…and Now, A Quick Word About The Supreme Court
A few of you – ok, it’s actually quite a few – seem to have bought into the latest line of idiocy.
Which line is that, you ask? The one the “presteejus” legal firm of Trump, Giuliani & Ellis is spouting about “just wait until we try our case at the Supreme Court.” Folks, that’s about as asinine a claim as can be made.
The Supreme Court is not a trial court. It is the highest appellate court in the land. The 9 justices only accept cases where the circuit courts have differing opinions about a law, a law deserves scrutiny to see if it passes Constitutional muster, or if a law was severely abrogated in the circuit courts. It doesn’t hear or depose witnesses that are not already in the case file (it rarely hears witness testimony, ever). It does not search out new evidence.
This is why this bullcaca being spread by those folks is, well, bullcaca. The time to get that evidence in the record was in the original cases. Trump’s lawyers never even attempted to get any of their “evidence” into the record, aside from one case in Michigan. Not in any of the Pennsylvania cases. Not in the Nevada case. The Arizona case was dropped. The Georgia case was dropped. The Wisconsin case was pulled when they realized their evidence was based on faulty data.
In other words, while there’s always a chance the Supreme Court will agree to review one of these cases, it’s more likely it won’t. There’s nothing in any if them that appears to be an egregious, reversible error. It won’t be the Michigan case, which was never appealed. It won’t be the Nevada case, which was narrowly focused on voting laws used in one county and dismissed with prejudice.
The only ones that might gain their interest are two Pennsylvania cases. the first has to do with the Pennsylvania Supreme Court allowing mailed ballots received up to 3 days after the election, an apparent violation of the state’s statute regarding when ballots are due. That case would be regarding executive authority being wielded by the courts when none is granted. However, that would only affect about 25,000 ballots in a state Trump lost by 84,000 votes, so it wouldn’t be enough to swing the state’s electoral votes. It would be important in asserting the principle of legislative prerogative, but so far nobody has shown any interest in getting this before the federal bench.
The second is the one that has received national attention, the one dismissed for lack of evidence and bad faith claims by the circuit court judge and later upheld by the appellate court. That faces a mighty climb, but Rudy, et al. could argue that they should have been allowed an evidentiary hearing and to amend the redress asked to mailed ballots only. Even if against all odds the Supreme Court decided to hear those arguments and then rule in Team Trump’s favor, it wouldn’t swing those votes. It would only send the case back to the circuit court for the evidentiary hearing and a new ruling.
And now here’s the kicker: all of that would have to happen by December 8. If the Electoral College votes on December 14, you may ask, why do the Electoral Slates need to be decided by December 8? The reason for that harkens back to the election of 1876, when several states sent competing Electoral ballots to Congress, creating a huge mess. So Congress passed the Compromise of 1877, part of which ended Reconstruction in exchange for granting Hayes’ electoral votes recognition in Congress. The other, less famous part requires states to submit their electors no less than 6 days before the Electoral College meets, allowing Congress time to resolve any conflicts before the vote.
*Many people are confused about what Bush v Gore decided. The Supreme Court ruled the Florida recount over, allowing the state legislature to send the Bush electors to the Electoral College, although Congress preferred to send the Gore electors. It affirmed the states’ right to resolve electoral disputes before Congressional intervention.
So that’s what makes all this wailing and gnashing of teeth and rending of garments so unseemly. In one week, the electors will have been chosen. At this late date, you are not going to get the Supreme Court to order a new trial that might cause one slate of electors to be replaced by another when there is no evidence in the trial record – and no evidence in the record, period, as pointed out by two judges – that would support such a move. Team Trump is not stupid, they know this. They’re counting on the fact you don’t know this.
It is one last desperate plea to be seen as going down as fighters, when the reality is they never fought at all. They’ve made noise, they’ve blown apart legitimate concerns about election integrity on the altars of one zany conspiracy theory after another, they’ve filed dozens of lawsuits. But they never made any cogent arguments in any court that any particular state was the subject of a massive conspiracy to defraud the citizens.
In the end, the Supreme Court will see through the charade. It’s a shame that many of you haven’t.
Spare Ye Not the Children
No matter how many people claim to be well informed and skeptical of the MSM, this week’s outrage over illegal alien children being separated from illegal alien adult guardians proves the lie to their claims. To hear the MSM (and many of the well-intentioned, but easily led astray sheep) tell it, the Trump administration has engaged in the most despicable act against migrants in recorded history. They first tried this tack a few weeks ago, when a slew of “journalists” shared the above picture on social media. What they failed to mention at the time was that the picture is four years old and depicts the way the Obama administration treated the illegal alien children of illegal alien adults. Say what you want about Trump (he is certainly an immigration hard-liner), at least his administration hasn’t taken to putting children in dog kennels. Caught in their lie, within 48 hours the scurillous dogs were forced to recant. But they only regrouped and freshened their assault.
The other thing they won’t mention is that this has been the policy of every administration dating back to that Bill Clinton. There’s a very good reason for this, and no, it isn’t because anyone thinks the kids are carrying backpack bombs.
It’s because it is what the law requires.
The President and his media critics are both guilty of dissembling here. There is no individual law that requires children caught entering the country illegally be separated from their parents. Rather, it is the result of several individual laws and court precedents that require being detained separately.
