Immigration Law 101

Where immigration law and policy comes from and its history

Dear Readers, 

The next editions detour from the criminal legal world to discuss immigration, very much an intersectional body of law. Over the last few years, I received many questions about where immigration law and policy comes from and its history, as well as what the various labels mean, such as asylee, migrant, and refugee. While this is a massive topic, I will do my best to give you the tools you need to get or stay informed over the next two or three editions. 

Before diving in, I want to emphasize again that immigration law is both a huge and complex topic with numerous tributaries and confluences. If you feel overwhelmed or confused about what you are seeing and hearing about immigration law and policy in the news, you are not alone. Grappling with immigration law is quite a feat for those who practice in the discipline, let alone for those of us, lawyer or layperson, who are trying to stay informed and (perhaps) become engaged in activism. 

Immigration Law: The Beginning

Immigration law is generated, enacted, administered, and enforced by the US Federal Government. However, until the mid-1800s, immigration law was largely under the purview of the states. As one scholar posited, “Anxiety over Asian immigration led the federal government to assume regulatory authority over immigration.”1 In response to and because of rampant racism, bigotry, and ethnocentrism, Congress passed a series of laws between 1875 and the late 1880s severely limiting the entry of Chinese people to the US.2

Many people of Chinese descent challenged these racist, exclusionary laws on various bases. In sum, all of the plaintiffs lost. SCOTUS determined that the Federal Government has virtually unqualified plenary power over immigration law. The primary reason is: who is allowed to enter, be excluded, or be removed from this country are matters of national sovereignty and, therefore, that power should belong to the Federal Government.

By deciding this way, SCOTUS severely limited its own power, as well as the power of lower federal courts, to interfere with immigration law and its enforcement.3 These exclusionary, racist laws became the foundation on which modern-day immigration law was built.

What about the states?

Because immigration law is in the federal domain, states may not pass laws that conflict with or infringe upon federal law because of the Supremacy Clause or doctrine of preemption. 

For example, states cannot pass laws about who is allowed to enter the country, be excluded from the country, or removed from the country. However, because states have the power to control local issues, such as who is permitted to hold a driver’s license or state-issued identification card, they can pass laws that allow non-citizens to get a driver’s license. 

**It’s important to remember that state laws must meet Constitutional muster, meaning that certain limits on government power and protections of individual rights in the Federal Constitution must still be respected by the state. (More about the rights of non-citizens in upcoming newsletters). 

Role of Congress

Because immigration law and policy resides in the federal realm, many of the issues discussed in prior newsletters come into play. SCOTUS, as the interpreter of the Constitution, held that Congress, the sole legislative body, has plenary power over creating and enacting immigration law.

Immigration statutes, then, must pass the same way as any other legislation: it must pass both the House and the Senate and it must be signed by the President, or if the President vetoes the bill, Congress can override the veto using the process explained here.

The primary statutes governing immigration are the Immigration and Nationality Act (INA), first enacted in 1952 and amended a number of times since, and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), enacted in 1996.4

INA brought together a number of immigration statutes in one place. There is no question that the 1952 act and its earlier iterations, “[i]n all of [their] parts, the most basic purpose of the 1924 Immigration Act [and related statutes] was to preserve the ideal of U.S. homogeneity.”5 Quota systems and other tools were used to limit or prohibit entirely newcomers from Asia and eastern Europe. Now, INA is crafted a bit differently, allegedly removing nationality based quotas with the primary purpose to “to reunite families.” It remains the primary statute outlining the who, what, where, when, and why of entry and relocation to the US.

IIRIRA “created new immigration-related crimes and established the concept of ‘criminal alienhood,’ which has slowly, but purposefully conflated criminality and lack of immigration status.”6 According to scholar Donald Kerwin, IIRIRA also

eliminat[ed] due process from the overwhelming majority of removal cases, curtail[ed] equitable relief from removal, mandat[ed] detention (without individualized custody determinations) for broad swaths of those facing deportation, and erect[ed] insurmountable, technical roadblocks to asylum.

Finally, the Homeland Security Act of 2002 greatly changed the structures that administer, regulate, and enforce immigration laws and regulations. (More on that below).

Ultimately, these statutes delegate significant power to the executive branch to administer, enforce, and regulate.

Resources on the History of Immigration Statutes in the US

For a good summary of these two laws, and the full history of immigration laws passed by Congress, check out the following resources:

“Immigration History,” Department of History, University of Texas at Austin, 2019, available at: https://immigrationhistory.org/timeline/

Stephanie Vatz, “Interactive Timeline: History of Immigration in America,” KQED, May 5, 2013, available at:  https://www.kqed.org/lowdown/7383/u-s-immigration-policy-timeline-a-long-history-of-dealing-with-newcomers

“Major US Immigration Laws, from 1790 -  Present,” Migration Policy Institute, March 2013, available at:  https://www.migrationpolicy.org/sites/default/files/publications/CIR-1790Timeline.pdf

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The Role of the Executive Branch in Immigration

The executive branch holds a great deal of power over immigration law, as well, because it is a tasked with the implementation, administration, and enforcement of immigration statutes as delegated by Congress.

