Resisting Mass Immigrant Prosecutions by Eric S. Fish :: SSRN

Resisting Mass Immigrant Prosecutions 

by Eric S. Fish :: SSRN

 

Yale Law Journal, Forthcoming

79 PagesPosted:

Eric S. Fish

University of California, Davis - School of Law

Date Written: December 9, 2023

Abstract

Over the last two decades, U.S. courts have convicted hundreds of thousands of Latin American defendants for misdemeanor immigration crimes. This has mostly happened through a federal program called “Operation Streamline.” In that program, immigrants are convicted without any semblance of due process. They are charged with the crime of entering the United States, have a brief conversation with a defense lawyer, plead guilty in a mass plea hearing with up to one hundred defendants at once, and receive their sentence—all in a single court appearance. In 2018, this program encountered its first organized resistance. In that year the Trump Administration tried to bring Operation Streamline to California for the first time. There, immigrant defendants and their lawyers did not acquiesce to a norm of immediate guilty pleas. Instead, they fought their cases by securing release on bond, raising objections, taking their cases to trial, and appealing their convictions. This unexpected resistance prevented federal prosecutors from processing dozens of cases per day. In 2021, something similar happened in Texas. Governor Greg Abbott created a state law version of Operation Streamline called “Operation Lone Star.” Immigrant defendants and their lawyers have resisted this program as well, securing release on bond and fighting through motions, writs, and trials.


This Article documents, analyzes, and draws lessons from these immigrants’ defiance. It does so using court records, transcripts, and firsthand accounts. In the process this Article uncovers the institutional logic of these mass immigrant prosecution systems, which have become a major feature of U.S. immigration policy. It shows how these systems prioritize efficiency above all else, resulting in inferior jail conditions, summary court proceedings, and coerced guilty pleas. In particular, it critiques the role defense lawyers typically play in these systems. Defense lawyers are expected to facilitate these prosecutions by coaching their clients to plead guilty quickly. Their presence gives the proceedings a false legitimacy, as these systems are designed to prevent lawyers from providing competent counsel. As this Article argues, defense lawyers should instead undermine these systems by helping defendants assert their rights and litigate. Indeed, immigrant defendants have powerful incentives to fight their cases if their lawyers will help them. The battles in San Diego and Texas reveal several effective strategies for immigrant defendants to resist mass criminalization through collective litigation. These include pushing for bail, going to trial, taking legal issues up on appeal, forcing prosecutors and judges to spend time on each case, and coordinating with outside groups like bail funds, immigration organizations, activists, and the media.

Supreme Court Will Hear Challenge to Abortion Pill Access - The New York Times

The Supreme Court said it was leaving abortion to the states.  Just you wait.  They'll have their hands all over it.

Women will be indicted, as will doctors, nurses, and people who buy airplane or bus tickets to aid a woman seeking an abortion away from her home state.

Women's autonomy as a value really means little or nothing to the 6 Catholic right wingers on the Supreme Court. - GWC

Supreme Court Will Hear Challenge to Abortion Pill Access - The New York Times

By Abbie VanSickle

The Biden administration had asked the justices to intervene after a three-judge panel of the United States Court of Appeals for the Fifth Circuit favored curbing distribution of the drug, mifepristone, appearing skeptical of the Food and Drug Administration’s regulation of the pill in recent years. In its ruling, the panel said that the pill would remain legal, but with significant restrictions on patients’ access, including prohibiting the medication from being sent by mail or prescribed by telemedicine.

The move sets up a high-stakes fight over the drug that could sharply curtail access to the medication, even in states where abortion remains legal. It could also have implications for the regulatory authority of the Food and Drug Administration, which approved the pill more than two decades ago.

The Supreme Court is now in the unusual position of ruling on abortion access even after its conservative majority declared that it would leave that question to elected officials. Until the court issues a decision, the F.D.A.’s approval of the drug remains in place, delaying the potential for abrupt limits on a medication that is used in more than half of all pregnancy terminations in the United States.

From enemy to Brother - John Connelly - video

 

Special Counsel asks SCOTUS to expedite review of Trump immunity claim

In rare cases the Supreme Court grants certiorari before judgment.  Its deference to Donald Trump's agenda yielded an increase in grant of the unusual remedy: certiorari before judgment.

- GWC

 No. 23-624 U.S. v. Donald J. Trump Petition.pdf

In the Supreme Court of the United States No. 23-310 UNITED STATES OF AMERICA, PETITIONER v. DONALD J. TRUMP ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT 

The Special Counsel, on behalf of the United States, respectfully petitions for a writ of certiorari before judgment to the United States Court of Appeals for the District of Columbia Circuit.1 

 OPINION BELOW The opinion and order of the district court (App., infra, 1a-59a) is not yet reported but is available at 2023 WL 8359833. 

