Tuesday, November 20, 2018

[U @ Midday] Unsurprisingly, Judge Tigar Holds That Congress Meant What It Said -- In 8 U.S.C. § 1158(a)(1). TRO Granted.

Noon UPDATE: I certainly wish some of the WH stenographers (like Washington Times and Fox -- cough!) could get it through their thick skulls that 8 U.S.C. § 1158(a)(1) means "WHEREVER" a would be asylee enters (at a port, or not). . . means the entry IS LAWFUL. Asylum seekers who swim / raft / walk across the Rio Grande -- even in the middle of nowhere, are LEGALLY allowed to claim asylum. They DID NOT enter "illegally." That is the plain text of 8 U.S.C. § 1158(a)(1). So, all these nut-job "Illegals" headlines. . . are simply fake news. End, updated portion.

Next full hearing in two weeks. The entire well written thirty seven pager is here, as a PDF.

Onward -- as I am off to court, myself, I will only add a bit for now. But this is a win. From the overnight opinion:

. . . .The Immigration and Naturalization Act (“INA”) “deals with one of the oldest and most important themes in our Nation’s history: welcoming homeless refugees to our shores,” and it “give[s] statutory meaning to our national commitment to human rights and humanitarian concerns.” 125 Cong. Rec. 23231-32 (Sept. 6, 1979). As part of that commitment, Congress has clearly commanded in the INA that any alien who arrives in the United States, irrespective of that alien’s status, may apply for asylum – “whether or not at a designated port of arrival.” 8 U.S.C. § 1158(a)(1).

Notwithstanding this clear command, the President has issued a proclamation, and the Attorney General and the Department of Homeland Security have promulgated a rule, that allow asylum to be granted only to those who cross at a designated port of entry and deny asylum to those who enter at any other location along the southern border of the United States. Plaintiff legal and social service organizations, Plaintiffs East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central American Resource Center of Los Angeles (collectively, the “Immigration Organizations”), now ask the Court to stop the rule from going into effect. ECF No. 8. The Court will grant the motion. . . .

Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden. . . .

Onward. Trump is one viciously ill-informed idiot.


Saturday, November 17, 2018

East Bay Sanctuary Covenant's Fine Brief, On Asylum, Is Available Now.

It makes a very solid, muscular argument that (once again!) 45's team is unable, as a matter of law, to attempt to ban asylum seekers, or demand that they present only at designated ports of entry. [Just one of my prior notes on this issue, here.]

Only an Act of the full Congress (including the now-Democrat controlled House!) may make such a change (i.e., not happening). And so, this is all so much. . . impotent kabuki theatre, by the Tangerine Mussolini. Condor predicts it will -- as soon as Monday night -- be enjoined. From the fine 22 page PDF file brief then:

. . . .[Team Trump] concede[s]. . . that it is only the regulation, and not the Proclamation, that bars asylum. But the Attorney General has no authority to ignore Congress’s clear statutory language permitting asylum “whether or not” one enters at a port. 8 U.S.C. § 1158(a)(1). . . .

[The Immigration and Nationality Act, as amended] specifically forbids the government from imposing the rule at issue in this case. As the Ninth Circuit has repeatedly explained, an agency’s authority to make categorical discretionary decisions cannot justify violating the terms set by Congress in the statute. Toor v. Lynch, 789 F.3d 1055, 1064 (9th Cir. 2015) (“Lopez applies only when Congress has not spoken to the precise issue . . . .”) (quoting Rodriguez v. Smith, 541 F.3d 1180, 1188 (9th Cir.2008)). Thus, “[t]he agency cannot get in through the back door of the relief stage what it cannot do at the eligibility stage.” Succar v. Ashcroft, 394 F.3d 8, 29 n.28 (1st Cir. 2005) (“because eligibility is explicit in this statute, the Attorney General cannot categorically refuse to exercise discretion favorably for classes deemed eligible by the statute”).

The government further contends that the Attorney General has broad authority to establish new bars to asylum, brushing aside that Congress authorized the Attorney General to adopt only limitations “consistent with this section.” 8 U.S.C. § 1158(b)(2)(C). The Attorney General cannot establish a rule inconsistent with the clear command of § 1158(a)(1). Indeed, the Ninth Circuit previously rejected a similar attempt to eliminate an immigration provision by regulation. See Bona v. Gonzales, 425 F.3d 663, 668 (9th Cir. 2005) (“because the ‘regulation redefines certain aliens as ineligible to apply for adjustment of status. . . whom a statute, 8 U.S.C. § 1255(a), defines as eligible to apply[,]’ the regulation is invalid”) (quoting Succar, 394 F.3d at 9). . . .