First, “[a]s chief executive, the president not only has the duty to enforce laws, but also the authority to decide how to do so.”7 Through this power, the President and his/her executive agencies have immense power to decide who may enter or be removed from the country.8 Some presidents have used this power to issue executive orders regarding who may stay in the country or who is not allowed to enter the country or have used the tool of directing agencies to change policy and regulations.

For example, in 2012, President Obama, through a directive issued by Secretary of Homeland Security, created the Deferred Action for Childhood Arrivals (DACA) program.

In 2017, Donald Trump used executive orders to institute three iterations of a Muslim Ban that was ultimately upheld by SCOTUS in Trump v. Hawaii.9

Trump v. Hawaii acknowledged that presidents hold immense power over national security decisions, including who may be included or excluded from this country. However, DACA was recently declared unconstitutional by a federal district court in Texas. If SCOTUS takes the case, there may be new guidance as to what powers the executive has over immigration. Time will tell. 

Executive Agencies and Immigration

In addition to the President, the executive branch is made up of numerous agencies of which the president is the Chief Executive. 

After 9/11, the structure of immigration administration and enforcement changed a great deal with the passage of the Homeland Security Act. Immigration and Naturalization Services previously handled nearly all of the immigration process, enforcement, and border patrol. For a history from the government’s perspective, check out this site.

With the creation of the Department of Homeland Security in the Homeland Security Act of 2002, these responsibilities were divided across new or reorganized agencies. In the immgration context, the primary agencies include, but are not limited to:

  • Department of Homeland Security (DHS)

    • Customs and Border Patrol (CBP): border immigration enforcement

    • Immigration and Customs Enforcement (ICE): internal immigration enforcement

    • Citizen and Immigration Services (USCIS): immigration services, i.e. applying for lawful permanent residency

  • Department of Justice (DoJ)

    • Executive Office for Immigration Review (EOIR): responsible for adjudicating immigration cases

  • Department of State

    • Bureau of Population, Refugees, and Migration

  • Department of Health and Human Services 

    • Office of Refugee Resettlement

The Migration Policy Institute provides a helpful factsheet that explains what each of these departments does and how they are structured.  It’s worth a look.

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Key Things to Know About the Administration of Immigration Law

  1. The President is the Chief Executive of each and every one of these agencies, which means every time a new president is elected, the way that immigration law is administered, regulated, and enforced can and does change

  2. Working in conjunction with the President, the U.S. Attorney General (AG) and the Secretary of Homeland Security hold immense regulatory and administrative power. This means that they can institute policies within their own agencies as to who may enter and remain in the country and who is removed as discussed above.

    In particular, DHS and DoJ have immense regulatory authority. Federal immigration is largely governed by the Code of Federal Regulations, Title 8. Aliens and Nationality. These regulations are created by the executive agencies to provide more detail as to the administration and enforcement the immigration statutes enacted by Congress.

    While there is a specific process for instituting these regulations, much of immigration law is predicated on regulations that are not enacted by Congress, but are created by the administrative agencies.  (For more on the administrative state, check this out).

  3. Immigration courts are overseen by the DoJ not SCOTUS or Article III courts, which are a separate branch of government. Immigration courts are a part of the executive branch.

  4. Immigration judges are appointed by and in the employ of the AG. Immigration judges are not Article III judges, meaning that they are not part of the judicial branch of government. Immigration judges are employed at the pleasure of the AG, and ultimately, the President. They must follow the specific guidance of the AG.

    For example, when I was a law student working in the Immigration Clinic, Attorney General Jeff Sessions handed down a directive overruling a decision by the Board of Immigration Appeals, a department of the EOIR in the DoJ. In that decision, Sessions determined that gang violence and domestic violence are not grounds for asylum without further proof that the person’s home government failed to protect them. All immigration judges, then, were required to follow this directive.

    Sessions’s directive was devastating to the thousands of individuals who are fleeing violence in their home countries and a total reversal of U.S. policy in recent years. The AG was able to make this change with the stroke of a pen, or more accurately, the press of a button. 

*To understand more about the context of this directive and why it was so devastating, check out: Andy Warner and Matthew Green, “Why So Many Central Americans Are Seeking Asylum in the U.S., August 13, 2018, available at:  https://www.kqed.org/lowdown/31036/why-so-many-people-in-the-northern-triangle-are-seeking-u-s-asylum

In Conclusion

Though, according to SCOTUS, Congress has plenary power over immigration, the executive branch (the President and agency heads) hold immense power over the way the immigration system actually works. Through broad-based regulation, I would argue that the executive branch is, in practice, the most essential component to the ways in which immigration law and policy is acted upon—unless and until Congress legislates otherwise.

In the next edition, I focus more on the ways in which immigration law categorizes and labels individuals entering this country and what those categories and labels mean in practice.

Please do take a look at the immigration law timelines and the attached articles and reports because they provide incredibly important social and historical context for the why of immigration law.

More resources next week, but for now, check out the book lists below.

Thank you for reading!

Respectfully,

Amy

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Book Lists:

From the Lutheran Immigration and Refugee Service: https://www.lirs.org/books-about-immigration/

From Book Riot: https://bookriot.com/best-books-about-immigrants/

From The Guardian: https://www.theguardian.com/books/2020/feb/05/migration-book-recommendations-american-dirt

If you have other suggestions, please add them in the comments!

