Category: Uncategorized

I Had Hoped For Better, From This Inexperienced Young Judge. But He Was A Recent Trump Appointee… And, In Texas, Afterall…

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This TRO is very near to the most egregiously wrong decision — on well-settled black letter law… as I’ve ever seen.

Soon enough, it will be set aside by the Fifth Circuit, if Tipton doesn’t in fact over-rule himself, when the injunction hearing occurs in a few days’ time. I may have more — but I may not. It is… so devoid of any cogent references to, or explanations of actual FEDERAL immigration law precedents, as to be… jaw slacking — and yet, it finds a 14 day nationwide TRO should issue, effectively giving Texas a veto right over federal law enforcement — one California was never even offered, by Donald Trump and Kenny Cuccinelli.

Over FEDERAL laws?! Herein, madness very soon lies:

…Finally, the Court ORDERS the parties to propose a briefing schedule no later than Thursday, January 28, 2021 at 12:00 p.m. with respect Texas’s Request for Preliminary Injunction in its Complaint. The parties should also address whether expedited discovery is necessary and the contours and scheduling for same….

Were I a betting man, I’d guess this young judge actually… wants to be overruled, on the law — as a badge of honor, when next he sees the Ex-President. And over-ruled, he will… certainly be. Onward — we will prevail, without serious doubt, here.

नमस्ते

This Makes Me Smile — Ear To Ear…

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Many will recall that about three and a half years ago, Baby-T and Steve Mnuchin put a halt to the finished Obama Administration plans to remove Andrew Jackson, and replace him with… Harriet Tubman on the US currency — the $20 bill. [My December 2018 backgrounder may be found here.]

In the mean time, as imaged at above left, many of us took matters into our own hands, and offered our “improvement“… to the existing $20’s in circulation. Here’s the latest bit:

…The Biden administration is looking at ways to speed up the process of putting Harriet Tubman’s image on the $20 bill after the effort stalled under the Trump administration.

“The Treasury Department is taking steps to resume efforts to put Harriett Tubman on the front of the $20 notes,” White House press secretary Jen Psaki said during a briefing with reporters.

“It’s important that our notes, our money… reflect the history and diversity of our country, and Harriet Tubman’s image gracing the new $20 note would certainly reflect that,” she added. “So we’re exploring ways to speed up that effort….”

Karma they say — is a wheel… as that slave owning ex-President is replaced — or cancelled, if you prefer… with/by… the arguable “lead conductor” of the Underground Railroad. Sweet. Very sweet.

Semi-related side note — do see the new Regina King directorial debut — called “One Night In Miami” available now, on Amazon Prime — from which this Leslie Odom, Jr. artistry (as Sam Cooke, in a fictional moment in time) emanates:

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[U, X 2 — In Court, This Morning Abbott And Texas AG “Doubled Down” On Tucker’s Lies & Rumors] Texas Hearing Concluded. No TRO Today. Biden Admin. Full Response Linked Below.

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UPDATED, @ 5 PM EST: See this email chain, just filed by DoJ, per Judge Tipton’s order of this morning. Read it in chron order. You will see that involved “higher up” DHS and ICE officials immediately countermanded a woefully-errant (malevolent officer’s?) misreading of Mr. Biden’s Friday directives. Tucker Carlson intentionally misrepresented the gravamen of this email chain. No surprise. But for the Governor of Texas, and the AG, to make an emergency Sunday filing based on a Tucker Carlson rumor piece. . . is well-nigh. . . unprofessional. Then to double down on it, when the DoJ said in court “that’s not what the emails say“. . . borders on misconduct.

But now you know. End update.

Unsurprisingly, Texas lost its hearing this morning — whole hog. No TRO.

USDC Judge Tipton is taking the matter back under advisement, after learning (unsurprisingly) that the Texas Sunday claims are based on lies, from Trucker Carlson, and no one else.

