Category: Legal, Laws, and Regs

Categories
Constitution Immigration

Subject to the jurisdiction…Trump just stated no one can enforce migration law against migrant mothers

Cropped official Trump photo where he looks like a criminal
Trump

Among the appalling, thoughtless, reckless, and inane executive orders trump issued on Day One, the one considered the most *bonkers is the one to end birthright citizenship.

Yes, is it is true that for over a 130 years, courts have deemed that birthright citizenship is protected by the 14th Amendment, which states:

All people born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

According to Trump’s executive order:

Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States:  (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

A lawsuit has already been filed on this order, and I expect others—many others, and not filed in Texas—to follow.

But let’s take a moment to look at Trump’s action another way.

What Trump is saying is that the parents of the child are not subject to jurisdiction, and therefore the the child isn’t a citizen. Technically, the ‘not subject to jurisdiction’ has meant that children of certain foreign diplomats who have immunity from our legal jurisdiction aren’t automatically made citizens when born in the US. According to USCIS:

A person born in the United States to a foreign diplomatic officer accredited to the United States is not subject to the jurisdiction of United States law. Therefore, that person cannot be considered a U.S. citizen at birth under the 14th Amendment to the United States Constitution. This person may, however, be considered a permanent resident at birth and able to receive a Green Card through creation of record.

The person born to a foreign diplomat is not a US citizen by birth because the child’s parent or parents are not subject to jurisdiction. So, what does that subject to jurisdiction mean, exactly?

What it means is the parent or parents can’t be arrested,  handcuffed,  detained, or charged with a crime—no matter how serious their actions—unless the country that sent the diplomat waives immunity.

Though the immigrant parent or parents are not diplomats, the concept of not subject to jurisdiction doesn’t mysteriously attain a new meaning in our legal system. It is a plainly understood concept that disdains wiggle room.

So, Trump is saying. is that the parents are not subject to jurisdiction. This means the parent or parents can’t be handcuffed, arrested, detained, charged with any crime, or taken to court. Our immigration laws would have no impact on these individuals, because they’re not subject to jurisdiction.

Ipso facto if Trump’s administration wants to continue removing birthright citizenship from the children of these immigrants, then his administration must agree not to handcuff, arrest, detain, charge, or take any other legal action against the child’s parent or parents. Since deportation is a legal action, the **US could not deport the parent.

Could the administration deport the children, instead? I don’t see how, according to our laws. If the administration wants to arrest, detain, and/or deport the child, they’d have to demonstrate the child was here in violation of immigration law,  but how could they do so?

According to Cornell Law:

Infancy is an affirmative defense offered by a defendant in a criminal proceeding that the defendant did not have the mens rea necessary to be charged with the crime on account of their age. In other words, the defendant was too young to possess the capacity to understand the wrongfulness of their actions.

In other words, the child did not have the criminal intent to violate the law, and therefore hasn’t broken any law. Even without the infant defense,  the baby did not enter the country illegally, they did not cross the border to our country illegally, they did not overstay their visa illegally…they’re just here. As if by magic. And we have no laws on magic.

Still, if Trump wishes to up his deportation numbers, he could deport the children…to the country of their birth. We can live with this.

*Most bonkers, if you ignore that whole Gulf of America thing.

**The executive branch can declare an individual as persona non grata and ask them to leave the country, but this concept is based on the fact that they were originally welcomed to the country, and it gets more twisty from there.

Substack link for commenting

Categories
Immigration Political

Doing the Math on Trump’s Deportation plans

Buoys placed by Texas in the Rio Grande
Buoys placed by Texas in the Rio Grande

I had planned on writing about Project 2025 and its emphasis on deportation—particularly its unstated but understood emphasis on deporting people Who Are Not White. But I got caught up in the sheer impossibility of Project 2025 and Trump’s grand ideas of mass deportation. What they want, is insane.

Thankfully, in the last few weeks, other media companies, profit or otherwise, took up the challenge. And they did a good job of it. I could have wished they had done so before people starting voting, but better late than never.

ProPublica has done a series of stories on immigration under the main title of The New Immigration. Not only did the nonprofit cover the data that overwhelmed me, it also put a human face on the story of immigration in our country.

Pérez’s assignment had him working at the bottom of a nearly 12-foot ballast tank, according to a subsequent police report; the walls were just 4 feet apart. That meant standing inside a metal cylinder, roughly twice the size of a household water heater, using an argon-gas torch whose flame can burn as hot as 20,000 degrees.