1

Gabriel J. Chin, “Chae Chan Ping and Fong Yue Ting: The Origins of Plenary Power,” available at: file:///C:/Users/amygr/Downloads/SSRN-id722681.pdf.

2

Id.; see also, Garrett Epps, “The Ghost of Chae Chan Ping,” The Atlantic, January 20, 2018, available at: https://www.theatlantic.com/politics/archive/2018/01/ghost-haunting-immigration/551015/.

3

Adam B. Cox and Cristina Rodriguez, “The President and Immigration Law,” available at: file:///C:/Users/amygr/Downloads/SSRN-id1356963.pdf. See also, Ilya Somin, “Immigration Law Defies the American Constitution,” The Atlantic, October 3, 2019, available at: https://www.theatlantic.com/ideas/archive/2019/10/us-immigration-laws-unconstitutional-double-standards/599140/.

4

For more on IIRIRA, check out this report by Donald Kerwin of the Center for Migration Studies, “From IIRIRA to Trump: Connecting the Dots to the Current US Immigration Policy Crisis,” available at: https://cmsny.org/publications/jmhs-iirira-to-trump/.

In that report, Dr. Kerwin recalled that “President William J. Clinton asserted that the legislation strengthened ‘the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system — without punishing those living in the United States legally’.”

5

“The Immigration Act of 1924 (The Johnson-Reed Act),” Office of the Historian, US Department of State, available at: https://history.state.gov/milestones/1921-1936/immigration-act. The Office of the Historian also wrote a piece about the 1952 INA: https://history.state.gov/milestones/1945-1952/immigration-act

6

Donald Kerwin, “From IIRIRA to Trump: Connecting the Dots to the Current US Immigration Policy Crisis,” Center for Migration Studies, available at: https://cmsny.org/publications/jmhs-iirira-to-trump/.

7

“The President’s Broad Legal Authority to Act on Immigration,” National Immigration Law Center, August 2014, available at: https://www.nilc.org/wp-content/uploads/2015/11/president-legal-authority-2014-08-20.pdf.

8

Cristina Rodriguez and Adam Cox, “The President and Immigration Law: Introduction to a Just Security Series,” Just Security, October 12, 2020, available at: https://www.justsecurity.org/72793/the-president-and-immigration-law-introduction-to-a-just-security-series/

9

See also Cristina Rodriguez, “Trump v. Hawaii and the Future of Presidential Power over Immigration,” American Constitution Society, available at: https://www.acslaw.org/analysis/acs-supreme-court-review/trump-v-hawaii-and-the-future-of-presidential-power-over-immigration/; Peniel Ibe, “5 things to know about the Muslim ban,” American Friends Service Committee, Feb. 21. 2020, available at: https://www.afsc.org/blogs/news-and-commentary/5-things-to-know-about-muslim-ban

Explainer: R Kelly

Dear Readers,

Thank you for your patience and understanding over the last month. Lots of change happening over here, and, frankly, lots of change happening all over the place.

This week, I discuss the R Kelly cases—the two federal cases in Chicago and New York and the two state cases in Illinois and Minnesota. These cases touch on a number of topics we have covered in past newsletters and demonstrate the interplay between federal and state players.

Before I begin, I want to recognize the intense conversation/debate about R Kelly’s alleged history of sexually assault and abuse of Black women and girls that has roiled for nearly three decades. Many media sources have dug deeply into the layers of race, gender, and social norms that are ever-present in Mr. Kelly’s cases, and in nearly every case in the criminal legal system. Please check out the sources in the footnote to read more about the racial, social, and political context of R Kelly’s cases.1

In this newsletter, I focus solely on the facts and travel of Mr. Kelly’s cases—who, what, where, when, why, and how—so that you can better understand the excellent reporting on R Kelly, survivors, and the criminal trials.

R Kelly

R Kelly is currently facing indictments in three courts of law and was just convicted in the federal district court for the Eastern District of New York.

Between 1997 and 2020, Mr. Kelly had a number of civil suits filed against him by women alleging sexual assault, which appeared to have been settled out of court. He has also had multiple criminal charges filed against him, but either he won at trial (meaning he was acquitted) or the charges were dismissed.

What’s In A Name?

If you have Googled “R Kelly and criminal charges” recently, then you will notice, due to an earlier newsletter, that there are two cases titled U.S. v. Kelly and then there are State of Minnesota v. Kelly and The People of the State of Illinois v. Kelly.

U.S. v. Kelly means that United States Attorneys (USAs) from the Department of Justice, a federal agency, brought criminal charges against R Kelly for allegedly violating federal law. A federal grand jury decided to indict Mr. Kelly based on the evidence presented (more on that below), and the USAs then filed written indictments in the federal district court in their assigned circuit.

When the US is located left of the “v.”, it tells us that we will be in federal court and that a federal agent is initiating the charges. These cases will need to comply with the federal Constitution, federal law, and federal court rules and procedures. (More on each of those in later newsletters).