Here is the more comprehensive 23 page Biden Administration response — and a bit that conclusively establishes that the claims of Texas Gov. Abbott, and AG Paxson are… DOA:

…Texas asserts that DHS contracted away the sovereign’s right to decide federal immigration policy by imposing a 180-day stay on federal action, pending Texas’s response to that action. Such a promise to abstain from taking a wide range of immigration-related actions until a State has exercised a 180-day comment power lies beyond the power of contract. The federal government has plenary power over the enforcement of federal immigration law and an outgoing administration cannot contract away that power for an incoming administration. See Biodiversity Assocs. v. Cables, 357 F.3d 1152, 1172 (10th Cir. 2004) (“The executive branch does not have authority to contract away the enumerated constitutional powers of Congress or its own successors….”); see also United States Trust Co. v. New Jersey, 431 U.S. 1, 23 (1977) (“[T]he Contract Clause does not require a State to adhere to a contract that surrenders an essential attribute of its sovereignty”); Stone v. Mississippi, 101 U.S. 814, 817 (1880) (“[T]he legislature cannot bargain away the police power of a State.”)….

Further, Texas fails to identify any permissible statutory authority that contemplates DHS entering into a contract to grant states the power to delay and review agency policy decisions, and for good reason. It runs afoul of the non-delegation doctrine. U.S. Telecom Ass’n v. F.C.C., 359 F.3d 554, 565 (D.C. Cir. 2004) (“subdelegations to outside parties are assumed to be improper absent an affirmative showing of congressional authorization’). Indeed, all applicable statutes preserve federal prerogatives. For example, the Homeland Security Act vests the Secretary with responsibility for all functions of the Department, and provides that she may delegate those functions only to “any officer, employee, or organizational unit of the Department.” 6 U.S.C. § 112(b)(1).

Delegations of functions to Texas, to include the power to delay DHS policies related to enforcement of federal immigration law, as the purported contract appears to provide by vesting Texas with a 180-day period to comment before an agency decision takes effect, violate this statutory limitation. The INA sets forth numerous provisions governing federal-state relations with respect to the immigration laws, see, e.g., 8 U.S.C. §§ 1103(a)(10), 1257(g), but none contemplates such extraordinary MOUs. Had Congress intended to authorize such extraordinary agreements, it certainly would have done so expressly with unmistakable clarity. See, e.g., Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). The MOU is therefore unauthorized by statute….

This is not even remotely… funny. But I am unbothered, since all it is doing is wasting court time down in Texas — and making Abbott a laughing-stock of the competent State Governors’ associations. Cheers, bub, you are… 21 flavors — check that — all kinds… of stupid.

नमस्ते

UPDATED: Now, a few hours later, Judge Tipton has asked for a bolus of government documents, none of which will change the fact that Texas lacks standing to file this specious suit. But for what it is worth, the judge will have a record of what it is the government has averred to be true — all of which refutes irresponsible rumors (repeated in official filed litigation documents, by Texas officials) broadcast as EDITORIAL OPINIONS, by Tucker Carlson on Fox:

“…Minute Entry for proceedings held before Judge Drew B Tipton.

ZOOM HEARING held on 1/25/2021. Regarding Advisory (Dkt. 6).

The Court instructs Defense Counsel to submit a copy of the email referenced in the Advisory (Dkt. 6) and to preserve any evidence, emails, texts, instant messages or any other communication from January 22, 2021 forward related to the release of individuals in custody that were subject to an Order of Removal.

Defense Counsel is further instructed to verify and advise the Court whether the only individuals in custody that were subject to an Order of Removal that have been released since January 22, 2021 were pursuant to the California litigation referenced in (Dkt. 9).

Defense Counsel is further instructed to advise the Court of the number of individuals in custody that were subject to an Order of Removal who have been released from custody in the United States since Friday January 22, 2021 and the locations from which they were released.

Appearances: Adam Kirschner. William Thomas Thompson, Patrick K Sweeten, Daniel David Hu….”

Now you know — but this matter is going to be dumped — without a doubt.

[U] BREAKING: Judge Tipton’s USDC Web-Conference Call, On Gov. Abbott’s Nonsense “Dead Hand” Agreement / Cuccinelli, Ex-DHS: Tomorrow At 8:00 AM In Texas.

