Month: March 2017

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News

Theresa May’s letter triggering Brexit shows the UK is desperate for a deal on trade

The United Kingdom is desperate to secure a trade pact with the European Union as negotiations begin on their unwinding.

That’s one takeaway from a letter delivered on Tuesday by Prime Minister Theresa May to Donald Tusk, president of the European Council, that touches off what is likely to be two years of negotiations with the aim of untangling the U.K. from a pact that has governed its relations with the Continent for nearly half a century.

The six-page missive emphasizes what May terms a “deep and special partnership” between Britain and the EU that encompasses cooperation on both the economy and security. Thus, she writes, it will be necessary for the sides to come to terms on a relationship that will govern after Brexit. As May writes:

“This should be of greater scope and ambition than any such agreement before it so that it covers sectors crucial to our linked economies such as financial services. This will require detailed technical talks, but as the UK is an existing EU member, both sides have regulatory frameworks and standards that already match.”

In short, she wants a substitute for the single market that members of the EU, including Britain, currently enjoy. A failure to negotiate such a pact, would leave the U.K. to trade under rules set by the World Trade Organization. And as the Economist explains, that may present challenges for all parties.

“If Britain broke free from the EU, but kept the common external tariff in place, then a company moving parts between the EU and Britain could potentially face a tariff charge every time a border was crossed. Countries whose producers were hit by this development might make life difficult elsewhere for British negotiators.”

May warns that failure to come to terms on trade also “would mean or cooperation in the fight against crime and terrorism would be weakened.” Though the pacts that govern security and defense tend to exist independently of the EU, both judicial cooperation and trade disputes are heard by the European Court of Justice. May has vowed that Britain will fall outside the jurisdiction of the ECJ after Brexit.

There will be plenty to hammer out besides trade. That includes the status of EU citizens living in the U.K. and citizens of the U.K. who live in Europe. It also includes the parties’ ability to preserve an open land border between the U.K. and the Republic of Ireland, which belongs to the EU.

Of course, the EU has a say as well. Talks on unwinding and trade “will not happen” concurrently, Tusk said on Thursday.

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Favorite Places

Barbershop

You came in with a picky head, uneven and coarse, designed underneath a baseball cap, and you left swiftly afterward a new man, smelling sweetly of coconut oil and with a cut as sharp and clean as a swearword.

Zadie Smith, “White Teeth”

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News

The Affordable Care Act survives 

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Law

Judge Gorsuch and the ‘frozen truck driver’ case

At the opening day of his confirmation hearings on Tuesday, several Democratic members of the Senate Judiciary Committee blasted Judge Neil Gorsuch for his dissent in a case last summer in which he would have upheld a company’s firing Alphonse Maddin, who, after running out of gas on a freezing road in Illinois and enduring three hours in the cold, unhitched the trailer and drove off in search of fuel.

Maddin sued his employer, TransAm Trucking, which claims it fired him because he disregarded instructions from the company to stay put and that a repairperson would be sent. Maddin said he drove to get gas only after being unable to feel his feet and experiencing trouble breathing because of the cold, both possible signs of hypothermia.

An arbitrator ruled for Maddin, finding that federal law protects workers from being forced to operate vehicles in unsafe conditions. TransAm eventually appealed to the 10th Circuit, which backed Maddin.

In his dissent, Judge Gorsuch wrote:

It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one. The Department of Labor says that TransAm violated federal law, in particular, [citation omitted]. But that statute only forbids employers from firing employees who ‘refuse[] to operate a vehicle’ out of safety concerns. And, of course, nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle.

Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was and wait for help. The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet. And it isn’t our job to write one — or to allow the Department to write one in Congress’s place.

As Elie Mystal at Above the Law explains, “this is just kind of how conservative judges roll.” To illustrate, Mystal, who disagrees with Gorsuch’s reasoning, imagines a dialogue that goes as follows:

Victim: I have a problem.
Conservative: Does Congress say I should care?
Victim: Kinda!
Conservative: Not good enough.