In State of Minnesota v. Kelly and The People of the State of Illinois v. Kelly, county-level prosecutors filed criminal charges against Mr. Kelly. The District Attorney for Hennepin County in Minnesota filed a criminal complaint against Mr. Kelly in the District Court (located in Minneapolis) charging that he violated Minnesota law.

The Illinois case was brought to a state-level grand jury by the District Attorney for Cook County. The grand jury decided to indict Mr. Kelly on violations of Illinois state law. If the case goes to trial, it will be heard in the Circuit Court of Cook County, located in Chicago.

In both state cases, other than the incorporated rights under the federal Constitution, these cases will adhere to state laws and state court rules and procedures.

What Are Grand Juries?

Just as there are federal and state governments, so too are there federal and state grand juries. Federal grand juries are required under the federal Constitution, but states may choose whether to utilize grand juries as part of their criminal legal procedures.

While the different jurisdictions operate by different rules, policies, and procedures, such as how the jury pool is selected, how many jurors must be seated, etc., they all have some things in common. (Caveat: There are exceptions to every rule, please understand I am speaking in generalities).

First, grand juries are required by the Fifth Amendment of the federal Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .

When a person is charged with a death-eligible crime (meaning they could face the death penalty) or with certain federal felonies, they must be indicted by a grand jury. This does not apply to the states, though many states do utilize a grand jury/indictment system for serious felonies.

Second, grand juries are supposed to be an impartial panel seated to hear evidence presented by prosecutors to determine if there is “probable cause to believe the individual has committed a crime and should be put on trial.” If the jurors vote to indict, then the prosecutor files a written indictment and the criminal legal proceedings begin.

Third, grand juries typically only include the prosecutors, the jurors, any witnesses called by the prosecutor, the court reporter, and, if needed, the interpreter. The person accused, his/her counsel, counsel for the witnesses, and all others are excluded from the room during the proceedings.

For more on grand juries, check out:

“How Federal Grand Juries Work, NPR, located at: https://www.npr.org/templates/story/story.php?storyId=4975837

“Charging,” U.S. Attorneys: Justice 101, U.S. Department of Justice, located at: https://www.justice.gov/usao/justice-101/charging

The Federal Indictments/Convictions

The USAs in the Eastern District of New York and the USA in the Northern District of Illinois brought slightly different federal criminal charges against Mr. Kelly.

Northern District of Illinois

In the Northern District of Illinois (NDI), a law enforcement team, including Immigration and Customs Enforcement’s Homeland Security Investigations, the Internal Revenue Service’s Criminal Investigations unit, and the Chicago Police Department, are credited with assisting the USA in bringing forward the evidence needed to support a 13-charge indictment. Each of these entities, except for CPD, are part of the executive branch of the federal government. I note this for upcoming newsletters, as well as to highlight the powerful, federally-funded agencies collaborating to prosecute Mr. Kelly.*

The NDI indictment involves survivors between the ages of 13- and 17-years-old at the time of the outlined incidents. The alleged incidents span from the late-1990s through the 2010s. The counts include:

  • the creation and transportation of child pornography across state lines,

  • the receipt of child pornography from across state lines,

  • the use of the means of interstate commerce to persuade/coerce/induce a minor to engage in sexual activity, and

  • obstruction of justice by conspiring to use abuse, violence, threats, blackmail, and other controlling behaviors to prevent the alleged victims from providing evidence to law enforcement.

The various statutes, e.g. 18 USC 2422 or 18 USC 2251(a), describe what the prosecutor must prove beyond a reasonable doubt in a court of law in order to convict Mr. Kelly. If he is convicted, he could face significant prison time and will be required to register as a convicted sex offender under SORNA.

Eastern District of New York

On September 27, 2021, Mr. Kelly was found guilty of all counts included in the Eastern District of New York (EDNY) indictment: racketeering, bribery, sexually exploiting children, kidnapping, forced labor, and violations of the Mann Act2 after a 7-week jury trial in an EDNY federal district court.

The EDNY USA alleged that the purpose of R Kelly’s business and brand was both to make music and to “recruit women and girls to engage in illegal sexual activity with [Mr.] Kelly.” The racketeering charges involve allegations that R Kelly and his associates collaborated to coerce or induce young girls across state lines to both engage in sexual activity and create videos of their sex acts, which constitutes child pornography under the law.

In other words, the EDNY indictment goes beyond R Kelly’s alleged individual sexual acts with minors to aver that R Kelly’s entire business enterprise, including his employees, endeavored to make those unlawful sexual encounters and assaults happen. The indictment stated that R Kelly’s employees helped facilitate meetings between R Kelly and minors by introducing themselves to Mr. Kelly’s selected girl, bringing her to meet him, making travel arrangements, setting up meetings via telephone and internet, etc., all with the understanding that they were facilitating R Kelly’s sexual assault of minors.

R Kelly’s sentencing is scheduled for May 4, 2021. Based on the above convictions, he is facing a wide range of prison time, from the mandatory minimum of 10 years to life imprisonment. This range is based on the federal sentencing guidelines.

What is interesting about this conviction and confounding some legal thinkers is how the jury convicted Mr. Kelly of racketeering. If any of you listen to true crime podcasts, you may have heard the terms racketeering or RICO (Racketeer Influenced and Corruption Organization). As R Kelly’s defense attorney stated, “The nature of a RICO case typically fits that of Mafia or drug kingpins directing their underlings to do various (illegal) things and this is a far different scenario.” How and why the jury voted to convict R Kelly on these particular charges will be interesting to understand as this case is studied and analyzed in upcoming months and years.

