members, the majority issued a per curiam opinion, meaning the five member majority spoke as one, granting the stay of the preliminary injunction.  The sole issue for the Court was whether the District Court overstepped its authority by permitting ballots postmarked after April 7th to be counted so long as they were received by April 13th.  That is, the Supreme Court permitted Wisconsin to continue to count ballots received by April 13th, so long as they were postmarked by Election Day, April 7th.

Many liberal pundits saw the Supreme Court's action as one of intentional voter suppression, aimed specifically at helping the Republican Party, and in particular Donald Trump, stay in power once the November presidential and congressional elections come around.

I read the Supreme Court's decision much differently.

Let me be clear, I am all in favor of taking action now to prepare for the November elections, and the possibility that the current crisis may still be around.  I, too, have some fear that Trump and the Republican Party may take some action that may negatively affect the elections.  After all, not only did Russia interfere in his favor in 2016, Trump has already been impeached for seeking Ukrainian interference in the 2020 election.  The only thing that saved him from removal was the fact that the Republicans control the Senate, and Senate Majority Leader Mitch McConnell made sure that the Senate trial was a farce with no witnesses being called at all.  I would love it if state legislatures acted now to address the November elections to expand the availability of early voting and mail-in voting just in case the coronavirus still has us sheltering in our homes at that time.

But let's be clear on some things.  Trump has no authority to do anything directly to change, postpone or cancel the November elections.  There is nothing in the Constitution, or any of the numerous federal statutes addressing the president's emergency powers that grant the president such authority.  How the November elections are to be run is a matter for the people of the several states, through their legislatures, to address.  Many Trump opponents fear he will nonetheless attempt to use the declaration of a national emergency to seize a power that is otherwise not granted to the presidency.

Yet, as I read the U.S. District Court decision, I noticed that the very thing that Trump's critics fear that he will do in the abstract, grab power that he doesn't have, is exactly what the District Court did.  In its opinion, the District Court essentially states, "There is a crisis out there that nobody is doing anything about, so I'm going to create a solution, whole cloth, despite their being no statute or constitutional provision giving me the authority to do so."  It is quite amazingly.  The decision is bereft of any citation to law or constitutional provision giving it the authority to interfere and fundamentally alter Wisconsin's election framework.  The District just says, "Voting is a fundamental right, so here's what you need to do."  That is, the District Court just assumed that it had the authority to make its own deadlines and impose them upon Wisconsin's state government as a whole.  Put another way, the U.S. District Court thought that it could act as if it were a legislature.

Again, if Trump had done this, those very same liberal pundits complaining about the Supreme Court would be up in arms over Trump's action.

Our Constitution engages in a dispersion of powers among not only the three branches of government, but also between the federal government and the government of the several states.  This is known as separation of powers when it refers to the three branches of the federal government, and federalism when it refers to the division of powers between the federal government and the governments of the several states.  They are the fundamental principles upon which our system of government is created, in order to avoid any one part of the government becoming too powerful and acting tyrannically.  In this regard, a court that oversteps its authority can be just as tyrannical as an authoritative executive.  The Supreme Court was absolutely within in prerogative to slap down a decision by a U.S. District Court that overstepped its power.

The lesson is two-fold.  First, all branches of government need to respect the limits placed on their authority by the Constitution.  Second, the state legislatures, as the law-making branch of government in their respective states, need to address the November elections now, before it becomes a crisis where well-intentioned courts will feel obligated to step in, regardless of the limits on judicial power.

By:  William J. Kovatch, Jr.

References

For general facts about the virus, I referred to the World Health Organization's website.

Information can also be found on the Centers for Disease Control's website.

The U.S. Supreme Court Decision can be found here:  Republican National Committee, et al., v. Democratic National Committee, et al., Slip Op. Crt. No. 19A1016 (U.S. Supreme Court April 6, 2020).

The U.S. District Court decision can be found here:  Democratic National Committee, et al., v. Marge Bostelmann, et al., Slip Op. Crt. No. 20-cv-249-wmc (W.D. Wis. April 2, 2020).

Johnson, Jake, "'One of the Most Brazen Acts of Voter Suppression in Modern Times,' as US Supreme Court Blocks Absentee Ballot Extension in Wisconsin," Common Dreams (April 7, 2020).