For a complete record only -- but not as any example of what the law in this area really is -- here is the Trump brief.

Onward, to a videoed argument on Monday. Smile -- that ought to be very. . . droll. . . .


Friday, November 16, 2018

"He knows the price of everything... and the value... of nothing." Flawless.

This is a Friday night coda, of sorts, to my earlier ones -- on Banksy. One reviewer said -- of this new HBO documentary -- that it is like "an onion, in that the more you peel away its layers. . . the more you want to. . . cry."

As I sat just now on the couch, with tears rolling down my cheeks, I so hoped the doc (just finished in 2018) would close with Banksy's perfect commentary / performance art. Alas, it does not. But you may imagine it -- as a flawless epilogue.

From just one review:

. . . .[W]e meet Richter [the artist] himself, a super-cool dude who doesn’t want his work to end up in penthouses. . . . He wants them in museums. [Another, a dealer] taking this on board, says museums hoard half their treasures in basements, which she compares to “cemeteries”. She and Richter, both articulate, treat what happens to paintings as a matter of life and death.

It makes your heart race.

[We also, perhaps most poignantly, meet] Jewish collector Stefan Edlis, who discusses, among other things, his affection for a Maurizio Cattelan sculpture called Him. Edlis has the patient air of a “schmuck” (his word) who always gets the last laugh. It’s a pleasure to make his acquaintance. . . .

Do take the time to watch it on demand, or in its "live" airing -- on this Saturday night. I would only ask that you keep Banksy's satire of it all, firmly in mind, throughout. Onward.


Unsurprisingly, Amendment One Exists... INSIDE The Trumpians' White House.

A very capable US District Court Judge (named Timothy J. Kelly, in DC) just granted a TRO -- one that restores Mr. Acosta's White House hard pass, as a credentialed reporter.

The level of deceit 45's minions -- and 45 himself -- undertook, to suspend it. . . is, well, staggering. And in the end, the courts are the protectors of our democracy:

. . . ."I will grant the application for the temporary restraining order I order the government reinstate the pass," U.S. District Judge Timothy J. Kelly ruled from Washington. . . .

Now you know. Onward.


A Solid Debriefing, On Pharma's Ongoing Exposures To [Another] Cyber-Attack...

The generally excellent online magazine, Pharmaceutical Executive, is today running a post-mortem piece on the Not-Petya cyberattack / ransomware that struck Merck in June of 2017 (that bit is our backgrounder).

It is worthy reading -- in total, so do go read -- but here is a bit, while we await the reply of the plaintiffs, in the asylum TRO proceedings, in San Fran:

. . . .In the end, the most important thing for pharmaceutical companies, regardless of their size, to understand is that getting hit with this type of cyber attack is no longer a question of "if," but "when?" You can invest in all of the cybersecurity measures that you want -- it still won't prevent you from one day becoming the target of hackers with malicious intentions.

But if you know what someone is after, the good news is that you're now in a much better chance to mount the specific defense needed to protect it. That insight will act as your first line of defense against these types of cyber criminals in the future. . . .

Onward -- but I must note -- in Kenilworth's specific June 2017 case, it seems Merck was just collateral damage. The ultimate goal was not to steal pharma data, or disrupt the life science operations, specifically. It was to make a nefarious political statement in the Ukraine -- a likely Putin driven power move.

So there is some irony in that notion (not mentioned by the magazine, because it won't sell as much IT security consulting gig-work, in pharma proper). And now we look forward to seeing the next shoe fall, in reining in Trump's rampant lawlessness on vulnerable asylum seekers, tonight. . . and my grown kids start arriving early next week. Woot!


Thursday, November 15, 2018

Only About 5,900 Doses Of Ebola Vaccine Are Still On Hand, And In Stock In DRC...

With almost 29,000 people vaccinated there -- we are beginning to see the limits of the "investigational" vaccine production runs, at Merck. It is my experienced conjecture (of over two decades) -- but conjecture, just the same -- that FDA approval will come very quickly, and full-on commercial volume runs will begin immediately. . . if the available stockpile dips below 1,500 doses.