The Commerce Clause Returns

If you take a look, you will notice that all of the above federal charges mention “interstate commerce,” “interstate travel,” or “across state lines.” Why? Because the federal criminal laws under which Mr. Kelly has been charged/convicted were all enacted by Congress. Congress does not have policing power under the Constitution and must couch any criminal statute it enacts in one of its enumerated powers. Therefore, all of the charges stem from federal criminal laws that Congress enacted through the anchor of the Commerce Clause.

The State Indictments/Charges

In State of Minnesota v. Kelly R. Kelly is charged with two felonies:

  1.  Prostitution-Engage 16 to 17 Yr Old

  2. Prostitution-Hire 16 to 17 Yr Old

Under Minnesota law, the prosecutor filed a complaint, stating the charges against Mr. Kelly and providing enough facts to demonstrate that s/he has probable cause to believe that Mr. Kelly committed those acts. The prosecutor alleged that Mr. Kelly solicited, hired, and had sex with a 17-year-old resident of Minnesota while he was visiting the state.

In February of 2019, R Kelly was indicted by a Cook County grand jury on multiple counts of aggravated criminal sexual abuse of a minor. This case alleges that Mr. Kelly had sex with minors between the ages of 13 and 17. There are also three separate indictments with a combined 20 counts, including aggravated criminal sexual abuse, criminal sexual abuse, and bribery.

How these two state cases will resolve given Mr. Kelly’s recent federal conviction and outstanding federal indictment remains to be seen. It is possible that the states will decide not to spend its resources on prosecuting R Kelly because he was already convicted for similar crimes in federal court; however, there is nothing to stop the states from proceeding. Time will tell.

As ever, thank you for reading!

Respectfully,

Amy

2

The Mann Act, also called the White-Slave Traffic Act of 1910, has a storied racist history based on fears of white women being trafficked for sex with Black men, as well as concerns of women’s sexual freedom. It has been used over the years to punish consensual, interracial sex. Most infamously, the federal government used the Mann Act to harass, indict, and convict record-breaking boxer, Jack Johnson. Learn more about the Mann Act here and here.

The State of Justice 20 Years After 9/11

Today, despite calls for justice and atonement, we live in a system where justice is no longer delayed, it is denied.

Dear Readers,

After four years of stewing and with the approach of the twentieth anniversary of 9/11, I finally wrote the below op-ed about two civil procedure cases that changed our civil justice system. In law school, the two cases discussed in the op-ed are often treated as a natural evolution in Supreme Court jurisprudence, not as the glaringly obvious efforts of a Court intentionally scaling back access to justice, particularly for civil rights’ plaintiffs following 9/11. As with many pivotal cases taught in law school, the story of the people involved and the historical-political contexts are rarely, if ever, discussed—an issue I believe is neglectful, at best, dangerous, at worst. You will see why below.

Though this op-ed addresses the civil system, the issues discussed deeply impact the broader criminal legal system. For many people wrongfully arrested or convicted, for those whose rights were violated by law enforcement, and for many other seeking redress for related issues, the civil legal system is the place they go for justice. Post-9/11, that system became significantly more difficult to access.

Some Personal Context

I was 22-years-old when I watched in horror as the planes flew into the World Trade Center towers, the Pentagon, and the grassy knoll in Pennsylvania. Stranded in San Francisco, I felt immense fear as I witnessed armored vehicles roll on to the Golden Gate Bridge in anticipation of other attacks. Five days later, I was on one of the very first flights to take off, a hushed, pregnant silence filled the plane and I shook for the entire six hour flight back to Providence.

Like so many, I was horrified and heartbroken by what I saw that day. That heartbreak has been compounded many times over as I have borne witness to the many injustices that followed, caused by our governments’ and my neighbors’ reaction to 9/11. In the twenty years since, this country has invaded and bombed countries all over the Middle East, North Africa, and Central Asia, operated black sites, large military prisons and Guantanamo Bay, conducted summary executions of American citizens abroad, all in the name of national security, and so much more.1

Not to be forgotten, however, is the profound effect 9/11 has had on the U.S. criminal and civil legal systems. One such legacy is discussed below.

The Op-Ed

As the twentieth anniversary of 9/11 beckons, the struggle toward a more just and equitable society persists. In response to the police killings of Breonna Taylor, George Floyd and 1,100 others in 20202, Americans again filled the streets proclaiming that Black, Brown and Indigenous lives matter and that justice and accountability are imperatives. The events of 20203 demonstrated with urgency and clarity that the U.S. remains an inequitable nation. 