Liptak, Adam, "Supreme Court Blocks Extended Voting in Wisconsin," The New York Times (April 6, 2020).

Litman, Leah, "The Supreme Court's Wisconsin Decision Is a Terrible Sign for November," The Atlantic (April 7, 2020).

Perrett, Connor, "'Voter suppression on steroids': Wisconsin's decision tohold the state's in-person primary amid the COVID-19 pandemic will suppressvoters, advocates warn," Business Insider (April 7, 2020).

Stern, Mark Joseph, "The Supreme Court's Wisconsin Election Decision is 2020's Bush v. Gore," Slate (April 7, 2020).

In Immigation Court, the Deck is Stacked Against Daniel Ramirez and Other Immigrants

Last week in Washington State, Immigration and Customs Enforcement (ICE) arrested and detained Daniel Ramirez.  Ramirez now sits in the Northwest Detention Center in Tacoma Washington awaiting his hearing in Immigration Court on whether he should be removed from the United States.

Ramirez was granted protection pursuant to President Obama's Deferred Action for Childhood Arrivals (DACA) program.  DACA recipients essentially received a promise that the Government would not seek their removal for a certain period of time, and legal work authorization.  ICE seized Ramirez from his home despite the fact that his DACA protection had not expired.  Ramirez has no criminal convictions.

ICE contends that Ramirez admitted to "gang affiliation," and based on that persuaded U.S. Citizenship and Immigration Services (USCIS), the agency that grants and administers DACA, to revoke DACA protection.  Though his attorney, Ramirez denies gang membership.  He states that ICE has doctored records to make it appear as though he admitted gang affiliation, and that ICE has misconstrued statements he made during a custodial interrogation.  Moreover, ICE acted illegally and in direct contravention of the Constitution when it seized him, and questioned him aggressively without giving him an opportunity to consult with a lawyer.

Ramirez challenged his detention in the U.S. District Court for the Western District of Washington.  Friday, the court ruled that it would not order Ramirez be released, but that the Immigration Court must hold a hearing within one week on whether Ramirez should be released on bond.

The District Court's ruling is correct in that there is a procedure to seek Ramirez's release from detention while his removal case is pending before the Immigration Courts.  The Immigration Court should have the first shot of addressing whether Ramirez should be released on bond.  What is unusual, however, is that the District Court has given Ramirez permission to skip an appeal to the Board of Immigration Appeals (BIA) if bond is denied, and ask that the District Court hear his case on appeal.  This may be in recognition of the immense procedural hurdles that face Ramirez, indeed any alien, who seeks bond in Immigration Court while being detained for removal proceedings, faces.

When a person is detained, the Immigration Court can hold a hearing on whether to allow the person to be released on bond pending the resolution of his or her removal proceedings.  Because Ramirez has no criminal convictions, he may be released on bond.  He is not a mandatory detainee.

But a bond proceeding is not the same as a habeas corpus proceeding.  Through a habeas corpus proceeding, a court decides whether the Government is holding a person unlawfully.  A bond proceeding is simply a determination of whether a person should be released while further proceedings are pending, and if so the amount of a bond to be posted to secure his or her attendance at a later hearing.

The difference between these two proceedings shows the limits that the Immigration Courts have.  Despite the name, Immigration Courts as not part of the judiciary.  They are part of the Executive Branch.  Because of this, Immigration Courts lack powers of equity.  They cannot rule that an action of the Executive Branch is unconstitutional.  They cannot hold a person in contempt.  They cannot issue injunctions.  The powers of the Immigration Courts are strictly limited to what powers Congress has granted by statute.

The Immigration Courts are part of the Department of Justice.  They cannot hold an action of the Department of Homeland Security to be invalid.  In some instances, when the Department of Homeland Security has denied an application for immigration benefits, the Immigration Courts can hold a new hearing on the same application.  Thus, Immigration Courts can hear an application for asylum after it has been denied by USCIS, or review a petition to remove conditions on permanent residency, if initially denied by USCIS.  But without statutory authority, it cannot review other actions by the Department of Homeland Security.

