The schadenfreude is strong

After all, depriving millions of Americans of their health insurance in the middle of a pandemic is a remarkably stupid idea, even for this administration. Republicans deserve to suffer at the polls for this.

The solicitor general says a vote for the GOP tax cuts was a vote to eliminate protections for preexisting conditions.

The law still matters to some SCOTUS justices

“Trump keeps losing not because of something obscure, but because of something fundamental: his abuse of the executive branch. Much of his administration’s approach to governance rests on attempting executive actions that lack any meaningful justification rooted in expertise, or even rational thought. …

“Trump’s abuse of the executive branch is one of the most damaging aspects of his presidency, because it rejects a reasoned approach to making government policy. Trump has made clear—most notably during the impeachment process—that he disdains the civil servants who bring deep expertise and valuable experience to important policy questions. …

“Trump has made clear time and again that he doesn’t really care what the law says, especially about immigration. That’s why he urged shooting rock-throwing immigrants and retaliating against immigrant-friendly sanctuary cities by sending detained immigrants to such cities, and why he fired his own Homeland Security general counsel, who had pushed back on various questionable Trump initiatives. Trump doesn’t see law as a constraint, but something to be manipulated—and that’s clearly a message his Cabinet seems to have received. Consequently, they play fast and loose with the law. The Court, in this decision and last year’s, is essentially saying that the law still matters.

“Ultimately, that’s precisely what’s at stake as long as Trump is president. If all that matters is a president’s policy preferences, then law—including judicial review—is basically a facade: Dress it up enough, and it’ll pass muster. But if law matters—if building a record and considering facts and providing honest reasons matter—then Trump is sure to keep losing.”

The legal reasoning may look like it turns on obscure technicalities, but the administration?s cases are falling apart because of something much more deeply wrong.

Virtual depositions??

As a occasional litigator who (very) occasionally handles depositions, I don’t think I’d be at all comfortable with virtual depositions. And since they’re generally only used in civil cases, I don’t see the need. Civil cases can simply be put on hold for the duration of the crisis (that’s what Massachusetts is doing with a few exceptions).

Squire Patton Boggs partner Steven M. Auvil in March asked an Ohio federal judge to take a rather unusual step in a case he was working on, compel a remote deposition.

“To say Trump’s argument is frivolous demeans frivolity”

George Conway in the Washington Post concerning the release of Trump’s tax returns: “Trump’s position stupefies. In essence: Authorities can’t investigate anything touching his personal affairs — including, ahem, payments to pornographic actresses — because he’s president. Think of the logic: Not only does the president enjoy a personal constitutional immunity — his businesses do, too. …

“Likewise, the Constitution is concerned with protecting the presidency, not the person who happens to be the president. That’s because no one in this country is above the law. The Supreme Court is now called upon to teach that lesson once again — even if Trump will likely never learn it.”

The Constitution is concerned with protecting the presidency, not the person who happens to be the president.

Making the swamp even swampier

“The hiring plan documents show shortened hiring timelines and suggest preference given to judges with records of rulings against immigrants. The documents also demonstrate the influence held over the board by the political leadership of the Executive Office for Immigration Review, the Justice Department agency that oversees the nation’s immigration court system, particularly its director, James McHenry. …

“The current hiring process appears to chip away at the role career employees play in that process, and instead amplifies that of the EOIR director and other political appointees, according to Lynch and some other experts who reviewed the changes.”

New DOJ documents show shortened hiring timelines and suggest preference given to judges with records of rulings against immigrants.

The erosion of the rule of law

“Impartiality is anathema to Trumpism. That the Trump administration wants to upend a long-standing system for assuring both the reality and appearance of fairness in agency adjudication may be shocking. But it is not surprising. If you consider yourself on block watch for threats to democracy, take your eyes for a moment off the president’s Twitter feed and turn your attention to administrative law. Danger is lurking amid the complexity.”

The president?s administration is attempting to bring thousands of federal employees under his control, and the public is largely unaware.

Appeals court spanks BIA, Justice Dept.

A wonderful opinion. Here is Bloomberg’s piece and here is the opinion itself.

Some nice quotes: “What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the Attorney General issued after our opinion, that our decision is incorrect. …

“We have never before encountered defiance of a remand order,and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.

“The Board seemed to think that we had issued anadvisory opinion, and that faced with a conflict between our views and those of the Attorney General it should follow the latter. Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the ‘judicial Power’ under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government.”

Alas, it’s only getting worse

I can only speak about the Boston immigration court. They’ve hired several new judges but all of them were previously prosecutors for DHS and therefore have to recuse themselves from any case they handled in any way before coming to the bench (and that turns out to be alot since multiple prosecutors wind up working on any given case). In addition, several judges have been out sick multiple times, which results in cases getting rescheduled.

Allow me to cite just one example. I have a Haitian client whose removal case was closed when she was granted Temporary Protected Status (allowing her to stay) She subsequently married a US citizen and is eligible for a green card. I filed a motion to reopen the case in December 2017 and it was granted in the spring of 2018. That judge than retired and the case was assigned to another judge (previously a DHS prosecutor) and I had an individual hearing scheduled for September 2019. At that hearing, the government attorney was unable to move forward because he had not yet received the file from the archives! The judge asked the government attorney if the database showed that he (the judge) had previously worked on the case and the answer was no. The case was then continued until November 2019. At that hearing, the judge revealed that he had looked into it and found that he had indeed worked on the case as a prosecutor and therefore had to recuse himself (apparently he hadn’t looked into it before the previous hearing). The case was assigned to another judge. That judge has missed multiple days (two this week) resulting in the rescheduling of her current cases. I have heard nothing about when my client’s application for a green cared will be heard but I doubt it will be this year.

The administration’s solution to the problem is impose minimum quotas on how many cases I judge is supposed to decide per year. It that results in curtailing the aliens’ due process rights, so be it (a feature, not a bug). The solution proposed by the immigration bar is (aside from hiring more judges) to move the immigration courts out of the executive branch (they’re currently part of the Justice Department) and give them independence by attaching them to the federal courts (similar to the bankruptcy courts). I doubt that will ever happen though. Sigh.

LUMPKIN, Ga. (AP) ? In a locked, guarded courtroom in a compound surrounded by razor wire, Immigration Judge Jerome Rothschild waits -- and stalls. A Spanish interpreter is running late...