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Court OKs Deportation of Hundreds of Thousands of Immigrants, Another Says Homeland Security’s Head Might Have No Legal Authority

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Acting Department of Homeland Security (DHS) Secretary Chad Wolf is likely illegitimate, a federal court says. That means some of the Trump-era asylum rules Wolf presided over are on hold, too.

The appointment of former Acting Secretary Kevin McAleenan “was invalid under the agency’s applicable order of succession, and so he lacked the authority to amend the order of succession to ensure Wolf’s installation as Acting Secretary,” wrote Judge Paula Xinis in the U.S. District Court for the District of Maryland’s opinion, issued Friday (a day after President Donald Trump formally nominated Wolf—who has been acting DHS secretary since November—as the agency’s official head).

“Because Wolf filled the role of Acting Secretary without authority, he promulgated the challenged [asylum] rules also ‘in excess of…authority,’ and not ‘in accordance with the law,'” Xinis continued.

The lawsuit was brought by Casa de Maryland Inc. (CASA), the Asylum Seeker Advocacy Project (ASAP), and three other nonprofit groups, and it challenges 18 DHS rules “that overhaul the criteria for issuing work authorization to asylum applicants,” notes the court’s opinion. “Plaintiffs mount a full-throated attack on the challenged agency rules, invoking the Administrative Procedure Act (‘APA’), the Federal Vacancies Reform Act (‘FVRA’), and the Homeland Security Act (‘HSA’).”

The court concluded that “preliminary injunctive relief” was warranted for both CASA and ASAP (but not the other plaintiffs), temporarily blocking “enforcement of the following rule changes against CASA and ASAP’s members”: 

The Timeline Repeal Rule, 85 Fed. Reg. at 37,545 (printing parts of the regulations to be codified at 8 C.F.R. § 208.7(a)(1)); –

The 365-day waiting period, 85 Fed. Reg. at 38,626-28 (referenced throughout and as codified at 8 C.F.R. § 208.3(c)(3); § 208.7(a)(1)(ii), (a)(1)(iii)(E), and (b)(1)(i); and 8 C.F.R. § 274a.12(c)(8)); –

Removal of “deemed-complete” rule, 85 Fed. Reg. at 38,626 (codified at 8 C.F.R. § 208.3); –

The discretionary review rule, providing that agency is no longer required to issue EADs to eligible asylees, 85 Fed. Reg. at 38,628 (changes reflected at 8 C.F.R. § 274a.13(a)(1)); –

The one-year filing bar, 85 Fed. Reg. at 38,626 (codified at 8 C.F.R. § 208.7(a)(1)(iii)(F)); and –

The rule requiring submission of biometric information as part of EAD applications, 85 Fed. Reg. at 38,626 (codified at 8 C.F.R. §§ 208.7(a)(1)(i) and (a)(1)(iv)(E),

It’s a limited reprieve for now, but positive news nonetheless.

Another federal court ruling regarding immigration isn’t so heartening. This one from Monday says the Trump administration can force out hundreds of thousands of immigrants who reside legally in the U.S. under what’s referred to as “temporary protected status.”

Judges on the U.S. Court of Appeals ruled 2-1 to vacate a 2018 district court ruling that preliminarily blocked enforcement of the administration’s order, which end the protected status program for immigrants from El Salvador, Haiti, Nicaragua, and Sudan.

In finding “that the Trump administration acted within its authority in terminating legal protections” for these immigrants, the court “effectively strips legal immigration status from some 400,000 people, rendering them deportable if they do not voluntarily leave the country,” The New York Times reports.

FREE MARKETS

Congress is out of touch on tech companies. “While Democratic and Republican officials have been criticizing the conduct of U.S. ‘Big Tech’ companies, a growing disconnect separates those crusading politicians from the way a lot of consumers are feeling,” writes Art Raymond at Utah’s Deseret News, in a look at consumer polling and political posturing around tech products. “It turns out, a close look at the attitudes of the average Jills and Joes who use the tech products and platforms every day reveals that, frankly, they really don’t care that much.”