***

STATEMENT 

This case presents a fundamental question at the heart of our democracy: whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin. 

The district court rejected respondent’s claims, correctly recognizing that former Presidents are not above the law and are accountable for their violations of federal criminal law while in office. App., infra, 7a-38a, 46a-53a. 

Respondent’s appeal of the ruling rejecting his immunity and related claims, however, suspends the trial of the charges against him, scheduled to begin on March 4, 2024. It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected. 

Respondent’s claims are profoundly mistaken, as the district court 3 held. But only this Court can definitively resolve them. 

The Court should grant a writ of certiorari before judgment to ensure that it can provide the expeditious resolution that this case warrants, just as it did in United States v. Nixon, 418 U.S. 683, 686-687 (1974). 

Israel and Palestine - Deep dive into the history 1882-1948 Ibish and Myers - Fordham

Prof.  David N. Myers (UCLA) and Dr. Hussein Ibish (Arab Gulf States Institute), hosted by Professor Magda Teter, co-director of Fordham University's Institute for Jewish Studies, began a four part dialog series on the history of Palestine and Israel.

- GWC

How Did We Get Here?: A Deep Dive into the History of Israel and Palestine Part One: Arabs and Jews: 1882-1948 The Hamas-engineered massacre of October 7, 2023 stunned and shocked Israel and the Jewish world to the core. It triggered a massive Israeli response that has reduced large parts of northern Gaza to rubble. Supporters of Israel and the Palestinians are more bitterly divided than ever, around the world and especially on college campuses. What are the roots of today’s conflict? And what does it portend for the future of the region? To gain insight into this latest stage in a brutal and divisive conflict that has ebbed and flowed for over a century, Fordham University’s Center for Jewish Studies is sponsoring a four-part series on the history of the conflict with Dr. Hussein Ibish and Prof. David Myers. In 2017-2018, Ibish and Myers came to campus to deliver a three-part series on the history of this conflict. Five years later, they return to Fordham to offer an in-depth perspective on the history of Israel-Palestine in light of the current moment. Dr. Hussein Ibish is a Senior Resident Scholar at the Arab Gulf States Institute in Washington (AGSIW). He is a weekly columnist for The National and previously served as a Senior Fellow at the American Task Force on Palestine. Prof. David N. Myers is Distinguished Professor and Sady and Ludwig Kahn Chair of Jewish History at UCLA. The author and editor of many books, he directs the UCLA Luskin Center for History and Policy and the UCLA Initiative to Study Hate. The event is co-presented by the Center for Jewish Studies, Center for Religion and Culture, Department of History, the International Studies Program, and the Middle Eastern Studies Program.

Transcript

Follow along using the transcript.

The Washington Post Walkout and Why There’s No Stopping the Newspaper Death Spiral - POLITICO

The death spiral...my wife worked for Parade magazine.  30 years ago 37 million weekly circulation.  Last month was their last print publication.

The once essential {for New Jersey lawyers} New Jersey Law Journal on the Editorial Board has ended print publication. 

- GWC

The Washington Post Walkout and Why There’s No Stopping the Newspaper Death Spiral - POLITICO

***As press baron Rupert Murdoch once said, newspapers are “rivers of gold.” But as he also later acknowledged, “Sometimes rivers dry up.” After a decade of supporting and expanding the paper, Bezos must fear that his entire newspaper investment will be swept out to sea. That’s not fearmongering. Newspaper trend lines are cratering and may prove to be too steep for Bezos’ tastes. According to the Pew Research Center, national weekday circulation peaked in 1972 at 63 million and has recently fallen to below 21 million. Newspaper advertising revenue peaked in 2006 at $49 billion and has now dropped below $10 billion, with only about 50 percent of it coming from the digital side. Meanwhile, Google alone pulls in about $76 billion in U.S. ad revenue a year.

Not only are the industry’s revenues and circulation gone to swirl in the toilet, but there are also fewer newspaper newsroom workers to organize. According to Pew Research, total newspaper newsroom jobs fell 57 percent between 2008 and 2020, and those losses are predicted to continue in the coming years.

About That University President’s Viral Video - TPM – Talking Points Memo

Elise Stefanik (R-NY)

Elise Stefanik,, a pro-Trump M.C.  - herself a Harvard grad - demanded that Claudine Gay, Harvard's first Black President - resign, saying 

ELISE STEFANIK: It does not depend on the context. The answer is yes. And this is why you should resign. These are unacceptable answers across the board

Stefanik was enraged by Gay's legalistic, equivocating responses in this exchange:

ELISE STEFANIK: Dr. Gay does calling for the genocide of Jews violate Harvard’s rules on bullying and harassment?