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UPDATED @ 9:30 AM EST Monday: The entire Texas position hinged on a false report from Tucker Carlson. The few people released over the weekend, had ALREADY been ordered released under a federal class action in California (as the DoJ avers this morning)… called Fraihat, 445 F. Supp. 3d 709 (C.D. Cal. 2020). These class members were ordered released weeks ago (to combat Baby-T’s prior lawlessness — while he was still in office), due to COVID-19 mitigation protocols. In sum, every word of the Sunday Texas advisement is… a lie. I’ll have more, later this morning — on the DoJ’s more general response filed this morning, and the hearing, still ongoing — but Judge Tipton will grant no TRO on this record. End update.

Here are the details.

I’ll likely live blog it, as the State of Texas has filed a largely nonsense “advisement” — doing little more than quoting MSM news reports (and then lawlessly trying to shift the burden of proof to the Biden Administration, to disprove the MSM reporting Texas quotes), to the effect that ICE detainees are simply being released from ICE facilities — inside the Longhorn State. Of course, the proponent of the TRO, here the Governor of Texas, always bears the burden of proving his irreparable harm, and his entitlement to equitable relief.

Abbott is laughably deficient on those points here.

I suspect the able judge will also ask Paxson’s people to explain how it is that they could ever surmount the sovereign immunity and standing questions.

…Conference set for 1/25/2021 at 8:00 AM to be held by Zoom.

https://www.zoomgov.com/j/1610093418

pwd=SWY3VnQ4NnlkOE1nbkJOQ3M3VWpqQT09

Dial by your location +1 669 254 5252 US (San Jose) +1 646 828 7666 US (New York)

Meeting ID: 161 009 3418 Passcode: 714482Per L.R. 83.7

Except by leave of the presiding judge, no photo- or electro-mechanical means of recordation or transmission of court proceedings is permitted….

Onward — this ought to be… hilarious. Do see the ACLU brief I posted last night. Grinning.

नमस्ते

[U: Nine Bodies Recovered] Eleven Gold Miners In China Are Rescued; Ten Still Unaccounted For — And Over 580 Dead In 2020 Overall In Chinese Mining Accidents.

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This “eleven rescued” news is good, to be sure — as these miners last saw sunlight, on the morning of January 10, China time. [Updated, on Monday: sadly the other nine bodies have been found. The tenth was documented to have been standing at the “zero” site of the explosion, and thus his remains are… unrecoverable. This is immensely sad — but as I expected would be the case. End of update.]

They’d been under about a half-mile of rock for two solid weeks — without much food, even less clean water. . . in what we call “very bad air“. Sadly, I think it is highly likely that the remaining ten are already dead, and/or their bodies… will never even be recovered, given the severity of the explosion and resulting rib and back collapse. But to be clear, that is solely my experienced conjecture, here — looking at the mine maps, and the source(s) of the explosion(s).

We will hold a very good thought for them, just the same — and for their families. More than most, I do know what it is like to be that deep (or even a mile and a half deep), in a sweltering drift, in hip deep hot water… and yet gasping for the thinly-oxygenated air… under the mineral belt. And I know what it is like to have relatives trapped deep in such a black mine shaft… hoping for a rescue. Here is NPR’s reporting:

…China’s mines are among the most dangerous in the world. In December, 23 miners died after a carbon monoxide leak at a mine in the southwest city of Chongqing. Three months before that, 16 miners died in a similar accident in the city. For all of 2020, China recorded 434 mining accidents and 573 mining-related deaths, according to the country’s National Mine Safety Administration….

This is not a uniquely Chinese failure of safety. Inside the US, OSHA mining regulations were under attack by lobbyists primarily for the dirty coal and oil and gas industries. . . and many of those attacks, at least for the last four years, succeeded. It is time for mine owners who make hundreds of billions, industry wide… to get very serious, globally — about miner safety, and miner retirement pay, and retiree health benefits — when, as it nearly-always does… gray-, or black- lung disease comes a-calling, in their later years.

Onward, as the heaviest bands of snow are now forming, out to the west… rolling down off of those same Rockies I mined deep beneath… smile.

नमस्ते

Mr. Biden’s “100 Day Deportation Halt Order” Has Likely Saved The Life of Alex Francois. This Sunday… Is For… Humanity, Here.