FREE MINDS

Trump is fearmongering about Iran again. “According to press reports, Iran may be planning an assassination, or other attack, against the United States in retaliation for the killing of terrorist leader [Qassem] Soleimani,” the president—who has lately been talking up his supposed anti-war bona fides—tweeted late last night. “Any attack by Iran, in any form, against the United States will be met with an attack on Iran that will be 1,000 times greater in magnitude!”

QUICK HITS

• Pennsylvania “Gov. Tom Wolf’s pandemic restrictions that required people to stay at home, placed size limits on gatherings and ordered ‘non-life-sustaining’ businesses to shut down are unconstitutional,” held U.S. District Judge William Stickman IV in a Monday ruling.

• The U.S. Court of Appeals for the 11th Circuit ruled that it’s OK for Florida to make people convicted of felonies who have served their sentences pay off all court debt before they regain the right to vote.

• Ruling parties use the instruments of power to ensure their dominance, example 8 billion:

• A new lawsuit alleges a range of abuses against immigrant detainees at the Irwin County Detention Center in Georgia. You can read all the allegations here.

• Who had “agreeing with Chuck Schumer on something” on their 2020 bingo card?

• All the clap emojis:

• Another good piece on the controversy surrounding the movie Cuties:

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“Due Process in a Fee Driven State”

You can read it here (just 25 pages); here’s the Introduction:

“No man,” states a venerable common law rule, “should be a judge in his own case.”[1]  The impartiality properly demanded of a judge is not possible to those who have a stake in the outcome of the adjudication.  According to the United States Supreme Court, this principle is “a mainstay of our system of government.”[2]

For this reason, the law has long required that judges not be parties to the cases they oversee, or closely related to parties in the case, or subject to rewards or penalties based on the outcome of the case. There can be no due process when the one passing judgment is predisposed to judge in favor of one side.

{A case that illustrates the breadth of interest that corrodes due process is Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813 (1986). Although the case arose in the context of judicial disqualification, its holding confirms the general principle that those with a stake in the outcome of a case should not participate in its resolution. In Lavoie, the Alabama Supreme Court issued an unsigned per curiam opinion holding that partial payment by an insurance company did not bar bad-faith suits or punitive damages.  Among those joining the majority was Justice Embry, who previously had filed both an individual action and a class action against insurance companies, raising similar issues.   When the case reached the United States Supreme Court, the Court held that “Justice Embry’s opinion for the Alabama Supreme Court had the clear and immediate effect of enhancing both the legal status and the settlement value of his own case.”  Thus, Justice Embry’s interest in the outcome of the case was “‘direct, personal, substantial, [and] pecuniary,” and he acted as ‘”a judge in his own case.'”}

These rules held well enough until recently, but we believe that it is time to take a broader look at what constitutes impartiality, and due process, in a judicial (and law enforcement) system that increasingly depends on fines, fees, and forfeitures not simply as punishments, but as major sources of operational funds. Inspired by two recent decisions from the United States Court of Appeals, we argue that when everyone participating in the justice system is aware that the system itself depends on sufficient revenue from fines, fees, and forfeitures, that very dependency is a conflict of interest sufficient to violate due process rights.

In this short article, we will look briefly at the history and law of judicial independence, after which we will describe the extent to which the modern judicial system—and, indeed, the entire law enforcement apparatus—depends upon extracting money from a steady stream of individuals who appear before it creating an untenable vested interest in charging and collecting and rendering a fundamentally unfair system.  We will then suggest some ways in which the resulting conflict of interest can be remedied.  At a time when funding, and defunding, law enforcement is the subject of much debate, it is worth considering the incentives that some sorts of funding can create.

And from the Conclusion:

To operate as legitimate institutions of government, our courts must be freed from serving as revenue centers.  If courts are to command respect; if their judgments are to be honored and observed; if, in fact, the most fundamental guarantee of the Constitution is to be valued, then our courts must be funded properly by state revenue.  The taint that adheres when courts depend on fines, fees, and forfeitures to operate must be removed and the criminalization of poverty must be permanently eliminated.