The latest Situation Report, on the bottom of page 7, from WHO:

. . . .As of 10 November 2018, 424 new contacts were vaccinated in 13 rings in affected health zones, bringing the cumulative number of people vaccinated to 28,727. Two new vaccination teams were trained in Butembo, with support from Médecins Sans Frontières, and vaccination teams were supervised in Beni, Vuhovi, Mutwanga, Kalunguta and Kyondo. The current stock of vaccine in Beni is 5,870 doses. . . .

Now you know -- onward.


Wednesday, November 14, 2018

Merck's Rolling "Breakthrough" FDA Submission -- Its Ebola Vaccine -- Is Now Underway (Approval In Early 2019 Likely).

First, lots of the multi-year backstory here -- or just search "Ebola vaccine" in the upper left box.

We have followed this since early 2014, very closely. And now (overnight) we learn that Kenilworth has submitted an approval packet to US FDA staffers.

This all ought to go very quickly -- for all the reasons we mentioned -- and that is decidedly good news. However (less sanguinely), it now looks like the current Ebola outbreak in DRC (the most lethal in that country's history -- back to 1976) will last a minimum of another six months, due primarily to lost contact tracings. That, in turn, offers a real potential for the need to vaccinate NOT just "rings of contacts" -- but an entire urban population, in an 800,000-plus population city like Beni.

So. . . Merck may need to scale up -- and scale up rapidly (likely in Durham, NC), after the nearly certain FDA approval arrives. Now you know. Onward.


Tuesday, November 13, 2018

[U: Video On Monday!] The Government Must Answer The TRO Motion, In East Bay Sanctuary v. Trump In Under Two Days...

. . .and then the plaintiffs, including the ACLU, East Bay Sanctuary Covenant and Innovation Law Lab, will have an opportunity to reply by this Friday. Expect then that one Donald "Dotard" Trump will be eviscerated, in prose, and in perpetuity -- in the able court's written recorded orders (yet again!), no less.

UPDATE @ 2 PM CST -- 11.14.18: I forgot to mention that this is one of only a handful of trial level federal courts participating (on an experimental basis) with video feeds of the proceedings. And so, I will stream it all, right here -- come Monday. Prepare to see a particularly bad version of "Apprentice Lawyers for 45" -- and do pop the popcorn. His team will be pinned, right out of the gate. [End updated portion.]

The full-on TRO argument will be heard on Monday -- on the "rocket docket". Excellent. Bring it on -- this was just entered a few hours ago, in San Francisco's federal District courthouse:

. . . .SCHEDULING ORDER re [8] MOTION for Temporary Restraining Order filed by East Bay Sanctuary Covenant, Innovation Law Lab, Central American Resource Center, Al Otro Lado. Responses due by 11/15/2018.

Replies due by 11/16/2018. Motion Hearing set for 11/19/2018 at 9:30 AM in San Francisco, Courtroom 9, 19th Floor before Judge Jon S. Tigar.

Signed by Judge Jon S. Tigar on November 13, 2018. . . .

Now you know -- wow. . . this is light-speed law practice. And. . . I (for one) love it.


Parker Is Performing Flawlessly; Withstanding 2,500 Degrees Fahrenheit At Perihelion...

It was within 15 million miles of the sun on that pass -- and all went perfectly (23 more passes to go!):

Now you know. Onward, and thank you, Professor Parker.


Monday, November 12, 2018

We Were Just First Generation Irish (And Hungarian) Immigrants, Then: Armistice Day, 100 Years On...

It has been one full century now, this morning -- when at the stroke of noon, the shelling and shooting ceased.

It was the end of the "war, to end all wars. . ." [Though it didn't (even remotely) turn out that way.] But WW I was now. . . over, and my grandfather, at right -- just a first generation immigrant then, with only an eighth grade formal education -- was to board a ship, and return home from France. Home, to the Rockies -- of the West.

Mother Ireland, in County Cork, was no longer home. These United States were. . . home. Yes we were. . . immigrants. That is our legacy. This Veterans Day, I whole-heartedly thank all who served our nation, and have passed on.

Each and every one of the enlisted deserve our honor, our gratitude and our enduring respect. And we must remember that most of those who died, for America, in each of the "great wars", was first or second generation -- at best.