CLAUDINE GAY: The rules around bullying and harassment are quite specific. And if the context in which that language is used, amounts to bullying and harassment, then we take — we take action against it.

ELISE STEFANIK: Can you say yes to that question of, does calling for the genocide of Jews violate Harvard’s rules on bullying and harassment?

CLAUDINE GAY: Calling for the genocide of Jews is anti-Semitic.

Josh Marshall - as usual  has a lot to say that's worth considering.  But the Money Quote is this from the Times's Michelle Goldberg about three female elite university presidents getting bested by MAGA bully Elise Stefanik:

But while it might seem hard to believe that there’s any context that could make the responses of the college presidents OK, watching the whole hearing at least makes them more understandable. In the questioning before the now infamous exchange, you can see the trap Stefanik laid.

“You understand that the use of the term ‘intifada’ in the context of the Israeli-Arab conflict is indeed a call for violent armed resistance against the state of Israel, including violence against civilians and the genocide of Jews. Are you aware of that?” she asked Gay.

Gay responded that such language was “abhorrent.” Stefanik then badgered her to admit that students chanting about intifada were calling for genocide, and asked angrily whether that was against Harvard’s code of conduct. “Will admissions offers be rescinded or any disciplinary action be taken against students or applicants who say, ‘From the river to the sea’ or ‘intifada,’ advocating for the murder of Jews?” Gay repeated that such “hateful, reckless, offensive speech is personally abhorrent to me,” but said action would be taken only “when speech crosses into conduct.”

So later in the hearing, when Stefanik again started questioning Gay, Kornbluth and Magill about whether it was permissible for students to call for the genocide of the Jews, she was referring, it seemed clear, to common pro-Palestinian rhetoric and trying to get the university presidents to commit to disciplining those who use it. Doing so would be an egregious violation of free speech. After all, even if you’re disgusted by slogans like “From the river to the sea, Palestine will be free,” their meaning is contested in a way that, say, “Gas the Jews” is not. Finding themselves in a no-win situation, the university presidents resorted to bloodless bureaucratic contortions, and walked into a public relations disaster.

I don’t think this closes the book on broader question of double standards in a university context. The bobbled responses are related to a framework of social justice politics that isn’t inimical to Jews but simply doesn’t have an obvious place for them. But it does provide some helpful context in explaining how this messaging trainwreck came to pass. - JM

About That University President’s Viral Video - TPM – Talking Points Memo

Alabama Abortion Law Threatens NJ, State Attorney General Should Intervene In Legal Challenge | New Jersey Law Journal

Alabama Abortion Law Threatens NJ

 State Attorney General Should Intervene In Legal Challenge | New Jersey Law Journal

By Law Journal Editorial Board | December 01, 2023 at 02:19 PM

In Dobbs v. Jackson Women’s Health the United States Supreme Court majority found the Constitution of the United States to be silent on the right of a woman to elect abortion of a not yet viable unborn child. They returned the question to each state, leaving a host of untested choices to their political processes.

Alabama law criminalizes abortion.  Organizations and individuals within the state seek to facilitate women’s access to legal, out-of-state abortions. They have filed a lawsuit because they fear prosecution due to a threat by Steve Marshall, the state’s attorney general, to prosecute such acts as aiding and abetting an act which, if performed in Alabama, would be a crime. New Jersey is a jurisdiction where abortions may lawfully be procured, making travel or aiding travel to the state subject to criminal charges in Alabama.

In “An act concerning reproductive freedom” codified at N.J.S. 10:7-1 New Jersey's Legislature and Governor affirmed New Jersey law. It declares:

“It is both reasonable and necessary for the State to enable, facilitate, support, and safeguard the provision of high-quality, comprehensive reproductive and sexual health care…in consultation with health care professionals of their choosing, without fear of prosecution, discrimination, or unnecessary barriers to care. To achieve those ends, it shall be the policy of this State to: (1) explicitly guarantee, to every individual, the fundamental right to reproductive autonomy, which includes the right to contraception, the right to terminate a pregnancy, and the right to carry a pregnancy to term[.]”

But by abandoning constitutional protection of such a personal right—one of the most profound—the United States Supreme Court has licensed the opposite view. Though we may be one nation under God, liberty does not mean the same thing for all.

Abortion is banned in Alabama, which has the third highest maternal mortality rate in the country. It is the sixth poorest state. Because Marshall has threatened to prosecute under Alabama criminal law 13A-3-77  anyone assisting an Alabama woman to obtain an out of state the abortion, the Yellowhammer Fund, which has provided such assistance to women to obtain abortion services out of state, ceased providing such help. They have joined others to challenge Alabama in federal court. The United States Department of Justice has intervened on behalf of the plaintiffs.