Because of another cataclysmic event in American history—9/11—demands for accountability and justice through the courts are often denied.4 In the 20 years since 9/11, many seeking legal remedies for abuses of government power face a carefully constructed barrier crafted by the U.S. Supreme Court. Between 2006 and 2009, the Court struck two stunning blows to those seeking redress for civil rights violations by attacking an area of law that is typically only discussed by legal nerds—the standard of pleading.5 

Legal beagles around the U.S. shiver down their spines when they hear the term “Twiqbal,” a moniker for the two Supreme Court cases that limited access to the civil justice system: Bell Atlantic Corp. v. Twombly6 and Ashcroft v. Iqbal7. Yet in a quick review of the mainstream media from the aughts, these decisions were barely a blip in the 24-hour news cycle. Pleading standards are neither scintillating nor easily understood. Nonetheless, pleading standards are the first hurdle that must be cleared to get justice.

Pleadings are the beginning stages of a civil lawsuit where the parties outline their claims and defenses. Before 2006, a plaintiff needed to submit a “short and plain statement,” outlining the alleged harm for which relief is sought and giving the defendant fair notice. In the 1953 Conley v. Gibson decision, Justice Hugo Black noted “the purpose of pleading is to facilitate a proper decision on the merits.”8 If a person could explain that they had been harmed and facts to support the claim would be discovered during litigation, the complaint should be determined on its merits. The goal was to make justice accessible for all.

After 9/11, everything changed. In 2001, Javaid Iqbal, a Pakistani citizen and Muslim, was held indefinitely with hundreds of Muslim men in harsh conditions, which included “serial strip and cavity searches,” physical abuse and prohibition of prayer.9 Mr. Iqbal did not know the names of the specific law enforcement officers who did these things; instead, he filed suit against high-level government officials, alleging they instituted the policies that violated his constitutional rights. The Supreme Court did not apply the Gibson standard, but heightened the pleading standard, making it a formidable barrier for those seeking justice. 

Because of Iqbal, plaintiffs must provide significant factual detail about the who, what, where, when and why and show how they can prove it — previously a level of detail that would only be required once the case was underway and plaintiffs could compel the defendants to turn over the evidence. Plaintiffs must now find evidence to support their claims without the power of the court to compel the defendant to give it over.10 Remember the lawsuit to get the police body cam videos of the Laquan McDonald shooting?11

As Dr. Martin Luther King, Jr. said, “It may be true that the law cannot make a man love me, but it can keep him from lynching me . . .”12 With the 20th anniversary of 9/11 approaching and our nation still reeling from the events of 2020 and the first half of 2021, Iqbal looms large. In the stroke of a pen, the Supreme Court sealed out of the courts thousands of plaintiffs harmed by law enforcement. Without access to the courts, our communities lose one of the most powerful tools of accountability and protection, as imperfect as that tool may be. Today, despite calls for justice and atonement, we live in a system where justice is no longer delayed, it is denied.

Respectfully,

Amy

1

Here is a paper I wrote about the U.S. effort to transfer American citizens determined by the U.S. military to be enemy combatants to foreign countries for trial. “Does Doe v Does Doe v. Mattis Open the Door the Door to Citiz o Citizen-Detainee T en-Detainee Transfer?", Roger Williams University Law Review, located at: https://docs.rwu.edu/cgi/viewcontent.cgi?article=1693&context=rwu_LR

2

“2020 Police Violence Report,” Mapping Police Violence, located at: https://policeviolencereport.org/

3

“2020: The Year in Events,” History.com, located at: https://www.history.com/topics/21st-century/2020-events

4

“Human Rights and Civil Liberties,” The Costs of War Project, located at: https://watson.brown.edu/costsofwar/costs/social/rights

5

“Pleading,” Legal Information Institute, located at: https://www.law.cornell.edu/wex/pleading

6

550 U.S. 544 (2007), located at: https://www.oyez.org/cases/2006/05-1126

7

556 U.S. 662 (2009), located at: https://www.oyez.org/cases/2008/07-1015. In his opinion, Justice Kennedy wrote:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of ‘entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).

8

Conley v. Gibson, 355 U.S. 41, 48 (1957), located at: https://www.oyez.org/cases/1957/7

9

For more on Javaid Iqbal’s story, see Shirin Sinnar’s “The Lost Story of Iqbal,” in The Georgetown Law Journal, located at: https://www-cdn.law.stanford.edu/wp-content/uploads/2017/02/sinnar-lost-story-of-iqbal.pdf

10

“What is a Motion to Compel?”, Valiente Mott, located at: https://valientemott.com/blog/motion-to-compel/. See also Monette Davis, “Applying Twombly/Iqbal on Removal,” ABA Journal, located at: https://www.americanbar.org/groups/litigation/committees/pretrial-practice-discovery/practice/2020/applying-twombly-iqbal-on-removal/

11

Jeremy Borden, “How a little-known, Uber-driving freelancer brought the lawsuit that forced Chicago to release a police shooting video,” Columbia Journalism Review, located at: https://www.cjr.org/united_states_project/brandon_smith_chicago_police_laquan_mcdonald.php. See also, Nausheen Husain, “Laquan McDonald timeline: The shooting, the video, the verdict and the sentencing,” located at: https://www.chicagotribune.com/news/laquan-mcdonald/ct-graphics-laquan-mcdonald-officers-fired-timeline-htmlstory.html

12

An Address by the Reverend Dr. Martin Luther King, Jr., Cornell College, Mount Vernon, Iowa, October 15, 1962, located at: https://news.cornellcollege.edu/dr-martin-luther-kings-visit-to-cornell-college/

Congressional Power in Action

The final SORNA edition addressing Congress’s legislative power and the laws it enacts that profoundly impact millions of individuals, families, and communities

Dear Readers,

Why does SORNA matter? Over 900,000 people are now on the national sex offender registry for crimes and that list grows every day as both state and federal governments continue to expand their registry laws. As these laws are expanded, many valid questions about whether required registration protects from and prevents sexual abuse and assault abound.