The United States is no stranger to crime waves. What made the crime wave of the late 1960’s and 70’s different than prior crime waves was the ages of many of the suspects. The number of juveniles arrested for felonies skyrocketed, straining the resources available for detaining juveniles prior to adjudication of their cases or even bail hearings. At a loss, many jurisdictions began housing these juveniles in adult detention centers, usually (but not always) in a segregated unit. Most Americans were shocked and appalled at the thought and in 1974, Congress amended 18 USC 5035 to require that juveniles not be held with adult prisoners:
The Attorney General shall not cause any juvenile alleged to be delinquent to be detained or confined in any institution in which the juvenile has regular contact with adult persons convicted of a crime or awaiting trial on criminal charges. Insofar as possible, alleged delinquents shall be kept separate from adjudicated delinquents.
So here we have the first stage of the current problem: we’ve had a law on the books for 44 years now that strictly precludes housing children accused of an illegal act with adults accused and/or convicted of an illegal act.
But is entering the country without advance permission from the federal government a crime? I mean, we’ve all heard the mantra “People are not illegal!” Well, actually – yes. 8 USC 1101 defines who is, and is not, permitted to gain entry into the United States. 8 USC 1325 makes it quite clear what the penalties are for entering the country without permission:
Any alien who enters or attempts to enter the United States … shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.
Despite all the liberal caterwauling about gaining illegal entry to the country being a civil offense, this statute is black-letter law defining that act as a criminal offense. Yes, a subsequent section of the statute does allow for the imposition of civil penalties (specifically, a fine of $50 to $250). But the act of entering the United States by persons not permitted entry is an illegal act (hence the term, “illegal alien”) and we have the second piece of the puzzle.
As noted above, juveniles held on suspicion of an illegal act (such as entering the country with out prior authorization) cannot be held in the same facility as adults held on suspicion of illegal acts (such as entering the country without prior authorization). By statute, both the accompanying adult and the child are guilty of the same offense. By statute, the children cannot be held in the same facility as the accompanying adult. By statute, they must be separated.
“But wait!” your liberal friends cry. Can’t we just release the parents and kids on their own recognizance? Or send them back across the border to await an immigration hearing? This is where things get a bit murkier. For starters, Congress decreed in 8 USC 1225 different classes of illegal aliens. The liberal media loves to focus on those whose country of origin is in the Western Hemisphere, but does not share a border with the United States, and is applying for asylum. Conservative media focuses on those from Mexico. Nobody talks about the fact that over half of illegal aliens are from the other half of the planet. Yet, under this statute each is a distinct class of alien – and each has separate procedures for immigration hearings. And this is only a few of the more than a dozen distinct alien classes established in law.
As for those procedures, they are established under 8 USC 1229a. In some cases, a hearing before an immigration judge is required. In others, an asylum officer. In some cases, an ICE or Border Patrol agent can unilaterally decide to deport a detainee.
So, we’ve established summarily deporting illegal aliens is not permissible under US law and that the vast majority of illegal aliens are due some form of immigration hearing. We’ve also determined that the law requires detaining them for said hearing. But why can’t we detain them, issue them bail and send them on their way, hoping they’ll appear for their hearing? A little more history is in order here.
18 USC 3142 is the federal statute regarding bail and pretrial detention. Paragraph (b) defines the classes of person who should be held without bail:
(1) such person—
(A) is, and was at the time the offense was committed, on—
(i) release pending trial for a felony under Federal, State, or local law;
(ii) release pending imposition or execution of sentence, appeal of sentence or conviction, or completion of sentence, for any offense under Federal, State, or local law; or
(iii) probation or parole for any offense under Federal, State, or local law; or
(B) is not a citizen of the United States or lawfully admitted for permanent residence, as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)); or
(2) such person may flee or pose a danger to any other person or the community;
This particular piece of law has been fraught with controversy over the years. It’s application to immigration law is no different. In 1994, Lithuanian immigrant Kestutis Zadvydas (who had been granted residency) was ordered deported for a felony conviction. However, the three other countries where he might have been sent refused to take him (after all, dude was a bad apple) and he wound up languishing in prison with no hope of being released. In 2001, the Supreme Court ruled that the section of 8 USC 1231 which provided for indefinite detention of legal aliens awaiting deportation was in violation of the Constitutions 5th and 8th Amendments.
It was a controversial decision at the time. It is the basis for what has been termed our “catch and release” policy of granting illegal aliens a bail hearing and never seeing them again. Indeed, within the first three years after the ruling, USCIS was forced to release 134,000 aliens convicted of other crimes. It’s estimated another 56,000 have found a sort of limbo asylum in the US since then, as the Bush administration USCIS determined that even though Zadvydas did not specifically apply to illegal aliens it was better to broadly interpret the ruling.
But that administration did not entirely give up the idea of deporting illegal aliens who, despite not being in the country legally, commenced with committing other crimes. In 2004 USCIS ordered the indefinite detention of Alex Rodriguez, a Mexican national convict. It was this application of law that led the Obama administration in 2013 to implement the policies that led to the above picture. It that application of law that the Trump administration has been dutifully following since assuming office.
The case of Jennings, et al v. Rodriguez, et al was first heard (and defended by the Obama administration) in 2016. The justices deadlocked. It was then re-heard in 2017, this time with the Trump administration defending. In February of this year, the Supreme Court ruled that illegal aliens do not have the right to bail and may, in fact, be detained indefinitely.
Which brings us back to where we started. Anyone entering the country is breaking the law. Our laws demand that children crossing the border be removed from their parents and held separately, and further can make that separation permanent.
We can debate until our faces are blue on the morality and necessity of such laws. Given our history with immigration, we probably will. And given the media’s fascination with conveniently forgetting how 35 years of immigration law and jurisprudence have shaped this situation, I’m pretty certain that the Trump administration will continue to be unfairly browbeaten about it. At least until next week, when another scandal will be created and sensationalized.