Alabama law provides that “[a] conspiracy formed in this state to do an act beyond the state, which, if done in this state, would be a criminal offense, is indictable and punishable in this state in all respects as if such conspiracy had been to do such act in this state.” ALA Code § 13A-4-4; see also id. § 13A-2-23 (aiding and abetting statute). The aiding and abetting law places people in potential jeopardy because Ala. Code § 26-23H-4 provides a total ban on abortion regardless of fetal or maternal age, viability, or the circumstances leading to pregnancy. Thus neither incest nor rape is sufficient cause to terminate a pregnancy. Only to save the life of the mother may a pregnancy be terminated.

The Alabama attorney general now asserts, according to a statement of interest filed by the United States Department of Justice, that “individuals can be prosecuted if they form an agreement within Alabama to assist in obtaining an abortion in another state, regardless of whether the abortion is legal in that other state, if that abortion would be illegal if performed within Alabama.”

The United States filed the “Statement of Interest to prevent a breakdown in the federal system, preserve the Constitution’s original structure, and eliminate burdens on the efforts of individuals within Alabama seeking to travel to other states to engage in lawful conduct.”


The Dobbs majority did not address the 14th Amendment personhood argument pressed by Notre Dame natural law theorist John Finnis, the doctoral supervisor of Associate Justice Neil Gorsuch. But in Doe v. Bolton, 410 U.S. 179, 200 (1973) the Supreme Court held that the Privileges and Immunities Clause “protect[s] persons who enter Georgia seeking the medical services that are available there,” (including abortion). Similarly in Bigelow v. Virginia, 421 U.S. 809, 824 (1975) the court held that Virginia could not “prevent its residents from traveling to New York to obtain” abortion services legally available in that state, nor could Virginia “prosecute [its residents] for going there.”

As Justice Brett Kavanaugh explained in Dobbs, whether a state may “bar a resident of that state from traveling to another state to obtain an abortion” is “not especially difficult”—“the answer is no based on the constitutional right to interstate travel.”

The United States observes further the “Supreme Court has also held that states may not prevent third parties from assisting others in exercising their right to travel.” The Department of Justice statement of interest concludes, correctly in our view, that, “[A]ny contrary approach—whereby individuals are theoretically free to travel on their own, but states are permitted to prohibit third-party assistance for that travel—would severely undercut the right to travel itself. Just as a state cannot prohibit travel to other states to engage in conduct that is lawful in those other states, the state likewise cannot prohibit third-party assistance for such travel.”

It is essential that the morally profound choice that a woman makes to carry to term or to terminate a pregnancy deserves our respectful distance. That the Department of Justice chose to enter the Yellowhammer Fund case is welcome. New Jersey has decided to affirm unambiguously our long-standing recognition of a right to terminate a pregnancy before viability. Given the potential stakes for our citizens, visitors, and health care providers, we urge our attorney general to similarly intervene in the Alabama case to ensure that the interests of the people and state of New Jersey are presented to the court.

SCOTUS weighs medically necessary abortions

SCOTUS weighs medically necessary abortions - georgeconk@gmail.com - Gmail:  

Anti-abortion state officials are asking the US Supreme Court to overturn a person’s right to a medically necessary abortion as is currently required under federal law.

 

Two lawsuits, one brought by Idaho Attorney General Raul Labrador and the other by Idaho’s Republican legislature, target the federal Emergency Medical Treatment and Labor Act (EMTLA), a cornerstone of the US health care system. 

 

The act is a national mandate stipulating that if a person shows up at a hospital’s emergency room with a medical emergency, the hospital must treat them — regardless of the patient’s ability to pay.

 

That federal requirement could be read as dictating that emergency rooms have to provide abortions when medically necessary, even if the procedure is otherwise banned under state law. Idaho Republicans, however, want the Court to decide that those abortions should not be permitted. The state banned abortions in all stages of pregnancy, with exceptions for rape, incest, and saving the life of the pregnant person, after Roe v. Wade was overturned.

 

Idaho’s exceptions don’t fully align with EMTLA’s protections; while a medical situation endangering the life of the pregnant person would count as a medical emergency, the act doesn’t limit medically necessary procedures to life-or-death situations. It requires the hospital to offer treatment to the patient if the person’s health is in serious jeopardy, if there is a risk of serious impairment to their bodily functions, or if there is serious dysfunction of any body part or organ.

 

Imagine this scenario: A pregnant patient walks through the emergency room doors with an emergency that is not likely to kill the person but could irrevocably damage their uterus. Under the plain text of EMTLA, Vox’s Ian Millheiser writes, the hospital would be required to perform an abortion to prevent that loss of bodily function if the person desires it. Such a procedure would be illegal under Idaho law, however.