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via IFTTT

“Due Process in a Fee Driven State”

You can read it here (just 25 pages); here’s the Introduction:

“No man,” states a venerable common law rule, “should be a judge in his own case.”[1]  The impartiality properly demanded of a judge is not possible to those who have a stake in the outcome of the adjudication.  According to the United States Supreme Court, this principle is “a mainstay of our system of government.”[2]

For this reason, the law has long required that judges not be parties to the cases they oversee, or closely related to parties in the case, or subject to rewards or penalties based on the outcome of the case. There can be no due process when the one passing judgment is predisposed to judge in favor of one side.

{A case that illustrates the breadth of interest that corrodes due process is Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813 (1986). Although the case arose in the context of judicial disqualification, its holding confirms the general principle that those with a stake in the outcome of a case should not participate in its resolution. In Lavoie, the Alabama Supreme Court issued an unsigned per curiam opinion holding that partial payment by an insurance company did not bar bad-faith suits or punitive damages.  Among those joining the majority was Justice Embry, who previously had filed both an individual action and a class action against insurance companies, raising similar issues.   When the case reached the United States Supreme Court, the Court held that “Justice Embry’s opinion for the Alabama Supreme Court had the clear and immediate effect of enhancing both the legal status and the settlement value of his own case.”  Thus, Justice Embry’s interest in the outcome of the case was “‘direct, personal, substantial, [and] pecuniary,” and he acted as ‘”a judge in his own case.'”}

These rules held well enough until recently, but we believe that it is time to take a broader look at what constitutes impartiality, and due process, in a judicial (and law enforcement) system that increasingly depends on fines, fees, and forfeitures not simply as punishments, but as major sources of operational funds. Inspired by two recent decisions from the United States Court of Appeals, we argue that when everyone participating in the justice system is aware that the system itself depends on sufficient revenue from fines, fees, and forfeitures, that very dependency is a conflict of interest sufficient to violate due process rights.

In this short article, we will look briefly at the history and law of judicial independence, after which we will describe the extent to which the modern judicial system—and, indeed, the entire law enforcement apparatus—depends upon extracting money from a steady stream of individuals who appear before it creating an untenable vested interest in charging and collecting and rendering a fundamentally unfair system.  We will then suggest some ways in which the resulting conflict of interest can be remedied.  At a time when funding, and defunding, law enforcement is the subject of much debate, it is worth considering the incentives that some sorts of funding can create.

And from the Conclusion:

To operate as legitimate institutions of government, our courts must be freed from serving as revenue centers.  If courts are to command respect; if their judgments are to be honored and observed; if, in fact, the most fundamental guarantee of the Constitution is to be valued, then our courts must be funded properly by state revenue.  The taint that adheres when courts depend on fines, fees, and forfeitures to operate must be removed and the criminalization of poverty must be permanently eliminated.

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Jane’s Fighting Nerds

The Belfer Center has produced a distinctly idiosyncratic report ranking the world’s cyber powers – though they should have called it Jane’s Fighting Nerds. Bruce Schneier (@schneierblog) and I puzzle over its rankings, but at least the authors provided the underlying assessments that led them, among other oddities, to rank the Netherlands No. 5, and Israel nowhere in the top ten. The US is number one, but that’s partly due to the Center’s insistence that the US ranking should be boosted because we’re a norms superpower. In my book, that should have cost us a 20% discount off our offensive capabilities ranking.  Don’t agree? Download the report and pick your own fight!

Our interview today is with Cory Doctorow, diving deep on his pamphlet/book, “How to Destroy Surveillance Capitalism.” It’s a robust and entertaining three-cornered fight – me, Cory, and the absent Shoshana Zuboff, whose 700-page tome launched the surveillance capitalism meme. You’ll enjoy hearing me ask Cory, a Red Diaper Baby born to Trotskyists, to explain why his solution to tech’s overreach is so similar to Attorney General Bill Barr’s.

Elsewhere in the news roundup, Nate Jones (@n8jones81) and I unpack the Pandora’s Box of pain loosed by the European Court of Justice in Schrems II. Facebook is fighting a multilevel rearguard action – in the courts, in two capitals, and in its terms of service—to try to salvage its current business model.

I cover the latest Tok in the TikTok saga.  Oracle has won … something or other. Sultan Meghji (@sultanmeghji) and I puzzle over how the TikTok algorithm can stay in China while the dataset it’s training on remains in the United States. 

