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Monday round-up

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Briefly:

  • In the latest episode of SCOTUStalk (podcast), Tom Goldstein joins Amy Howe to discuss June Medical Services v. Gee, in which a divided court temporarily blocked a Louisiana law that would require abortion providers to have admitting privileges at nearby hospitals.
  • At Law.com, Marcia Coyle reports on a new study of oral arguments showing that “Supreme Court justices direct their humorous quips and barbs most often at advocates with whom they disagree, lawyers who are losing their arguments and attorneys who do not have experience at the high court.”
  • At Jost on Justice, Kenneth Jost looks at the record in Department of Commerce v. New York, a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census, arguing that “[w]ith all these legal defects, Ross’s decision ought not stand after serious judicial review at the Supreme Court.”
  • At Jurist, William Clark and Bobby Segal urge the court to review Acklin v. Alabama, a capital case in which a defendant’s “attorney put his own interest in being paid — and the wishes of his client’s abusive father — ahead of his client’s life.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

The post Monday round-up appeared first on SCOTUSblog.

How ICE outmaneuvered a town that tried to close a detention facility

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A Immigration and Customs Enforcement detention center holding nearly 400 people in Bakersfield, California, that was slated to close will stay open after the U.S. reached a temporary agreement with GEO Group, a private contractor that owns and operates the facility.

The Mesa Verde facility, which is ICE’s only jail in central California, was slated to shut down March 18, which would have forced ICE to move detainees hundreds of miles to detention facilities around the state or even further.

“Without continued use of the facility, ICE would be required to relocate almost 400 detainees to facilities farther away from their families and attorneys,” ICE said in a statement.

But ICE found a controversial workaround. Citing an “unusual and compelling urgency,” the agency entered into a temporary contract directly with GEO Group, effectively cutting out city government without ICE having to leave.

The exception is intended for use in circumstances like natural disasters or acts of terrorism. In its proposal, ICE argued that it had an “immediate requirement” to continue operating Mesa Verde.

“The fact that this private company circumvented federal regulations, claiming that they’re facing ‘unusual and compelling urgency,’ is outrageous,” said Ambar Tovar, directing attorney for United Farm Workers Removal Defense Project, which works inside Mesa Verde..

ICE has been struggling to keep its facilities open across California after lawmakers passed a pair of “sanctuary” laws in 2017 that prevent cities and counties from entering into new contracts or from expanding existing agreements with ICE. The laws also gave the California Attorney General’s office, now run by Attorney General Xavier Becerra, increased oversight over the centers.

A report released just last week, the first under the Attorney General’s new mandate, found poor conditions, notably inadequate access to medical care and legal representation, including at Mesa Verde.

In part because of the new regulations, the city of McFarland outside Bakersfield ended its contract to operate Mesa Verde in December. The city had been receiving about $35,000 a year for operating as a go-between in ICE’s agreement with GEO Group.

McFarland was the third locality to pull out since the legislation took effect; Sacramento and Contra Costa counties ended their contracts to house detainees in the county jails last year. In those cases, the jails stopped detaining immigrants.

The backlash to ICE in communities comes as immigrant detention hits an all time high—50,049 people were detained as of March 6.

Officials have not commented publicly on the city’s decision to end the contract. But a letter from the city notifying the GEO Group of the contract’s termination suggests that it was not over moral concerns, but rather because the state’s more aggressive stance against ICE made continuing to work with the agency less appealing.

“This has been a satisfactory arrangement for the City,” city manager John Wooner wrote, “until recent adoption by the State of California of legislation impacting facilities such as Mesa Verde.”

As more cities elect to close their immigration facilities, ICE’s tactic shows a new way for the agency to effectively nullify the decisions of local governments. Mesa Verde will stay open for another year, without ICE having to go through the standard time-consuming public bidding process normally required for government contracts.

Even if immigration advocates oppose ICE’s methods, they’re more ambivalent about the outcome. “We definitely don’t think that it is humane to continue to detain people simply because they are fleeing persecution,” Tovar, the immigration attorney, said. “On the other hand, it is also a relief that clients we do represent are not going to be transferred to another location.”

Liz Martinez, director of advocacy for Freedom for Immigrants, which helped draft the 2018 laws, sees the steps ICE took to keep Mesa Verde open as a way for the agency “to circumvent the intention of the law.” Martinez says the group will take it into account when proposing legislation in other states.

“Anything that involves ICE has to be enforceable,” she said. “They’re not going to police themselves and they’re not going to be beholden to anything unless it is written in law.”

Cover image: An immigration detainee stands near an US Immigration and Customs Enforcement (ICE) grievance box in the high security unit at the Theo Lacy Facility, a county jail which also houses immigration detainees arrested by the US Immigration and Customs Enforcement (ICE), March 14, 2017 in Orange, California. / AFP PHOTO / Robyn Beck (Photo credit should read ROBYN BECK/AFP/Getty Images)

Senators Urge IRS to Focus on Big-Time Tax Cheats, Citing ProPublica Stories

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by Paul Kiel and Jesse Eisinger

In a letter on Friday , a group of prominent senators — including Minority Whip Dick Durbin, D-Ill., 2020 presidential candidates Elizabeth Warren, D-Mass., and Bernie Sanders, I-Vt., as well as Sheldon Whitehouse, D-R.I., and Richard Blumenthal, D-Conn. — urged IRS Commissioner Charles Rettig to increase the agency’s focus on large tax and financial crimes.