• Idaho’s case rests on two arguments about the EMTLA. One, that it’s invalid because federal employees legally cannot have control over the practice of medicine and, two, that the law’s wording requires hospitals to also stabilize a person’s “unborn child” if they are in peril during an ongoing medical emergency.
• But there are clear flaws in the state’s legal theory, the Biden administration counters. 
  • First, the provision about controlling the practice of medicine applies to federal employees, not to Congress, which has written all kinds of laws over the years concerning the provision of health care. 
  • Second, the hospital is not required to perform an abortion against a patient’s wishes. The law says the hospital must offer treatment to stabilize the patient. So in the tragic scenario when both the pregnant person and fetus are at risk, the hospital is supposed to explain the risks and benefits of different treatment options to the patient (or their family) and then follow the decision that the patient makes.
• The Constitution makes these “easy cases,” Ian writes. The US Constitution dictates that in situations where federal law and state law conflict, as appears to be the case with Idaho and EMTLA, the federal statute overrides the state’s policy.
• Nothing can be taken for granted with SCOTUS and abortion, however. A lower federal court initially ruled that EMTLA must be enforced for medically necessary abortions, but a panel of Trump-appointed appeals judges briefly stayed that decision before being reversed. The question now, Ian concludes, is whether the justices will follow the letter of the law.

Read the rest of Ian’s analysis of the newest SCOTUS abortion cases here.

CONGRESSMAN NADLER'S FLOOR SPEECH CONDEMING WORLDWIDE EXPLOSION OF ANTISEMTISM AND CALLING OUT HOUSE GOP'S INTENTIONAL DIVISIVENESS | Congressman Jerry Nadler

CONGRESSMAN NADLER'S FLOOR SPEECH CONDEMING WORLDWIDE EXPLOSION OF ANTISEMTISM AND CALLING OUT HOUSE GOP'S INTENTIONAL DIVISIVENESS | Congressman Jerry Nadler

Washington, December 5, 2023

Yesterday, Congressman Jerrold Nadler delivered the following remarks on the House Floor as prepared on H. Res. 894:

M. Speaker, I rise today in strong support of any and all serious and meaningful efforts to combat antisemitism. The explosion of antisemitism—around the world, on college campuses, and online—is so shocking that it was the subject of nearly every Jewish household’s Thanksgiving meal a week ago.

The Jewish community is absolutely right to consider this terrifying situation a “five alarm fire,” as Senator Schumer so appropriately put it in his moving speech to the nation just a few days ago.

Unfortunately, this resolution does absolutely nothing to genuinely counter the scourge of antisemitism, nor does it help bring us together with the unity of purpose that this topic merits.

Rather, it is another try, in a long series of veiled efforts by the GOP, to weaponize Jewish lives for political gains. It is another partisan gotcha game that amounts to cheap value signaling, not serious action. But, if ever there was a time for real action, it is now.

Today, in the face of the largest increase in antisemitism, both violent and virulent, in this nation’s history, we have a clear choice: we can abuse this moment to try to inflict inter-party political damage, or we can rise to the occasion, and do something real and powerful to actually help the Jewish community.

Just in the last few weeks, we have seen disgusting displays of outright antisemitism.

Over the weekend, protesters in Philadelphia targeted a Jewish business. It is plainly and unequivocally antisemitic to hold Jews collectively responsible for Israel’s actions.

In my district, vile antisemitic graffiti has been scrawled on apartment buildings on the Upper East Side. And, on the Upper West Side, two Jewish women were assaulted after calling out individuals who were despicably tearing down posters of Israeli hostages.

Last week in Brooklyn, three attackers violently attacked a fifteen-year-old Jewish boy, yelling “Free Palestine” as they punched and kicked the stranger.

This antisemitic hate is happening across the country. The Oakland City Council rejected a bid to denounce Hamas, as speaker after speaker espoused dangerously misguided and factually erroneous views at a deeply troubling antisemitic public hearing.

Since the Israel-Hamas war began, the GOP has seemed gleeful at their partisan wedging at the expense of the Jewish community, and they have utterly failed to do anything serious to address this crisis.

SCOTUS weighs medically necessary abortions -Ian Millhiser SLATE

SCOTUS weighs medically necessary abortions -Ian Millheiser 

Anti-abortion state officials are asking the US Supreme Court to overturn a person’s right to a medically necessary abortion as is currently required under federal law.

 

Two lawsuits, one brought by Idaho Attorney General Raul Labrador and the other by Idaho’s Republican legislature, target the federal Emergency Medical Treatment and Labor Act (EMTLA), a cornerstone of the US health care system. 