Something went very wrong that day. In the afternoon, workers noticed that Pérez, 20, had not come up for lunch. Friends and family began calling, with no answer.

His coworkers found him slumped over in the tank. “I couldn’t get to him because the gas was too strong,” one of them told ProPublica. “I started screaming, ‘Help! Help! Help!’”

This week, both the Vegas Sun and the Texas Observer noted how chaotic Trump’s deportation plans would be for their states of Nevada and Texas. Yet, in Texas at least, state legislators embrace Trump’s plans.

Texas is home to some 1.6 million undocumented immigrants—second in the United States only to California—and another roughly 1.4 million U.S. citizens in the state live with at least one undocumented family member, per studies in recent years. Unauthorized workers form the backbone of crucial sectors; in the construction industry, up to 50 percent of laborers building the state are undocumented, according to a 2013 survey by the advocacy organization Workers Defense Project. All this means Texas would be uniquely disrupted by Trump’s plans, with the tearing apart of mixed-status families placing a possibly massive burden on the state’s meager social services systems, and the exiling of a chunk of its workforce imperiling the economic development and affordability known as the so-called Texas Miracle.

Yet Texas’ statewide Republican leaders are full-throated backers of a Trump return to the White House, leaving dissenters within the immigrant and business community and Democratic Party to advocate for millions of Texas families, workers, and consumers.

Vox called into question the polls that seemingly show most people in the US favor mass deportation. As it found, though, the polls don’t capture the complexity of the issue. (Polls rarely do.)

CBS News noted the impossibly high price tag associated with mass deportation. Business Insider noted how mass deportation would gut the construction industry. And economists warn that Trump’s mass deportation in addition to his plans on tariffs on all international goods will tank the economy.

What is rarely mentioned in any of these news stories, however, is how truly unAmerican mass deportation is. We are a land of immigrants. Immigration and the diversity that has come from immigration are our greatest strengths. In addition, the people most targeted for deportation are not the enemy; migration is not an invasion. People from south and central America are our neighbors. Folks from the islands just off the main land are our neighbors.

To cherry pick out a few bad actors and ignore the vast numbers of hard-working people just trying to build a better life for their families is to ignore what drove our own ancestors to this land. And to target people of color—and make no mistake, Trump and his minions are targeting people of color—is to enshrine racism and bigotry. We the People becomes We the White People, or even We the White People Who Think the Same.

I’d like to think we’re better than that. Even with the ugliness that all too often forms the basis of a Trump rally, I still want to hold on to the belief that we’re better than that.

Categories
Government Legal, Laws, and Regs The Democratic Difference

It is none of our damn business

My Dad shortly before he died, wearing a t-shirt and holding his favorite carved wood cane
My Dad shortly before he died

My Dad, who was a Republican, would have liked Tim Walz. He would have liked Walz’s plain speaking. He would have admired his bluntness, especially when Walz says that a woman’s right to choose is none of our damn business. He would have liked it because that’s exactly what my Dad used to say.

When Dad and I talked about things like abortion, his philosophy was, “It’s none of my business what happens between a woman and a doctor. This is no one’s business but the woman and her doctor.”

He felt the same thing about same-sex marriage: it was none of his business. I know he would feel the same thing about trans treatment: it was none of his business.

He took that same belief to what he expected from his elected representatives: interfering in a woman’s right to healthcare isn’t the government’s business. Whether a woman has an abortion or not isn’t the business of the state legislature. Or Congress. They have work to do that is their business, and abortion, same-sex marriage,  pronoun use, trans healthcare, what books people read … none of these are their damn business.

My Dad was born in 1910. He didn’t always understand why a woman would want an abortion, but her having one, was none of his business. He didn’t fully understand the LGBTQ+ community, but he never expressed disapproval of any member of the community because it wasn’t his business to approve or disapprove. He felt he didn’t have the right to make judgements on how other people lived as long as how they lived didn’t hurt anyone else.

It was none of his damn business. And he fought in World War II as part of the 82nd Airborne to ensure that others didn’t interfere where they had no right to be.

Now, please take some time to watch Lawrence O’Donnell rip apart today’s media in one of his most eloquent and important video appearances, ever. Because he’s telling the media what is their business, and that they are failing.

PS I’ll tell you something else about my Dad: he never would have voted for Donald Trump.