This means that whether or not ICE violated the Constitution in arresting Ramirez and interrogating him without a lawyer present is not the deciding factor in the bond proceeding before the Immigration Court.  The questions before the Immigration Court will be whether Ramirez is a danger to the community, whether he is a risk of not appearing for his removal hearings, and whether there is any form of relief from removal available to him.  The constitutional violations could come into play if the Immigration Judge believes that the evidence obtained in violation of the Constitution should be suppressed in considering the bond motion.  But the constitutional arguments are not much more helpful in a bond proceeding.

For Ramirez, the key issues appear to be whether his so-called gang affiliation renders him a danger to the public, and whether there is relief from removal available to him.  In this regard, the reason he was able to stay in the United States before his arrest was the fact that he was granted protection pursuant to DACA.  DACA was not created by statute.  In fact, the President only created DACA when Congress failed to pass the DREAM Act, which would have given legal status to certain undocumented aliens who were brought to this country when they were children.  It is entirely a creature of executive discretion, not statute.  Because the Immigration Court lacks the ability to review every action of the Department of Homeland Security, the Immigration Court lacks the power to decide if DACA protection was rescinded illegally by USCIS.  This could be the issue that sinks Ramirez's request for bond.

But even assuming the Immigration Court were to grant Ramirez bond, that would not be the end of the case.  If bond is granted, the Government has the right to appeal it to the BIA, another arm of the Department of Justice.  If the Government appeals a bond determination, Ramirez would remain detained pending the outcome of the BIA appeal.  Even then, the Government has one more avenue of appeal, this time to the U.S. Court of Appeals for the judicial circuit where the Immigration Court lies.  In this instance, that is the 9th Circuit.

With all of these procedural barriers, it is difficult for an alien in detention to be released on bond, unless the Department of Homeland Security consents.  If the Immigration Judge denies bond, the prospect that a detained alien could be waiting in detention, which in just like being held in jail in all but name, for months and spending money on appeals while still waiting for a full hearing on the issue of removal itself is so daunting, that many aliens simply give up at this point, and agree to be returned to their home country.

It is perhaps because of this great disadvantage to alien detainees that the U.S. District Court gave Ramirez the ability to waive appeal to the BIA, and return to the District Court should he be denied bond.  The U.S. District Court, as part of the judiciary, does have equitable powers, and can entertain an argument that Ramirez's detention is unlawful because of the constitutional violations.  For this reason, the Ramirez case will continue to be an important case to watch when it comes to the potential of reigning in ICE enforcement raids.  This may well be the case that provides immigration law practitioners the tools needed to defend our clients' constitutional rights more effectively.

By:  William J. Kovatch, Jr.
For an appointment call (703) 837-8832
(571) 551-6069 (ESP)

Until Naturalization is Complete, Deportation is Possible

A Dominican national discovered the hard way that until you complete the oath ceremony, you are not a citizen and subject to deportation.  In the Third Circuit case of Duran-Pichardo v. Attorney General of the United States, Mr. Duran-Pichardo, a permanent resident, applied for citizenship and passed the tests at the interview in 1998.  But, INS told him that he would have to wait for a decision on his case.  Mr. Duran-Pichardo followed up with numerous telephone calls, but got no decision.  After some time, he gave up.

It was then that Mr. Duran-Pichardo got into trouble.  He pled guilty to a drug trafficking charge, which is an aggravated felony.  He was placed in removal proceedings.  His attempt to restart his naturalization case failed, as USCIS now denied his application based on the aggravated felony.  The Third Circuit, while sympathetic to the long delay in Government action in his naturalization case, upheld his order of deportation.

Had Duran-Pichardo simply taken advantage of a portion of the Immigration and Nationality Act that permitted him to sue the Government over his delayed naturalization application, he could have avoided deportation.  Section 336(b) of the Act provides that if a decision is not made within 120 days of the examination, an applicant can sue in the U.S. District Court, and have the court decide whether to grant naturalization.

I go into more detail in this article.

If your naturalization application is delayed for any reason, contact a knowledgeable immigration lawyer to determine if you should use section 336(b), and sue in U.S. District Court.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

William J. Kovatch, Jr. is admitted to practice in the U.S. District Court for Eastern Virginia.