As ProPublica has documented with a series of articles, the IRS is a shadow of its former self, the result of a near-decadelong campaign by Republicans in Congress to starve the agency of funds. The agency’s enforcement staff has dropped by more than a third. That has been a boon to the rich and to tax cheats in particular, who have benefited from a collapse in audits, collections and criminal tax prosecutions.

As we reported, and as the senators noted in their letter, the story has been different for the poor, as the IRS has devoted a disproportionate number of its audits to taxpayers who receive the earned income tax credit, one of the government’s largest antipoverty programs.

The senators acknowledged that the budget cuts have badly weakened the agency, but they argued that ProPublica’s stories, together with government watchdog reports, show the IRS could use its limited resources more effectively.

The widening circle of investigations surrounding President Donald Trump has highlighted the weakness of tax enforcement, as we explained last October. Paul Manafort hid income overseas for years, and Michael Cohen dodged taxes through the simplest means imaginable (by lying to his accountant and the IRS) without consequence. It was only after the Robert Mueller’s team and other federal prosecutors began scrutinizing Trump’s circle that their crimes were discovered. The senators say that such examples of “exposure of criminal activity only resulting from investigations pursued for other matters” prove that the IRS can do more. “We urge you to strengthen enforcement efforts at the IRS, including focusing on tax code violations and financial crimes that may be linked to money laundering,” they wrote.

The IRS will not get a budget increase anytime soon. After a 34-day government shutdown, Congress and Trump struck a deal to fund the government for the next seven months. For the IRS, the deal included a cut from last year’s budget. In real terms, the enforcement portion of the agency’s budget is down by 23 percent since 2010.

Will things change next year? That’s in part up to Rettig. Last year, Republican congressional staffers told us that lawmakers might respond favorably if Rettig asked for more funds. So far, Rettig has not made any clear statements about whether he believes the IRS needs more money to do its job.

This Arkansas newspaper is fighting the state's anti-BDS law

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After the House passed its fraught anti-bigotry resolution on Thursday, Democrats on Capitol Hill sounded ready to move on from the controversy sparked by their outspoken colleague, Rep. Ilhan Omar (D-Minn.). But one way the controversy over Israel will keep going is through “anti-BDS” laws, largely pushed by Republicans.

Arkansas is one of 26 states that have passed anti-BDS laws, with help from the American Israel Public Affairs Committee. All fairly identical, these laws require state contractors to sign a pledge vowing not to support the Boycott, Divestment and Sanction movement, a consumer boycott of Israeli-made products, designed to punish the country for its treatment of Palestinians. (Israel calls the campaign anti-Semitic.) The backer of the 2017 Arkansas law was Republican state senator Bart Hester, who says he was moved by his evangelical faith and the religious affinity between Christians and Jews.

But newspaperman Alan Leveritt is one of the contractors resisting the pledge. The owner and publisher of Little Rock’s alternative paper, Arkansas Times, not only refused to sign it, but he’s actually suing the state.

The paper doesn’t take a stance on the boycott, and Leveritt doesn’t support it himself. But he doesn’t think the state has the right to tell his paper — or any other business —whether it can participate in a political movement. Plus, his biggest advertiser is a state college, which said it could no longer advertise unless the Times took the pledge.

“They do not have a right to punish me for exercising my constitutional right,” Leveritt told VICE News. “To be silent in this instance. It’s just to be silent… we don’t take a position on this. Our job is to write about Arkansas. We’re a lot more interested in Medicaid expansion here in Arkansas than we are what’s going on in Jerusalem.”

Leveritt is represented by the ACLU, which has successfully fought anti-BDS laws in other states, citing the First Amendment. But a federal judge in Arkansas ruled that boycotts aren’t protected speech and threw the case out. That left Leveritt with a choice: give in, or keep fighting and risk his paper’s bottom line. For now, he’s fighting, appealing the case to the 8th Circuit Court of Appeals. But he’s not sure how much longer he can afford the fight.

“I’ve got responsibilities to these people here at this organization,” he says. “I’m not looking to be a martyr. But I am willing to appeal and go through this process and let this go on for the next year. And I’ll do the best I can.”

This segment originally aired March 7, 2019, on VICE News Tonight on HBO.

You would be much happier on permanent daylight saving time

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Daylight saving time happens at 2 a.m. on March 10th this year. It’s that yearly ritual where we spring forward and lose an hour of sleep so we can gain an hour of daylight in the evenings. Researchers say that extra hour of sunshine saves lives on the roadways, reduces crime, increases leisure activity and may save a little electricity.

There are two bills in the Washington State legislature that would make daylight saving time year-round. In California, voters passed a measure in November that would allow the legislature to make DST year-round there. A similar effort is also underway in Oregon.

The revolt against falling back and springing forward is not limited to the West — a bill that would keep Florida on daylight saving time passed the state legislature and is awaiting congressional approval, and farmers in Massachusetts two years ago pushed that state to explore moving to the Atlantic time zone.

Anxiety about daylight saving time is new. Implemented first during World War One as a means of saving energy, and then revived during World War Two, daylight saving time wasn’t widely adopted until the late 1960s. Since then only Arizona and Hawaii have opted out of the change.

But western states are now poised to make the biggest impact in this debate. California, Oregon, and Washington make up a large and symbolic clump of the U.S., and although none of the states have made it all the way through the congressional process to make daylight saving year round, there is new consensus that they should.

This segment originally aired March 8, 2019, on VICE News Tonight on HBO.

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