I think back on my first post about SORNA and recall that much of the scholarship about sex offenses indicates that these registry laws do not protect and prevent sexual abuse and assault because they are not designed to address what we know about who, why, how, and where sexual abuse and sexual assault occurs.

Additionally, the legal and civil rights question remain: Whether SORNA and laws like it serve to primarily alienate, ostracize, and further punish those who were convicted of crimes that require registry.

These questions and their answers impact nearly 1 million people convicted of crimes requiring registration, and that number grows daily. But, we cannot only count the number of people on the list. Millions of family members, survivors, and community members are deeply impacted by these laws, as well.

Nondelegation Doctrine

As I wrote in the a recent newsletter, “Congress cannot delegate its legislative authority to other branches of government, such as administrative agencies, or private organizations.” Congress, and Congress alone, is the legislative body for the U.S. When it does delegate, it must provide an “intelligible principle,” meaning a clear directive as to what powers it is delegating to that agency.

SORNA delegated to the Attorney General (AG) the authority to determine if SORNA applied to people convicted prior to its enactment and, if so, to whom it should apply.1 Additionally, the AG could prescribe the rules for registration for those previously convicted of sex offenses.2 In 2007, and finalized by AG Holder in 2010, the AGs determined that SORNA did apply retroactively and anyone convicted of a sex offense that required registry must register, regardless of when the conviction occurred.3

As you may expect, many people challenged the constitutionality of SORNA and the delegation to the AG. In 2018, Gundy v. U.S. was argued in front of SCOTUS. Mr. Gundy’s attorney argued the following:

SORNA's delegation provision grants unguided power to the nation's top prosecutor to expand the scope of criminal laws and to impose burdensome, sometimes lifetime registration requirements on hundreds of thousands of individuals . . . It combines criminal law-making and executive power in precisely the way that the Constitution was designed to prohibit.4

She is arguing that giving the AG the power to determine who must register, when, and how is an unconstitutional use of both congressional and executive power. 

SCOTUS, however, disagreed. In Reynolds v. United States, 565 U.S. 432 (2012)5 and again in Gundy v. United States, 139 S. Ct. 2116 (2019), SCOTUS held that SORNA does not violate the nondelegation doctrine because the AG does not have “unguided and unchecked authority”6; instead, Congress clearly limited the AG’s role to determining what retroactive registration was feasible as far as implementation.7

In other words, Congress had clearly intended that those with previous sex offense convictions be included under SORNA and all that was left for the AG were the practicalities of implementation. Thus, SORNA and the delegation to the AG are constitutional.

Both opinions were written by two “liberal” leaning justices on the court, Breyer and Kagan, with Sotomayor and Ginsburg joining. In Gundy, it was Gorsuch’s dissent that argued that SORNA included an unconstitutional delegation of power.

Why these nerdy arguments matter is more easily discussed in the next section on ex post facto laws.

Ex post facto laws

For a full discussion on ex post facto laws, check out an earlier post. The relevant issue here is that an ex post facto law “increases the punishment for crimes already committed.”

So, the question is: Is the part of SORNA that includes people who were convicted of sex offenses prior to its enactment an ex post facto law? Does SORNA “increase the punishment for crimes already committed”? What do you think?

As states have enacted and enforced their own SORNA variations, and the national registry has expanded, the ex post facto issues continue to appear in both state and federal courts. The pivotal questions are whether the law is civil or criminal in nature and whether being put on a sex offender registry is punitive or not. 

To rephrase: 

  1. Is the law requiring the registration of people convicted of certain sex-related offenses intended by the legislature to be civil or criminal in nature? 

  2. Does being required by law to put one’s name on a publicly viewable sex offender list for anywhere between 15 years to life constitute punishment? 

  3. In particular, for those people who were convicted prior to the enactment of SORNA or the states’ version of such a law: Does the retroactive registry requirement increase the punishment for crimes already committed?

(For frame of reference, SCOTUS has repeatedly held that the deportation of a non-citizen for a prior criminal conviction is civil in nature. Deportation is not considered an increase in punishment for a crime already committed.8 How does that sit with you?)

In Smith v. Doe, 538 U.S. 84 (U.S. 2003), a 6-to-3 SCOTUS decision, the majority, penned by Justice Kennedy, held that Alaska’s sex offender registry law, as applied to those convicted prior to its passage, was not an ex post facto law because it was not punitive in nature. The Alaska law “is an incident of the State’s power to protect the health and safety of its citizens, [and] it will be considered as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment.”9

Further, the majority argued:

The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.10

In other words, the state is allowed to create laws that protect the health and safety of its citizens, including a regulatory scheme that requires something like registration, even if it happens to have the side effect of public humiliation.