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On Friday, the Wise Latina Justice (who administered the oath of office — to the first woman Veep on a clear, cold Wednesday morning, last) logged an eloquent, clearly correct on the law dissent, to a Supremes’ denial of review. The denial would ordinarily mean (under Baby-T) that Mr. Francois (who has lived here, and worked here, and paid his taxes here — and raised his family here, for nearly a half century) would die shortly, “caged in a sweltering crawlspace” — in some dank prison inside Haiti.

But it is a new day. And I write to thank Justice Sotomayor, even while I rejoice that where we live now — this America, is… Will Shakespeare’s “undiscovered country” — the future, now unfolding. We are living in an unfinished nation, as Amanda Gorman so eloquently reminds us, at right. But it is not as “broken” — as some of us might claim. We see the kindnesses from people of high and low station, nationwide, every day. And Mr. Francois will have his claims heard now — and he will be on an eight year path to full citizenship, likely by late Summer 2021.

To be certain, I am saddened by the likely thousands of asylum seekers and undocumented people Trump and Stephen Miller likely sentenced to similar deaths, by ignoring our long established laws and treaties. But now, that day has ended — for good. We must laud progress, as it is made. Here is the business end, of that fine Friday dissent:

. . .Alex Francois is a 61-year-old Haitian national who came to the United States unlawfully when he was 19 and has lived here ever since. . . .

Francois came to the United States in 1979 to reunite with his father, a Haitian exile who became an American citizen. Francois spent much of his life in New York City, where he worked in construction and raised a family, including six children. Two of his children went on to serve in the U. S. Army, including one who deployed to Afghanistan….

For now, all he asks is the small grace, to which he is legally entitled, of being allowed to remain in the country while he pursues his substantial claims for relief. Because I would grant him that opportunity, I dissent….

So… be like Amanda. Be like Justice Sotomayor. Be like… Sweet Will, and head out — with a smile — into that “undiscovered country” — that unfinished one, still unfolding. Go, help build it. Go.

नमस्ते

Update, On Public “On The Record” Disclosures Of The Wrongs Committed, On Bill Barr’s “Star Chamber” Policing Commission…

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Late on Friday night, the NAACP Legal Defense (once again!) offered ample proof that the team of lawyers representing old Baby-T, and Billy Barr… are incompetent, at best.

We’ve covered this in detail — but here’s a recent backgrounder. The NAACP and the world, at large — have the collective right to see what lawlessness was undertaken by Barr and Trump, in late 2020, “under color of law”. We will soon see it all — as the able USDC Judge Bates, sitting in the Capitol has ordered. The time of big-belly, tiny handed would-be dictators running secret militarized policing “star chambers”… has ended, in the US, as of last Wednesday.

But to be sure, we need to see these papers — to insure that no future would be hard right baby-dictators try this again — here’s the bit:

…[NAACP] LDF’s claim is not raised only against agency actors covered by the APA. Instead, it is also properly raised under the Mandamus Act against Chair Phil Keith, Vice Chair Katharine Sullivan, and the Presidential Commission on Law Enforcement and the Administration of Justice (“Commission”) itself. Moreover, even with respect to LDF’s APA claim, Defendants mistake the law in arguing that the Court’s review should be confined to the “Commission’s establishing documents,” which Defendants inaccurately describe as constituting an “administrative record.” Reply at 16. The establishing documents are merely the result of an agency decision-making process for which no administrative record has been produced. The relevant administrative record here is the record of the
decision-making process that culminated in Defendants’ violation of Section 5(b)(3), which Defendants have not made available to the Court or to LDF. Thus, Defendants’ argument that the Court stay discovery and confine its review to the Commission’s establishing documents should be rejected….

Watching the Salt-N-Pepa docu-drama, out of the corner of my eye, as I type this… and being sadly underwhelmed. I really wanted to like it more. . . but it isn’t ringing in as… genuine to me — having lived through that time. Grinning, just the same… cuz’ snow’s a comin’…. It’s just around the bend:

नमस्ते

Texas Gov. Abbott’s Near Sedition — Eviscerated By ACLU Amicus Brief, This Fine Saturday Morning.

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I’ll not unduly belabor the point — as we intoned last night, there are manifold reasons to toss this garbage. This ACLU of Texas brief has done a great job of making most of my points, albeit in a far more capable fashion, than my quick scribblings of last evening.