So, it is also incumbent on each of us as voters -- as stewards, if you will -- of these lives, to think clearly before we commit our troops -- sons and daughters, brothers, sisters and cousins -- to a cause that is in truth no more than a political stunt -- our troops are sleeping 20 to a tent, in Southern California, Arizona and Texas, of all places (getting no combat pay, despite being "deployed" -- away, from the comfort of a base) -- with no air conditioning, little running water -- and being asked to "guard" a border no one is seriously threatening. Some two months from now, "huddled masses, yearning to breathe free air. . ." will arrive there -- and seek entirely lawful asylum. That is all.

And so, today, we should all keep in mind what a then 20 year-old soldier had scribbled in pencil, and left in his mess kit, shortly before his own death -- in the trenches of World War I France -- three years before the Armistice ended that killing:

When you see millions of the mouth-less dead
Across your dreams in pale battalions go,
Say not soft things as other men have said,
That you’ll remember. For you need not do so.
Give them not praise. For, deaf, how should they know
It is not curses heaped on each gashed head?
Nor tears. Their blind eyes see not your tears flow.
Nor honour. It is easy to be dead.
Say only this, ‘They are dead.’ Then add thereto,
‘Yet many a better one has died before.’
Then, scanning all the o’ercrowded mass, should you
Perceive one face that you loved heretofore,
It is a spook. None wears the face you knew.
Great death has made all his for evermore.

-- Charles Hamilton Sorley (1915)

For his part, my grandfather returned strong, hale and whole, from the "great war" -- to live on. . . to see another seven decades of peace and prosperity -- to work in the mines, marry the love of his life, run a mountain Post Office, see his fine children grow into late middle age, and adore all of his many, many grandchildren (and by the time of his own peaceful passing, to have held and adored with crinkled Irish eyes, at least a handful of his now many, many great-grandchildren). Not so, this other Charles (as quoted above). And so -- I do give honor, respect and gratitude to those who fell, in the causes of our nation. I just ask that we all be very careful about which causes we choose, henceforth.

Do go to truly love one another. I do so, with a call for all of us (in the EU and the US) to be more open: to open our borders, to peoples fleeing oppression. . . . That is freedom's. . . beacon for all. Pax tecum. . . .


Sunday, November 11, 2018

[U] ACLU's Federal Court Hearing Set For Tuesday, In San Francisco (On Assignment), On Trump's Unlawful Southern Border Asylum Ban Attempts

As we indicated (on Friday) the ACLU would, the suit has now been filed in Northern California's federal District court -- for among other things, a nationwide halt to the implementation of any purported asylum ban, at the southern border. [A motion for a TRO has also been filed, under seal, at this point (and an earlier version of the post and graphic, relying on the PACER feed, had Magistrate Judge Ryu out of Oakland, assigned preliminarily). RESIST!]

This East Bay Sanctuary suit will likely soon prevent the application of Trump's latest lunacy -- in violation of international law applicable to the US (since at least 1967), and 8 U.S.C. § 1158(a)(1) -- as to vulnerable refugees, now slowly walking toward the Rio Grande River. It will be at least six weeks before they arrive, and even so, we as a nation should be clear about our treaty and statutory obligations, to each of them. They are entirely free to cross at any point, and promptly claim for asylum anywhere inside the interior of the United States. [Perhaps we ought to organize an "underground railway" of sorts (21st Century edition), to get them to Chicago or San Francisco -- two cities more likely to help them make their asylum claims, rather than jail them.] More on that last notion -- in a future post.

We will note in passing, contrary to 45's boldly false assertions -- in adopting this latest measure, the vast majority of asylum seekers who are apprehended upon their arrival and then released into the United States' interior after passing their credible fear interviews do in fact show up for their immigration court hearings. According to data from our own US Department of Justice (even while under the thumb of Trump, in the full year 2017), 89% of asylum seekers appeared for their hearings. It is simply false to suggest that most of the asylees have been gaming our systems, as Trump incessantly bloviates. From the complaint then:

. . . .As part of our nation’s commitment to the protection of people fleeing persecution, federal law specifically guarantees that “[a]ny alien who is physically present in the United States or who arrives in the United States,” at a designated port of entry or not, is entitled to apply for asylum. 8 U.S.C. § 1158(a)(1). Consistent with its international obligations [primarily the 1951 UN Convention], Congress was specific and clear: Entering without inspection is not a basis to categorically deny asylum to refugees. . . .