 

The act is a national mandate stipulating that if a person shows up at a hospital’s emergency room with a medical emergency, the hospital must treat them — regardless of the patient’s ability to pay.

 

That federal requirement could be read as dictating that emergency rooms have to provide abortions when medically necessary, even if the procedure is otherwise banned under state law. Idaho Republicans, however, want the Court to decide that those abortions should not be permitted. The state banned abortions in all stages of pregnancy, with exceptions for rape, incest, and saving the life of the pregnant person, after Roe v. Wade was overturned.

 

Idaho’s exceptions don’t fully align with EMTLA’s protections; while a medical situation endangering the life of the pregnant person would count as a medical emergency, the act doesn’t limit medically necessary procedures to life-or-death situations. It requires the hospital to offer treatment to the patient if the person’s health is in serious jeopardy, if there is a risk of serious impairment to their bodily functions, or if there is serious dysfunction of any body part or organ.

 

Imagine this scenario: A pregnant patient walks through the emergency room doors with an emergency that is not likely to kill the person but could irrevocably damage their uterus. Under the plain text of EMTLA, Vox’s Ian Millheiser writes, the hospital would be required to perform an abortion to prevent that loss of bodily function if the person desires it. Such a procedure would be illegal under Idaho law, however.

• Idaho’s case rests on two arguments about the EMTLA. One, that it’s invalid because federal employees legally cannot have control over the practice of medicine and, two, that the law’s wording requires hospitals to also stabilize a person’s “unborn child” if they are in peril during an ongoing medical emergency.
• But there are clear flaws in the state’s legal theory, the Biden administration counters. 
  • First, the provision about controlling the practice of medicine applies to federal employees, not to Congress, which has written all kinds of laws over the years concerning the provision of health care. 
  • Second, the hospital is not required to perform an abortion against a patient’s wishes. The law says the hospital must offer treatment to stabilize the patient. So in the tragic scenario when both the pregnant person and fetus are at risk, the hospital is supposed to explain the risks and benefits of different treatment options to the patient (or their family) and then follow the decision that the patient makes.
• The Constitution makes these “easy cases,” Ian writes. The US Constitution dictates that in situations where federal law and state law conflict, as appears to be the case with Idaho and EMTLA, the federal statute overrides the state’s policy.
• Nothing can be taken for granted with SCOTUS and abortion, however. A lower federal court initially ruled that EMTLA must be enforced for medically necessary abortions, but a panel of Trump-appointed appeals judges briefly stayed that decision before being reversed. The question now, Ian concludes, is whether the justices will follow the letter of the law.

Read the rest of Ian’s analysis of the newest SCOTUS abortion cases here.

Israel had a blueprint for the Oct. 7 attacks a year ago. Officials dismissed it. - The New York Times

Israel had a blueprint for the Oct. 7 attacks a year ago. Officials dismissed it. - The New York Times

Alabama Abortion Law Threatens NJ, Attorney General Should Intervene In Legal Challenge | Editorial New Jersey Law Journal

Editorial:  Alabama Abortion Law Threatens New Jersey - State Attorney General Should Intervene In Legal Challenge | New Jersey Law Journal

Alabama Abortion Law Threatens NJ, State Attorney General Should Intervene In Legal Challenge

As Justice Brett Kavanaugh explained in Dobbs, whether a state may “bar a resident of that state from traveling to another state to obtain an abortion” is “not especially difficult”—“the answer is nNO - based on the constitutional right to interstate travel.”

December 01, 2023 at 02:19 PM

 5 minute read

Constitutional Law

By N.J. Law Journal Editorial Board | December 01, 2023 at 02:19 PM

In Dobbs v. Jackson Women’s Health the United States Supreme Court majority found the Constitution of the United States to be silent on the right of a woman to elect abortion of a not yet viable unborn child. They returned the question to each state, leaving a host of untested choices to their political processes.

In Alabama, organizations and individuals within the state seek to facilitate women’s access to legal, out-of-state abortions. They have filed a lawsuit because they fear prosecution due to a threat by Steve Marshall, the state’s attorney general, to prosecute such acts as aiding and abetting an act which, if performed in Alabama, would be a crime. New Jersey is a jurisdiction where abortions may lawfully be procured, making travel or aiding travel to the state subject to criminal charges in Alabama.

In “An act concerning reproductive freedom” codified at N.J.S. 10:7-1 New Jerseys Legislature and Governor affirmed New Jersey law, the law declares:

“It is both reasonable and necessary for the State to enable, facilitate, support, and safeguard the provision of high-quality, comprehensive reproductive and sexual health care…in consultation with health care professionals of their choosing, without fear of prosecution, discrimination, or unnecessary barriers to care. To achieve those ends, it shall be the policy of this State to: (1) explicitly guarantee, to every individual, the fundamental right to reproductive autonomy, which includes the right to contraception, the right to terminate a pregnancy, and the right to carry a pregnancy to term[.]”