All true. But I also disagree with Gorsuch because his adherence to the text of statutes aside, the judge has shown a willingness when it suits his outlook to embrace rulings that turn on their facts. At the hearing, Gorsuch spoke approvingly of a Supreme Court decision five years ago that concluded the Fourth Amendment requires police to obtain a search warrant before attaching a GPS tracking device to a suspect’s car to monitor his movements. In that case, police installed the device on the undercarriage of the suspect’s Jeep while it was parked in a public parking lot and for the 28 days that ensued used the device to record the vehicle’s movements.

In ruling that attaching the tracker to the suspect’s vehicle and using it to monitor his movements constituted a search within the meaning of the Fourth Amendment, the majority noted the invasion of the suspect’s private property and the duration of the incursion. As Justice Scalia wrote for the majority:

Over the next 28 days, the Government used the device to track the vehicle’s movements, and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4-week period.

Judges make distinctions based on facts all the time. In the case of the trucker, the record established that Maddin, after falling asleep in the unheated truck, received a call from his cousin, who testified that Maddin’s speech was slurred and he sounded confused. As noted, Maddin later told his supervisor that he was having difficulty breathing because of the cold.

The question for Judge Gorsuch is less one about reading the text strictly. It’s about reading the facts clearly. So why do facts seem to matter so little to Judge Gorsuch in the case of Maddin and so much to him in a case decided by Justice Scalia, the originalists’ hero whom Gorsuch would replace?

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News

South Africa marks Human Rights Day

South Africa will pause Tuesday to mark the anniversary of a massacre that highlighted the horror of apartheid and led the republic to enshrine human rights.

Human Rights Day, a public holiday, commemorates the events of March 21, 1960, when the Pan Africanist Congress (PAC), a political party that had formed a year earlier as a breakaway from the African National Congress (ANC), called on members to leave at home the passbooks the apartheid government used to control the movement of black, Indian and coloured people in urban areas, and offer themselves for arrest in an act of mass resistance.

In his autobiography, Nelson Mandela, the ANC leader whom the government imprisoned for 27 years and who later became South Africa’s first democratically elected president, describes the demonstration in Sharpeville, a township located about 35 miles south of Johannesburg.

“In the early afternoon, a crowd of several thousand surrounded the police station. The demonstrators were controlled and unarmed. The police force of seventy-five was greatly outnumbered and panicky. No one heard warning shots or an order to shoot, but suddenly, the police opened fire on the crowed and continued to shoot as the demonstrators turned and ran in fear. When the area had cleared, sixty-nine Africans lay dead, most of them shot in the back as they were fleeing. All told, more than seven hundred shorts had been fired into the crowd, wounding more than four hundred people, including dozens of women and children. It was a massacre, and the next day press photos displayed the savagery on front pages around the world.”

The atrocity led the United Nations Security Council, for the first time, to urge the government of South Africa to promote racial equality, and began an exodus of capital from the country. The killings also  hardened the resolve of Mandela and other leaders, who went on to advocate for action aimed at disrupting the apartheid state.

After Mandela became president, the country officially declared the day a public holiday and adopted a bill of rights that guarantees equality and human dignity.

President Jacob Zuma is expected to travel on Tuesday to the Eastern Cape province, where he will honor Steve Biko, the anti-apartheid leader who died 40 years ago, at the age of 30, in a Pretoria prison after being tortured by white officers of the government’s security service.

The PAC will host a march to commemorate the massacre at Sharpeville. “This is the most important day of our time as we commemorate the lives of [the] Sharpeville 69 and the fight against pass laws,” Tshego Mosala, the group’s spokesperson, told the Citizen newspaper.

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Law

Judge in Hawaii blocks revised Trump travel ban

The Trump administration has failed in its second try to ban travel to the U.S. by people from six majority Muslim countries.

The ban, which represented a do-over by the White House after its first attempt was blocked by the courts, likely violates the Constitution’s prohibition on government’s preferring one religion over another, the U.S. District Court in Honolulu ruled on Wednesday, a day before the ban was to take effect.

A “reasonable, objective observer – enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance – would conclude that the executive order was issued with a purpose to disfavor a particular religion,” Judge Derrick Watson wrote in a 43-page ruling that halts enforcement of the ban nationwide.

The lawsuit originated with Ismail Elshikh, Ph.D., a U.S. citizen and the Imam of the Muslim Association of Hawaii, who accuses the administration of violating the Establishment Clause of the First Amendment. In court papers, Dr. Elshikh cites a series of statements by the president, his staff and surrogates that the president set out to institute a ban on Muslims seeking entry to the U.S. Dr. Elshikh points to evidence that the travel ban is unlikely to strengthen national security.