[As of November 9, 2018, Trump seeks to] bar people from obtaining asylum if they enter the United States somewhere along the southern border other than a designated port of arrival -- in direct violation of Congress’s clear command that manner of entry cannot constitute a categorical asylum bar. In addition, the Acting Attorney General and Secretary of Homeland Security promulgated the rule without the required procedural steps and without good cause for immediately putting the rule into effect. . . .

Now you know. I do wonder whether there are enough people of good will (via the Catholic charities chaired by Father Phleger in Chicago for example), willing to help -- willing to welcome them for even one night, into thier homes, and then transport and move migrants north and east, from the banks of the Rio Grande, toward San Antonio, then Nashville, then Chicago (or San Francisco even), and on to Philly, New York and/or Boston. What are. . . the odds? Let me know. . . .


Friday, November 9, 2018

[Updated] About The Continued Lawfulness Of "Seeking Asylum" -- Despite Big Cheeto's Unlawful Proclamation.

UPDATED @ 11.11.2018: Much more of the applicable law -- and principles of analysis, for applying it -- may now be found here. That's our discussion of the latest TRO action, on it all, in Oakland San Francisco. [End, updated portion.]

Okay -- let's quickly unpack this. Normally, I'd wait for the ACLU to file suit for a TRO (and we do expect that, shortly -- maybe even by this afternoon, in California's federal courts), before reporting on it -- but this one requires prompt, if not completely polished, analysis. [I'll clean it up, later today.]

The US president (acting alone) simply hasn't the power, under the framework of international law (all as codfied into US law, by Congressional action), to do what he claims to do this morning, by simple proclamation (and interim rules at DoJ and DHS). He just. doesn't. The very bare minimum -- to change the practice here -- is an explicit Act of Congress, since this is a treaty-level obligation.

The 1951 UN Convention specifically requires individualized "credible fear" hearings (at Article 25; see also Article 1 definition of "Refugee"). Any scheme that declares an asylum seeker from a "geography" ineligible. . . violates that Convention, and the provisions of US law which codify it. Only an Act of Congress (after signing by the President) may change that -- something the Congress hasn't formally done.

Since the entire migrant "caravan" is now "outside the country of nationality" of each migrant, it is no longer unlawful, under US law, for each and every migrant to present ANYWHERE inside the US, and demand an asylum hearing. It simply cannot be unlawful. The Supreme Court has never held that arriving at a US checkpoint is required. And the Convention allows the migrant to appear in Chicago, New York or LA offices of ICE or DHS and make the asylum claim entirely LAWFULLY (Articles 31 and 33).

We are duty bound then to hold a credible fear interview and hearing. We cannot deport or detain, absent a showing of criminality, while we make this determination -- the migrant is to be released into the interior (under Article 31). This is the definition of Refugee which the US adopted in 1967:

. . . .[A "Refugee" is any person with a] well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. . . .

Don't let this sham-administration tell you otherwise. Go now, to protect your fellow humans -- documented or not so.


Thursday, November 8, 2018

WINNER! DACA II TRO / Preliminary Injunction Upheld In The Ninth Circuit. On, To The Supremes...

Here is last week's installment on this topic, for ready reference. And an earlier one, on the merits. [There are dozens; search "DACA", in upper left.]

So, now it's on to the Supremes, which will take it up on this record -- which spells near-certain death to Trump's chances of overturning the nationwide injunction, in my estimation. His people would do better to start over, creating a new written record of some more plausible grounds for his actions. Here's a bit -- and the full 99 page PDF Ninth Circuit opinion, just entered and published, in San Francisco:

. . . .It is no hyperbole to say that Dulce Garcia embodies the American dream. Born into poverty, Garcia and her parents shared a San Diego house with other families to save money on rent; she was even homeless for a time as a child. But she studied hard and excelled academically in high school.

When her family could not afford to send her to the top university where she had been accepted, Garcia enrolled in a local community college and ultimately put herself through a four-year university, where she again excelled while working full-time as a legal assistant. She then was awarded a scholarship that, together with her mother’s life savings, enabled her to fulfill her longstanding dream of attending and graduating from law school. Today, Garcia maintains a thriving legal practice in San Diego, where she represents members of underserved communities in civil, criminal, and immigration proceedings.