But by abandoning constitutional protection of such a personal right—one of the most profound—the Supreme Court has licensed the opposite view. Though we may be one nation under God, liberty does not mean the same thing for all.

Abortion is banned in Alabama, which has the third highest maternal mortality rate in the country. It is the sixth poorest state. Because Marshall has threatened to prosecute anyone assisting an Alabama woman to obtain an out of state the abortion, the Yellowhammer Fund, which has provided such assistance to women to obtain abortion services out of state, ceased providing such help. They have joined others to challenge Alabama in federal court. The United States Department of Justice has intervened on behalf of the plaintiffs.


Alabama law provides that “[a] conspiracy formed in this state to do an act beyond the state, which, if done in this state, would be a criminal offense, is indictable and punishable in this state in all respects as if such conspiracy had been to do such act in this state.” ALA Code § 13A-4-4; see also id. § 13A-2-23 (aiding and abetting statute). The aiding and abetting law places people in potential jeopardy because Ala. Code § 26-23H-4 provides a total ban on abortion regardless of fetal or maternal age, viability, or the circumstances leading to pregnancy. Thus neither incest nor rape is sufficient cause to terminate a pregnancy. Only to save the life of the mother may a pregnancy be terminated.

The attorney general now asserts, according to a statement of interest filed by the United States Department of Justice, that “individuals can be prosecuted if they form an agreement within Alabama to assist in obtaining an abortion in another state, regardless of whether the abortion is legal in that other state, if that abortion would be illegal if performed within Alabama.”

The United States filed a “Statement of Interest to prevent a breakdown in the federal system, preserve the Constitution’s original structure, and eliminate burdens on the efforts of individuals within Alabama seeking to travel to other states to engage in lawful conduct.”

KEEP READING

Oral Argument - Jarkesy v. Securities and Exchange Commission

Oral Argument - Jarkesy v. Securities and Exchange Commission 

'Justices divided over jury trial right in SEC enforcement actions  By Ronald Mann SCOTUSBLOG

 Wednesday’s argument in Securities and Exchange Commission v. Jarkesy was oddly distant from the decision of the lower court and the briefs and arguments of the parties. The decision of the U.S. Court of Appeals for the 5th Circuit – vigorously defended by George Jarkesy, the target of long-running SEC proceedings – accepted three separate constitutional challenges to the SEC’s apparatus. Specifically, it held that the Seventh Amendment right to a jury trial does not tolerate the imposition of civil penalties in an SEC administrative proceeding; that Congress cannot properly delegate to the SEC the decision whether it should use administrative action, rather than a civil action in a court, to redress alleged misconduct; and that the statutory procedures for appointment of the SEC’s administrative law judges violate the Constitution’s appointments clause. The justices said not a word about the second challenge, and they made only one offhand comment about the third challenge, when Justice Brett Kavanaugh suggested in passing that the administrative law judges’s appointments won’t pass muster with him.

The rest of an unusually long argument (more than two hours) was devoted to the first question. On that point, the justices are deeply divided. To give some context for the dispute, the Supreme Court has decided several cases over the last half century considering the extent to which Congress can call for adjudication of disputes before administrative agencies, where a jury is not available. One of the earliest of those cases, Atlas Roofing Co. v. Occupational Health and Safety Review Commission, validated the proceedings under which OSHA imposes penalties for workplace hazards in administrative proceedings. Several later cases, though, all involving disputes between private parties, have rejected various aspects of statutory schemes, most prominently the Bankruptcy Code, that shifted adjudication of disputes away from traditional civil courts (with juries).

As expected, some of the justices were wholly unsympathetic to the SEC. Justice Clarence Thomas, for example, has staked out a position in prior cases that the “public rights” doctrine – the idea that agencies can adjudicate “public” rights without a jury – cannot apply to any matter depriving an individual of property, so it would be surprising if he accepted the government’s argument here.

The other justice clearly dissatisfied with the non-jury administrative proceeding was Neil Gorsuch. He repeatedly ridiculed the argument of Principal Deputy Solicitor General Brian Fletcher, representing the SEC, that the jury trial right is wholly inapplicable to agency proceedings whenever the public rights doctrine permits Congress to authorize agency adjudication. For Gorsuch, that amounted to the view that “the Seventh Amendment would, on your account, dissipate, disappear, whatever verb you want to use.” For him, accepting that result would allow Congress to “overrule the preexisting Seventh Amendment right” simply by transferring an action to an agency.