The revised ban also contravenes the Fifth Amendment’s guarantee of due process, by preventing Dr. Elshikh’s mother-in-law, a citizen of Syria who last visited the U.S. in 2005, from obtaining a visa to visit her family in Hawaii. “Citizens may have a constitutionally protected interest in specific non-citizens’ ability to travel to the United States,” the plaintiffs write in court papers.

The State of Hawaii, the co-plaintiff in the lawsuit, alleges that the revised ban will impede its ability to recruit students and faculty from the affected countries, as well as depress travel to and tourism in the Aloha State.

President Trump called the ruling an “unprecedented judicial overreach” and vowed to appeal it to the Supreme Court. At least a dozen states have sued to block the revised travel ban.

Separately, a federal judge in Maryland ruled Thursday that enforcement of the revised travel ban would violate the Establishment Clause, citing statements by the president and administration officials.

Despite the White House’s revising its executive order with the aim of the ban’s passing constitutional muster, “the history of public statements continues to provide a convincing case that the purpose of the second executive order remains the realization of the long-envisioned Muslim ban,” Judge Theodore Chuang wrote.

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News

The Trump border wall may be a barrier to public safety

The wall that the Trump administration plans to build along the southern border may be a barrier to national security.

To help pay for the wall, the administration is considering cuts to the Coast Guard, the Transportation Security Administration, and the Federal Emergency Management Agency, the Washington Post reports.

The Coast Guard’s annual budget may be cut 14%, to about $7.8 billion. The cut would cover teams that detect weapons of mass destruction, detain smugglers, board suspect vessels and escort ships deemed to present or be at risk.

At TSA, the proposed budget would eliminate a program that sends agents and dogs to sweep airports, rail terminals and subway stations for explosives, as well as grants that local police departments use to pay for the cost of patrolling airports. Funds that FEMA uses to help state and local governments prepare for natural disasters and respond to emergencies would be slashed as well.

The proposed cuts reflect a reprioritization of security spending. Overall, the administration is considering boosting by 6.4%, to $43.8 billion, the budget for the Department of Homeland Security.

According to the Post, some $2.9 billion would go to funding the wall along the southern border. An additional $1.9 billon would pay for more immigration officers and border patrol agents, as well as beds for immigrants held in detention.

In February, the DHS published a preliminary blueprint for the wall that sheds light on what construction entails. In addition to planning, design, construction and maintenance, funds would pay for “attendant lighting, technology (including sensors), as well as patrol and access roads.”

As you might expect from this White House, the memos obligate the builders to consult with, among others, “nongovernmental entities having relevant experience” and to use “materials originated in the United States.”

Categories
Law

Why the revised Trump travel ban may still be unconstitutional

The revised Trump travel ban may satisfy the White House and its supporters but it remains to be seen whether the edict comports with the Constitution.

In an executive order issued Monday, the administration prohibits visits to the U.S. by people from six predominantly Muslim countries. The order, which supersedes an order issued Jan. 27, includes a series of changes that are designed to withstand court challenges. The changes include a recitation of the allegedly heightened risk that visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen present to national security.

The danger “of erroneously permitting entry” of a visitor from one of the six countries who may intend to commit an act of terror “is unacceptably high,” the order tells us. Yet it contains nothing that ties nationals from the affected countries directly to threats of terrorism within the U.S.

Country of citizenship “is unlikely to be a reliable indicator of potential terrorist activity,” the intelligence arm of the Department of Homeland Security (DHS) concluded in a three-page report published in February by the Associated Press. Of 82 people who engaged in activity inspired by a foreign terrorist organization since the start of the Syrian conflict in March 2011, “slightly more than half were native-born United States citizens,” according to the analysis, which DHS has termed incomplete.

The revised travel ban does include a recitation, purportedly culled from reports published annually by the State Department, that describes conditions that can breed terrorism generally in each of the six countries. But as the Economist observes, “the edit has the flavor of a student essay whose first version contained no support for its thesis and has been patched up with a visit to a couple of websites. The logic behind categorical bans from particular nations remains dubious.”