Additionally, the majority urged that the person convicted of a crime was already humiliated by his/her conviction, and the registry was simply a part of that process, not a separate and greater punishment. Thus, the Court determined the law to be constitutional and not a violation of the ex post facto prohibition. 

In contrast, Justices Stevens and Ginsburg argued:

  • a publicly viewable registry is a form of the public humiliation and shaming practices deployed historically in the U.S. because the person’s photograph, address, phone number, and other personal information is available for all to see; 

  • being labeled so publicly makes it incredibly difficult for those on the list to get jobs, find housing, and live without fear of citizen retribution;

  • people are required to register based on the offense for which they were convicted, not based on any kind of medical diagnosis or individual determination of dangerousness; and,

  • once on the registry, people have no recourse for being removed from the registry if and when they can demonstrate treatment and rehabilitation.11 

Therefore, both Stevens and Ginsburg conclude that the law is “ambiguous in intent and punitive in effect,” meaning that it could be perceived as a criminal law and does increase the punishment of people previously convicted of sex offenses. Therefore, that section of SORNA violates the prohibition against ex post facto laws.12 

Because these were dissenting views, the majority’s holding that Alaska’s SORNA law is constitutional remains the law of the land.

However, as SORNA laws proliferate and become even more restrictive throughout the states, state courts and some federal district courts are beginning to reconsider the constitutionality of these laws.13 Some reliable sources report that over 900,000 people are now in the national sex offender registry database, with state-by-state registry numbers also skyrocketing.14 

Remember, the federal SORNA provides only a baseline that states must meet, states can and often do choose to implement significantly more restrictive and punitive registry and notification laws.

As of March 2019, “[e]ight state supreme courts in recent years have held that the retroactive application of their sex offender registration and notification laws violate their respective state constitutions.”15 In 2020 and 2021, the Michigan Supreme Court and Maine Supreme Court (to name only two) held that retroactive applications of state SORNA laws were, indeed, violations of the state constitutions' prohibition against ex post facto laws. 

As with everything else we have covered so far, this body of law is constantly changing as the courts, legislatures, law enforcement agencies, and publics interact, engage, and advocate. 

In Conclusion

When we think about Congress’s legislative power, SORNA and laws like it have a profound impact on millions of individuals, families, and communities. For each other and for our communities, it is important that we critically engage with our legislators and criminal laws to ask:

  • Are we solving the right problem or addressing the right issue?

  • Is this helping or hurting?

  • If it’s hurting, who are we hurting?

  • What people and communities are experiencing the disparate impact of these laws and their enforcement?

  • Whose needs go unaddressed?

  • How do I feel about the government and its agents enacting and enforcing this law in my name (meaning that legislators use the winning of an election as a perceive mandate to enact laws on behalf of their constituents: us!)?

  • Create your own question . . .

If we don’t like the answers we get, then it’s time to change.

The next series of newsletters will be addressing executive power and I will touch on immigration to explain how and why we are where we are.

As ever, please let me know what you think and spread the word!

With gratitude,

Amy

1

The provision states:

The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter . . . and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).” Subsection (d), in other words, focuses on individuals convicted of a sex offense before SORNA’s enactment—a group we will call pre-Act offenders. 

Gundy v. United States, 139 S. Ct. 2116 (2019), located at: https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf

2

Ibid.

3

Under that delegated authority, the Attorney General issued an interim rule in February 2007, specifying that SORNA’s registration requirements apply in full to “sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 72 Fed. Reg. 8897. The final rule, issued in December 2010, reiterated that SORNA applies to all pre-Act offenders. 75 Fed. Reg. 81850. That rule has remained the same to this day.

Ibid.

4

Lydia Wheeler, “Sex offender registry sparks Supreme Court debate over congressional powers,” The Hill, located at: https://thehill.com/regulation/court-battles/409480-sex-offender-registry-sparks-supreme-court-debate-over-congressional?rl=1

5

Reynolds v. United States, 565 U.S. 432 (2012), located at: https://supreme.justia.com/cases/federal/us/565/432/

6

Gundy v. United States, 139 S. Ct. 2116 (2019), located at: https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf

7

Ibid.

9

Smith v. Doe, 538 U.S. 84 (2003), located at: https://www.oyez.org/cases/2002/01-729

10

Ibid.

11

Ibid., dissenting opinions of Justice Stevens and Justice Ginsburg.

12

Smith v. Doe, 538 U.S. 84 (2003) (Ginsburg, J. dissenting).

13

https://mitchellhamline.edu/sex-offense-litigation-policy/?s=ex+post+facto; https://theappeal.org/court-holds-that-retroactive-extension-of-sex-offender-registration-is-punitive-be1e8efad092/

14

Steven Yoder, “Why Sex Offender Registries Keep Growing Even As Sexual Violence Rates Fall,” The Appeal, located at: https://theappeal.org/why-sex-offender-registries-keep-growing-even-as-sexual-violence-rates-fall/

15

“Sex Offender Registration and Notification In the United States Current Case Law and Issues — March 2019: Retroactive Application & Ex Post Facto Considerations,” Department of Justice, SMART Office, located at: https://smart.ojp.gov/sites/g/files/xyckuh231/files/media/document/5-retroactive-application_0.pdf

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