On the surface, Dulce Garcia appears no different from any other productive — indeed, inspiring — young American. But one thing sets her apart. Garcia’s parents brought her to this country in violation of United States immigration laws when she was four years old. Though the United States of America is the only home she has ever known, Dulce Garcia is an undocumented immigrant.

Recognizing the cruelty and wastefulness of deporting productive young people to countries with which they have no ties, the Secretary of Homeland Security announced a policy in 2012 that would provide some relief to individuals like Garcia, while allowing our communities to continue to benefit from their contributions. Known as Deferred Action for Childhood Arrivals, or DACA, the program allows those noncitizens who unwittingly entered the United States as children, who have clean criminal records, and who meet various educational or military service requirements to apply for two-year renewable periods of deferred action — a revocable decision by the government not to deport an otherwise removable person from the country. . . .

The government may not simultaneously both assert that its actions are legally compelled, based on its interpretation of the law, and avoid review of that assertion by the judicial branch, whose “province and duty” it is “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The government’s decision to rescind DACA is subject to judicial review. And, upon review, we conclude that plaintiffs are likely to succeed on their claim that the rescission of DACA — at least as justified on this record — is arbitrary, capricious, or otherwise not in accordance with law. We therefore affirm the district court’s grant of preliminary injunctive relief. . . .

Um. . . ya' ought-ta' start ova', 45. Jes' sayin'. . .


[U] Echoing Many Of My Themes, At Least 18 Cities Have Filed An Amicus Brief Against Trump's Unlawful Proposed Unlicensed Detention "Rules"

UPDATED -- 11.17.18 @ 11 AM EST: Here is a fine additional brief (just filed overnight), from the AM Law 100 Orrick firm, on why Trump is. . . wrong, here. End, update.

And again, I am in the ACLU's debt, for my comments to the proposed rulemaking -- and the fine amici clearly are as well. They have put a lot more meat on the bones of the arguments, though -- citing each of the cities' long experience protecting kids in LICENSED care facilities.

Without additional ado, here is a bit of the 30 page PDF of the well-reasoned overnight brief, in Flores:

. . . .Many amici, like the City of Los Angeles, Los Angeles County, the City of New York and the City and County of San Francisco all prosecute violations of child welfare laws and health and safety codes in their respective jurisdictions. Cases are routinely referred to these offices for prosecution by the State of California’s and the State of New York’s licensing agencies. And in addition to enforcing state laws, some amici have local ordinances requiring state-licensed facilities to abide by local fire, building, and other safety codes that ensure the safety not only of the children, but also of the staff and first responders.

For example, Chicago’s and Los Angeles’s municipal codes subject state-licensed child care institutions to additional oversight, inspections, and penalties beyond those provided for by the State of Illinois and State of California, respectively. See Chicago Mun. Code § 4-76-010 et seq.; Los Angeles Mun. Code §, These state licensing schemes and local laws reflect amici’s interests in ensuring protection for immigrant children – protections that will not necessarily exist for children housed in federally-“licensed” facilities. . . .

This notion, that 45 can just malevolently "make unlawful sh!t up" -- as he goes along -- must end, especially when (as here) the safety of children hangs in the balance. Onward -- enraged.


Wednesday, November 7, 2018

The "Tangerine Mussolini," In Full Delusion Mode, This Morning: In Close 2018 Races, He Was The Kiss Of Death.

H/T to Karoli, at C&L -- just watch -- three minutes of pure unhinged 45 lunacy:

. . . .Benito Mussolini: "Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power. . . ."

In stark contrast, then: VERY proud of Colorado's choice for Governor; saddened that the NRA pushed Blackburn across the line, in Tennessee. Can't win 'em all, I guess. . . .

Onward. Overall, it was a great night, in many many places -- and especially, for Lauren Underwood -- my grrrrrl!


Tuesday, November 6, 2018

As Promised: My Entirely Public Comment, Just Submitted, On Proposed Federal Rule At 8 C.F.R. § 212.5(b), et seq.

But first, a confession: in truth, I have "borrowed" liberally from the reasoning (and structure), found in the comprehensive and excellent ACLU brief I linked over the weekend, whilst on the road, canvassing over 220 doors.