Like the order its replaces, the revised ban also suspends for four months the admission of refugees into the U.S. “The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation,” the president writes in the revised order. But “without any context, this 300 figure is meaningless,” the Washington Post noted.

That leaves the order vulnerable to a conclusion by the courts that it remains motivated by discrimination. “The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States,” a three-judge panel of the Ninth Circuit wrote in its Feb. 9 ruling denying the administration’s request to reinstate the ban after a federal judge in Seattle blocked its enforcement nationwide.

What’s more, the appeals court noted, the states that challenged the initial order offered evidence of “numerous statements” by the president of his intent to ban Muslims from entering the country. With its lack of evidence tying the travel ban to an actual threat to national security, the revised travel ban does little to undo that conclusion.

Washington state Attorney General Bob Ferguson, who sued to block the ban, said in a statement Monday that his office was reviewing the revised order to determine its impact on the state and his office’s next legal steps.

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Law

Trump expected to issue revised travel ban

President Trump is expected on Monday to sign an executive order banning travel to the U.S. by people from at least six Muslim countries that the White House hopes can withstand court challenges.

Though the extent of changes to the current order remained unclear on Sunday, they reportedly will include removing Iraq from the travel ban, which may continue to apply to visitors who arrive from Syria, Somalia, Sudan, Yemen, Iran and Libya. The order also is expected to clarify that lawful permanent residents and visa holders have due process rights and remove a provision that gave priority to refugee claims by Christians.

The Ninth Circuit last month refused to reinstate the ban, which was part of an executive order issued in January, after a federal judge blocked its effect nationwide.

The revised ban comes amid a flurry of charges by the president that his predecessor ordered investigators to listen to his phone calls during the presidential campaign as part of a government probe into alleged ties between the Trump campaign and Russia. President Obama has denied the charge.

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Law

Defendant compelled to appear in jail attire for a half day of jury selection not denied a fair trial, New York’s highest court rules

A man charged with armed robbery was not denied a fair trial after being compelled to wear sweatpants issued by the corrections department for half a day of jury selection at his trial, New York’s highest court has ruled in a decision that delineates the limits of a defendant’s ability to contest his appearance at trial in prison attire.

Though defendants, consistent with the presumption of innocence in criminal trials, are entitled to wear their own clothing in court, “these concerns are not implicated here… where there is no evidence that defendant’s orange correctional pants were visible to the jury and the clothing that was visible to the jury was clearly not identifiable as correctional garb” a five-judge panel of the Court of Appeals wrote in a decision Feb. 9.

Before jury selection began, Rafael Then, who was seated in a wheelchair, requested an adjournment of his trial from that day, a Thursday, to the following Monday, complaining that he did not have his own clothing because he had been unable to contact his family. The trial judge denied the request for a four-day adjournment but noted Then’s concerns and recessed the proceedings until after lunch, saying he would arrange for clothes to be delivered.

Following lunch and outside the presence of prospective jurors, the judge noted that Then wore orange correctional pants and a black knitted top, and that he was seated with his legs beneath a long, wide table farthest away in the courtroom from the jury, with his attorney seated between Then and jurors.

Jurors could not see Then’s legs unless they strained, the judge said, noting that the court would call the corrections department to ensure the defendant would be wearing civilian clothes the following day. When the prosecutor asked jurors whether they “notice[d] something about the defendant,” a prospective juror noted that Then was in a wheelchair. The prosecutor replied that the wheelchair had nothing to do with the case and instructed the jury to disregard it.

“Under the circumstances described here by the trial judge on the record, there is no merit to the defendant’s contention that he was denied a fair trial because he was compelled to appear before the jury in correctional garb,” the Court of Appeals wrote.

The Supreme Court has long held that requiring a defendant to stand trial in identifiable prison garb constitutes a denial of due process of law in violation of the 14th Amendment.

“Identifiable prison garb robs an accused of the respect and dignity accorded other participants in a trial and constitutionally due the accused as an element of the presumption of innocence, and surely tends to brand him in the eyes of the jurors with an unmistakable mark of guilt,” Justice William Brennan wrote in dissent from a ruling by the court in 1976 that affirmed the murder conviction of a Texas man who failed to object to being tried in jail clothes.