The Justice Department’s antitrust lawsuit against Google is getting nearer and nearer, judging from the thrashing in the underbrush. But we still don’t have a good idea what part of Google’s business will be targeted. Sultan explains the state of play. 

In a news flash as surprising as a report that the weather in San Diego will be sunny and fair, Microsoft has confirmed that the Chinese, Iranians, and Russians have launched cyber-attacks on Biden and Trump campaigns. For reasons unknown, the press can’t get enough of this thin gruel.

Bruce and Sultan chart the reasons and tactics behind the rise of ransomware and the importance of being a reliable criminal if you want to make money in extortion. 

Nate unpacks China’s global data security initiative so you don’t have to waste your time. The tl;dr is that other countries shouldn’t do any of the things China is doing or aspiring to do. 

Speaking of things you don’t have to read because we took the hit, Bruce tells us what’s in the new White House cyber-security policy for space systems. Really, it’s all “shoulds” and puts nobody in charge of enforcement. It would be kind to call it the beta version of a space cybersecurity policy.

Sultan argues that there may after all be a limit to the EU’s ability to get every part of the internet economy to enforce EU speech codes, and the domain name registries hope they’re on the other side of that line. 

You probably saw the “op-ed” that an AI “wrote,” explaining why humans need not fear it.   Bruce, Sultan, and I have plenty of fun mocking Open AI’s penchant for Open Hype.  But Bruce reminds us that sooner or later the hype will be real, and more than half of Twitter will be machines talking to other machines.  Judging from my Twitter feed, that will be an improvement. 

Finally,  This Week in Sore Losing: In honor of AWS’s brief complaining that it should have beat Microsoft to the lucrative JEDI contract, I update an old lawyer’s motto: If you’ve got the law on your side, pound the law. If you’ve got the facts, pound the facts. And if you’ve got neither, pound the Orange Man.

And more!

Download the 328th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

from Latest – Reason.com https://ift.tt/33s6n68
via IFTTT

Jane’s Fighting Nerds

The Belfer Center has produced a distinctly idiosyncratic report ranking the world’s cyber powers – though they should have called it Jane’s Fighting Nerds. Bruce Schneier (@schneierblog) and I puzzle over its rankings, but at least the authors provided the underlying assessments that led them, among other oddities, to rank the Netherlands No. 5, and Israel nowhere in the top ten. The US is number one, but that’s partly due to the Center’s insistence that the US ranking should be boosted because we’re a norms superpower. In my book, that should have cost us a 20% discount off our offensive capabilities ranking.  Don’t agree? Download the report and pick your own fight!

Our interview today is with Cory Doctorow, diving deep on his pamphlet/book, “How to Destroy Surveillance Capitalism.” It’s a robust and entertaining three-cornered fight – me, Cory, and the absent Shoshana Zuboff, whose 700-page tome launched the surveillance capitalism meme. You’ll enjoy hearing me ask Cory, a Red Diaper Baby born to Trotskyists, to explain why his solution to tech’s overreach is so similar to Attorney General Bill Barr’s.

Elsewhere in the news roundup, Nate Jones (@n8jones81) and I unpack the Pandora’s Box of pain loosed by the European Court of Justice in Schrems II. Facebook is fighting a multilevel rearguard action – in the courts, in two capitals, and in its terms of service—to try to salvage its current business model.

I cover the latest Tok in the TikTok saga.  Oracle has won … something or other. Sultan Meghji (@sultanmeghji) and I puzzle over how the TikTok algorithm can stay in China while the dataset it’s training on remains in the United States. 

The Justice Department’s antitrust lawsuit against Google is getting nearer and nearer, judging from the thrashing in the underbrush. But we still don’t have a good idea what part of Google’s business will be targeted. Sultan explains the state of play. 

In a news flash as surprising as a report that the weather in San Diego will be sunny and fair, Microsoft has confirmed that the Chinese, Iranians, and Russians have launched cyber-attacks on Biden and Trump campaigns. For reasons unknown, the press can’t get enough of this thin gruel.

Bruce and Sultan chart the reasons and tactics behind the rise of ransomware and the importance of being a reliable criminal if you want to make money in extortion. 