None the less, here is the salient bit of mine (Tracking No. 1k2-96ek-d8wy). This is, once again, another of 45's odious attempts to act as a despot, and circumvent well-settled US law:

. . . .It seems abundantly clear that this attempted rule-making exceeds the authority of ICEB, DHS and the Trump administration -- after the 1997 Flores consent agreement was entered, in the Central District of California's federal district courthouse. [As you well know, it is of no relevance, or legal moment, that the Flores litigation was commenced under the former Reagan administration, and settled under the former Clinton administration. It binds this current administration, for howsoever long Trump may remain in power.]

In the Flores case, the entire federal government (as an express condition to resolving litigation that had been active since at least 1985) agreed, as a matter of contractual law, that it would abide by specified minimum procedures with regard to speedy release of non-citizen minors in its care. That prompt release clause is a central feature of the Flores settlement / consent.

The instant rule-making proposal, at 8 C.F.R. § 212.5(b)(3)(i) and (ii), materially circumscribes class members’ eligible custodians, providing that children may be released only “to a parent or legal guardian not in detention . . . [or] with an accompanying parent or legal guardian who is in detention.” Such detention is wholly inconsistent with the Flores settlement.

Indeed, ICEB seeks to accomplish through rulemaking what it could not in court: to legitimate the mandatory, long-term detention of non-citizen children in wholly unlicensed detention centers regardless of their and their families’ wishes.

This is so because the proposed rules declare all other custodians ineligible to receive and care for such class members effectively consigns accompanied class members to mandatory detention for howsoever long ICEB / DHS may require to remove the entire family. See 83 Fed. Reg. at 45,526 (“DHS’s policy is to maintain family unity, including by detaining families together where appropriate and consistent with law and available resources. . . .”). By any measure, this is “family unity” with a vengance coming from an agency that only recently was enjoined against separating thousands of children, some still nursing, from their parents.

These proposed rules clearly implement DHS / ICEB's oft-stated and unfounded view that detaining families for the duration of removal proceedings deters other would-be unauthorized entrants. It does not, however, implement or comply with the Flores settlement.

This specific issue is now being litigated in Flores (USDC, CD CA Case No. 85-4544), as motion practice, and may be heard as early as November 7, 2018.

The Flores settlement ¶ 19 generally requires DHS to place class members in non-secure facilities licensed to care for dependent, as opposed to delinquent, minors. Under that court order, DHS and ICEB may deny children licensed placement only under defined circumstances. Flores settlement ¶ 21. A child being apprehended with a parent is not among those circumstances. It is well settled that the Flores settlement applies to all minors in immigration-related custody, accompanied or not.

In proposed 8 C.F.R. § 236.3(a)(9), DHS / ICEB transparently tortures the Flores settlement’s definition of “licensed placement” to fit the Trump administration’s unlawful goal of mandatory family detention. "...If a licensing scheme for the detention of minors accompanied by a parent or legal guardian is not available in the state, county, or municipality in which an ICE detention facility is located, DHS shall employ an entity outside of DHS that has relevant audit experience to ensure compliance with the family residential standards established by ICE...." 83 Fed. Reg. at 45,525.

The DHS / ICEB government entities may not abrogate, by rule, a contract which it made, as an enforceable bargain -- to all future minors: they must be released promptly, to any guardian -- and may only be held in state-LICENSED facilities. Flores is plain on this score.

So, it is plain that, as a practical matter, the ill-starred, and unlawful proposed rules will simply strip accompanied Flores class members of their right to licensed placement.

Had the litigants wished to let the government's DHS or ICEB agents or an unidentified entity of their choosing — set minimum standards for children’s detention, the Flores settlement would have so provided, in January 1997. It does not because DHS and ICEB agents (and previously, INS agents) have historically placed children in substandard facilities. The Flores litigants therefore insisted, and INS, DHS and ICEB agreed, to place children in facilities holding a state-issued, dependent care license, AS A MINIMUM PROTECTION.

Finally it should be noted that Flores settlement ¶ 6.17 requires that a “licensed program” be “NON-secure as required under state law.” Yet, the proposed rules contrive to define the term, “non-secure,” to legitimate DHS / ICEB agents confining non citizen children indefinitely in unquestionably LOCKED, PRISON LIKE facilities.