By the end of the argument, Gorsuch had staked out his position with no ambiguity: because the elements of the administrative proceeding are similar to the elements of common-law fraud – “those elements all match up” – Congress can’t move the dispute to an agency (without a jury): “Congress is free to proscribe [fraud] and extend [the common-law action] any way it wants. It just can’t take away a person’s right to be heard before his peers.”

Having said that, another group of justices found the case just as easy on the other side. The leader here was Justice Elena Kagan. For her, Atlas Roofing made this an easy case. “Atlas Roofing says numerous times, it could not have been clearer, the Seventh Amendment is no bar to the creation of new rights or to their enforcement outside the regular courts of law.

When S. Michael McColloch, the lawyer for Jarkesy, rejected that understanding, she explained: “Congress is not required by the Seventh Amendment to choke the already crowded federal courts with new types of litigation or prevent it from committing some new types of litigation to administrative agencies with special confidence. …. [T]hat’s the issue. That’s the result. The Seventh Amendment is no bar.”

McColloch, understandably enough, did not concede to Kagan that he should lose. The result, though, was that Kagan repeatedly and with increasing acerbity cut him off to reiterate her position. So, a few minutes later she characterized McColloch’s reliance on the Court’s more recent cases as misguided because “[w]e’ve actually never had since Atlas Roofing another … public/private case, where there’s a government entity on one side of the V, and the reason that we’ve not had those in 50 or 60 years is because those have been thought the easy cases. …. Nobody has had the … chutzpah, to quote my people, to bring it up since Atlas Roofing.”

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Israel Has Already Lost - by John Ganz - Unpopular Front

Israel Has Already Lost - by John Ganz - Unpopular Front

JOHN GANZ

NOV 27, 2023

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Finally, some welcome news: Both sides in the war seem open to extending the pause in fighting (don’t call it a “ceasefire”) in order to facilitate the release of more hostages. Netanyahu is under significant domestic pressure to get the hostages back, but he and his cabinet may just welcome the time to consider what to do next. Although the Israeli Prime Minister has vowed to continue the war and destroy Hamas, there are signs that that is not an attainable goal. First of all, as the New York Times reports the rate of casualties among civilians in Gaza is horrific. Israel’s indiscriminate use of heavy munitions like 2000-lb. bombs in dense urban areas is causing death like some of the most terrible conflicts of the 20th century:

“It’s beyond anything that I’ve seen in my career,” said Marc Garlasco, a military adviser for the Dutch organization PAX and a former senior intelligence analyst at the Pentagon. To find a historical comparison for so many large bombs in such a small area, he said, we may “have to go back to Vietnam, or the Second World War.”

Israeli leadership has openly embraced comparisons to the Second World War:

In an address on Oct. 30, for example, Prime Minister Benjamin Netanyahu cited the accidental bombing of a children’s hospital by Britain’s Royal Air Force when it was targeting the Gestapo headquarters in Copenhagen in 1945. And during visits to Israel by Secretary of State Antony J. Blinken, Israeli officials privately invoked the 1945 U.S. atomic bombings of Hiroshima and Nagasaki, which together killed more than 100,000 people.

As awful as those analogies are on their own, what Israel doesn’t seem to understand is that a growing number of people don’t have the Allies in mind when the see the devastation in Gaza: They think of the other guys. This is maybe why Israeli hasbarists now have to take the absurd and intellectually insulting line that Hamas is somehow “worse than the Nazis.”

And what has all this death and destruction accomplished for the stated goal of destroying Hamas. Embarrassingly little: “Israel’s military estimates it has killed between 1,000 and 2,000 Hamas fighters out of a military force it believes is about 30,000 strong.” So, at the cost of between 12,000 and 14,000 civilians they have barely hurt Hamas. This is an inexact calculation obviously, but, if they are serious about destroying Hamas, and the rate of death remains comparable, then we would be looking at hundreds of thousands of deaths. At that point talk of “genocide” starts to sound less like rhetoric and more like reality. Some callous or cruel people may be able to say to themselves, “Well, they have it coming” or “This is war,” but that “message” is unlikely to resonate with the world public.

Now, you might object, “Well, it’s unfair that Hamas hides among the civilian population.” Sure, but it must be admitted that this is apparently an effective tactic. As they intended to do from the beginning, they have forced Israel into a compromised position. They knew that Israel, based on its military doctrine and domestic politics, would embark on a campaign whose brutality would quickly eclipse October 7th in the world’s eyes. And, yes, the blood of Palestinian children is also on Hamas: they are intentionally sacrificing them as part of a military and political strategy. "Will we have to pay a price? Yes, and we are ready to pay it. We are called a nation of martyrs, and we are proud to sacrifice martyrs,” as Ghazi Hamad, a member of Hamas political directorate told Lebanese TV last month.