 

Categories
Environment Government Legal, Laws, and Regs Photography Political

Silent Sunday June 30 2024

Tired old building, once tall and grand, now faded and worn. Junk piled up front. Street signs say "Public" and "Water". A sole American flag flying from a telephone pole.
What's left
Categories
Legal, Laws, and Regs

The PACER Class Action Lawsuit and Donating to RECAP

Screenshot of the PACER web site home page

The PACER system is the federal court document system. The PACER class action lawsuit is a lawsuit started several years ago, claiming the courts were overcharging folks for PACER. Since the courts were using PACER funds for in-court screens and computers, and not just paying for the PACER system, itself, the court found that the lawsuit claim was justified.

All these years later, the judge presiding over the case has accepted the 125 million dollar class action settlement between the litigants and the government. Barring an appeal, which most likely won’t happen, the class action has finally come to a legal conclusion.

So, what does all of this mean to PACER users?

It means if you’ve paid for court documents in PACER between the dates of April 21, 2010 and March 31, 2018, you should get a check. Not right away: it’s likely no one will see any funds for several months. With this kind of money, and this many claimants—and most folk involved are lawyers—things don’t happen overnight.

How much of a check will you get? Well, there’s an algorithm for that.

If you paid $350 or less during the target period, you’ll get a check to fully reimburse you for what you paid. The idea here is that most small dollar spenders are general public doing research for whatever reason. According to the opinion, one of the goals for the settlement is give relief for the little guy:

First, to give relief to small-scale PACER users – the non-lawyer members of the public and individual law practitioners who were most affected by having to pay unlawful fees; the full reimbursement
of all PACER fees paid up to $350 makes it more likely that small-scale users will be wholly compensated.

Once these funds have been distributed, than the rest will be refunded to those who paid more than $350.00 on a pro rata basis. This includes large legal firms, as well as individuals who made heavier use of PACER.

Being a legal hobbyist (yes, that’s a thing), I’m in this latter group. From the records I received from the folks at PACER, I have spent exactly $4081.72 during the class action target period. This means I should receive a check for $350.00, but I suspect when I’m lumped in with the big legal groups, I might get another dollar or so but not much more.

There was a legal objection to the settlement, specifically because of folks like myself who spent a goodly amount, but no where near the amount the big guys spent. Then there was a legal objection to much of the funds going to the small scale payers. In the end, the settlement did a bit of a give or take on both to find a sense of balance and fairness. I personally thought it was about the best they could do, and getting even that $350.00 back is more than I’ve ever gotten on any class action in the past.

The government has improved PACER access in small part because of this lawsuit and other concerns. Now, as long as you keep your legal sleuthing to less than $30.00 a quarter, you won’t get charged. It still does things ‘wrong’, such as charging you per page for a search request, but it has improved.

PACER improvements aside,  I no longer spend any money at PACER. I now use the RECAP Archive for all my court case monitoring.

The RECAP Archive is a component of CourtListener: a database of court documents you can access for free. It’s part of the Free Law Project:

Free Law Project seeks to provide free access to primary legal materials, develop legal research tools, and support academic research on legal corpora. We work diligently with volunteers to expand our efforts at building an open source, open access, legal research ecosystem. Currently Free Law Project sponsors the development of CourtListener, Juriscraper, and RECAP.

How RECAP works is people like me use a RECAP browser extension when we access PACER. When we access a court docket and/or court document, RECAP sends a copy of the docket/court document to the RECAP archive. So, after a RECAP participant has accessed the court document and it’s uploaded to RECAP, everyone else can now access that document for free.

Every quarter, I download court documents until I reach my nonpaying quota, knowing these documents will then be uploaded to RECAP. Many others are doing the same. Because of our combined effort, many of us never have to pay another PACER bill. I haven’t paid for PACER access for years, and I’m currently following 42 court cases on RECAP.

The PACER class action lawsuit is well and good and I’m glad to get the funds back. But the real lifesaver when it comes to PACER is the Free Law Project and the RECAP Archive; enough so that I’m donating whatever class action funds I receive to the Free Law Project. I’m hoping to get other folks to do the same.

Court documents aren’t just about issues of law—they’re about how we live our lives today, and they form a history for tomorrow. We shouldn’t have to depend on what a news program tells us what they want us to know about a court document—we should be able to access the court document directly and discover what it says for ourselves.

Court documents should be free, and the RECAP Archive is helping to make it so. If you get money back from this PACER lawsuit, consider donating all or part of it to the Free Law Project.