That the government cannot do by mere rule-making. It cannot change the plain language of its prior agreements. Not without an Act of Congress.

DHS and ICEB well know this -- and very shortly it is likely that the able USDC Judge Dolly Gee, sitting in Los Angeles will so rule.

Accordingly, this proposed rule-making ought to be deferred, as a matter of comity and full faith and credit. Alternatively, very shortly it will be enjoined. Entirely.

Now you know. Grinning ear to ear. It hasn't been since the early and late 1990s that I've offered public commentary (back then, on SEC proposed rules), in the Federal Register. I guess -- now. . . I'm back in the game. Onward, to a blue tsunami celebration, tonight!


Only After The Dust Settles Tomorrow...

. . .will we discuss whether any political move on US pharmaceuticals pricing / access will actually take hold. Everything from November 2016 to tonight. . . has been mere bluster. Meaningless. Especially from Seema Verma and (of course) 45, but even FDA's Gottlieb. Now we will know what Congress will actually do. And make no mistake -- it will take an Act of Congress. It cannot be done by rule, or executive order.

Unless 45 wants to officially declare that his whole "beautiful" US economy is NOW in shambles, and tanking (i.e., never gonna' happen), he simply has no authority to set prices in pharma -- or any other indstry, for that matter. The only (Nixon era 1969) Act of Congress that would allow it. . . requires an express finding by the President, of an economic calamity -- system wide.

No need to waste electrons on. . . nonsense. So, come Thursday -- we will see. . . what's actually what.

[Side Note: This one, we've covered since early April 2018 -- an antitrust / access pricing would-be class action suit, in the Eastern District of Pennsylvania -- related to the combo MMR vaccines sold by Kenilworth, is likely headed to an entirely private arbitration. Now you know. Onward.] नमस्ते

In Re Flores -- July 30 Order Takes Full Effect -- Court Appointed Monitor Begins Oversight, In Earnest.

And. . . 45's mindless, soulless minions of hate (at the southern border) lose in a federal court, once again. [My earlier backgrounder story -- one of dozens.]

Here is the full text of the able Judge Dolly Gee's overnight order, in LA -- in the ongoing Flores proceedings:


On 10/5/2018, the Court issued an Order appointing Andrea Sheridan Ordin as the Special Master/Independent Monitor ("Appointment Order"), which authorized her to (inter alia) "[m]onitor compliance with the Court's 6/27/2017 and 7/30/2018 Orders, and other Court orders issued" during her term [494]. On 10/12/2018, Defendants filed an Ex Parte Application for Partial Reconsideration of the Appointment Order, wherein Defendants request that the Court exempt the 7/30/2018 Order from the scope of the Appointment Order, along with any other Orders the Court issues during the Monitor's Term [498].

On 10/15/2018, the Court construed Defendants' Ex Parte Application as a motion for partial reconsideration, set a briefing schedule on the motion, and sua sponte stayed those aspects of the Appointment Order that relate to the enforcement of the Court's 7/30/2018 Order [500]. the Court DENIES Defendants' Motion for Partial Reconsideration and LIFTS the stay of the Appointment Order. The Court VACATES the 11/9/2018 hearing. . . .

Now you know. Go vote. Make a difference. End the NRA/Russian control of the Volunteer State's US Senate seats.


Saturday, November 3, 2018

The Next Battlefield, In The '97 Flores Asylum Class Action Settlement: 45's Unlawful Federal Rules Proposed

We will discuss this motion to enforce the '97 Flores settlement (ACLU motion and brief -- 78 page PDF, due to be heard as early as November 6, 2018). . . when I'm off the road. [And hopefully, but not directly related hereto, due to the truly massive early voting numbers at right, we will be celebrating a defeat of. . . Marsha Blackburn.]

Here's a bit:

. . . .Plaintiffs will and do hereby move the Court for a class-wide order (i) declaring Defendants in anticipatory breach of the settlement approved by this Court on January 28, 1997 (“Settlement”); (ii) provisionally adjudicating Defendants in civil contempt of the Settlement and the Court’s orders enforcing it; and (iii) enjoining Defendants against implementing the proposed regulations published at 83 Fed. Reg. 45486 (Sept. 7, 2018), or their material equivalents. . . .

More of 45's foot-dragging, and filibuster by unlawful rule proposals -- in copious evidence here. Go vote blue.