Nate unpacks China’s global data security initiative so you don’t have to waste your time. The tl;dr is that other countries shouldn’t do any of the things China is doing or aspiring to do. 

Speaking of things you don’t have to read because we took the hit, Bruce tells us what’s in the new White House cyber-security policy for space systems. Really, it’s all “shoulds” and puts nobody in charge of enforcement. It would be kind to call it the beta version of a space cybersecurity policy.

Sultan argues that there may after all be a limit to the EU’s ability to get every part of the internet economy to enforce EU speech codes, and the domain name registries hope they’re on the other side of that line. 

You probably saw the “op-ed” that an AI “wrote,” explaining why humans need not fear it.   Bruce, Sultan, and I have plenty of fun mocking Open AI’s penchant for Open Hype.  But Bruce reminds us that sooner or later the hype will be real, and more than half of Twitter will be machines talking to other machines.  Judging from my Twitter feed, that will be an improvement. 

Finally,  This Week in Sore Losing: In honor of AWS’s brief complaining that it should have beat Microsoft to the lucrative JEDI contract, I update an old lawyer’s motto: If you’ve got the law on your side, pound the law. If you’ve got the facts, pound the facts. And if you’ve got neither, pound the Orange Man.

And more!

Download the 328th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

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Is John Roberts the New Anthony Kennedy?   

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When Anthony Kennedy retired from the U.S. Supreme Court in 2018, he enjoyed the distinction of having been denounced by every major political faction in the country. For conservatives, Kennedy was the activist judge who “invented” a right to gay marriage. For progressives, he was the corporate shill who authored Citizens United. For libertarians, he was guilty of both enabling eminent domain abuse and squashing the rights of local medical marijuana users in favor of a national drug control scheme. At one point or another, everybody had cause to hate him.

Is John Roberts the new Kennedy? As the Supreme Court’s 2019–2020 term came to its dramatic close in July, the current chief justice not only solidified his role as a swing voter in highly charged cases but managed to annoy practically everybody along the way.

Will the religious right ever forgive Roberts for siding with the Court’s Democratic appointees to strike down an anti-abortion law? In Whole Woman’s Health v. Hellerstedt (2016), the chief justice dissented when the Court overturned a Texas statute that required abortion providers to have admitting privileges at local hospitals. But in this last term’s June Medical Services v. Russo, Roberts did the opposite, concurring in a decision that voided a nearly identical abortion regulation from Louisiana.

“I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” Roberts wrote in a lone concurrence. However, “stare decisis requires us, absent special circumstances, to treat like cases alike,” he continued. “The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”

Plenty of progressives praised Roberts for that. But their cheers turned to jeers when he delivered a huge victory just one day later for both school choice and religious liberty advocates. “A State need not subsidize private education,” Roberts wrote in Espinoza v. Montana Department of Revenue. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” The Court has “long recognized the rights of parents to direct ‘the religious upbringing’ of their children,” he observed. “Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution.”

And then there was Seila Law v. Consumer Financial Protection Bureau, in which the chief justice led the Court in declaring the single-director structure of the Consumer Financial Protection Bureau (CFPB) to be unconstitutional. “The CFPB Director has no boss, peers, or voters to report to,” Roberts pointed out. “Yet the Director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U.S. economy. The question before us is whether this arrangement violates the Constitution’s separation of powers.” Roberts held that it did. Not exactly a happy outcome for supporters of the administrative state.

Libertarians, of course, were criticizing Roberts before it was cool. In 2012’s National Federation of Independent Business v. Sebelius, Roberts characterized his vote to uphold the Affordable Care Act as a demonstration of conservative judicial restraint. “It is not our job to protect the people from the consequences of their political choices,” he wrote, invoking as a role model the early 20th century jurist Oliver Wendell Holmes Jr., who once declared, “If my fellow citizens want to go to Hell I will help them. It’s my job.” That deferential approach is the antithesis of the libertarian legal movement’s vision of the judiciary as a strong bulwark against overreaching government.

On many of the biggest and most contentious legal issues of our time, the chief justice stands at the center of the SCOTUS storm. Like it or not, this is the Roberts Court now.

 

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