And the able fedral district court judge Tipton will toss this, based on the below alone. The ACLU put together a truly devastating “brevity is the soul of wit” sort of reply to Abbott, thus:

…“In order to hale the federal government into a court proceeding, a plaintiff must show that there has been a valid waiver of sovereign immunity.” Lewis v. Hunt, 492 F.3d 565, 570 (5th Cir. 2007). “The absence of such a waiver is a jurisdictional defect.” Id. “A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text… and will not be implied.” Id. (emphasis added) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). “[A]greement… between parties and their counsel is not sufficient to constitute a waiver of sovereign immunity.” Id.

There is no waiver of sovereign immunity for equitable enforcement of a contract with the United States, so this Court cannot entertain Texas’s claims relating to the SAFE agreement. See Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1082 (10th Cir. 2006). As many circuits have held, “the Tucker and Little Tucker Acts ‘impliedly forbid’ federal courts from ordering declaratory or injunctive relief, at least in the form of specific performance, for contract claims against the government.” Id. (collecting cases from the First, Second, Third, Ninth, and D.C. Circuits); see also Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704 (1949) (“There are the strongest reasons of public policy for the rule that such relief cannot be had against the sovereign. The Government as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right.”).

Most critically here, the Fifth Circuit has expressly so held [Ed. Note: the Fifth Circuit sits over this court]. See Alabama Rural Fire Ins. Co. v. Naylor, 530 F.2d 1221, 1229–30 (5th Cir. 1976). As the Circuit explained: “The gravamen of Alabama Rural’s complaint is a claim for breach of contract…. Congress specifically waived sovereign immunity when it established the Court of Claims and vested in that court jurisdiction over actions ex contractu against the United States, but limited that waiver by giving that court jurisdiction only to award damages, deliberately withholding equitable powers from it.” Id. (citation omitted). Thus, the Circuit refused to hold “that the district court had jurisdiction under the [Administrative Procedure Act] to exercise its equitable powers so as in effect to compel the United States to perform the disputed contract.” Id. at 1230. That is precisely what Texas seeks….

There are numerous other reasons that the SAFE agreements are invalid and unenforceable. See generally United States v. Winstar Corp., 518 U.S. 839 (1996) (addressing various doctrines that limit contracts which purport to constraint the future sovereign power of the government). Indeed, approving this agreement would set a deeply problematic precedent. If an outgoing DHS official can sign away the next administration’s policymaking authority for six months, why not for four years? Or eight? If DHS can do so, why not the Environmental Protection Agency, the Department of Energy, and every other federal agency? And if they can contract with Texas, why not with an individual—or the ACLU? Our Constitution directs that presidential elections occur every four years, with the Executive authority transferring shortly thereafter. But in Texas’s view, an outgoing administration need never yield power so long as it finds a willing contractor to lock in its policy preferences….

[Ed. Note: In addition, Texas cannot establish any standing, here.] To have standing, a “plaintiff must establish a ‘personal stake’ in the dispute and that the injury is particularized to him. The injury cannot be one suffered by the citizens at large.” Donelon v. Louisiana Div. of Admin. Law ex rel. Wise, 522 F.3d 564, 566 (5th Cir. 2008) (internal citations omitted)….

See ‘ya, morons. To advance such a patently frivolous claim… is to flirt with sedition. In point of fact, Ken Cuccinelli flirts here with indictable dereliction of sworn federal duties. And Abbott better mind his future filings, lest he be shown to have violated his oaths of office, as to US law that is settled beyond any reasonable dispute.

Out, grinning — as I am honestly… looking forward, to blizzard conditions, by tomorrow afternoon.

नमस्ते

A “Dead Hand, On The Tiller” DHS Agreement: Despicable Texas Gov. Abbott Tried, But Failed To Invalidate Mr. Biden’s Win…

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I expected some truly scorched Earth shenanigans, to be certain. And I expected it, from Texas, particularly. But I didn’t think it would be this transparently… silly (so silly… it was a 1960s folk song!).

Apparently, two days AFTER the January 6th attack on the Capitol, Gov. Abbott convinced the powerless Kenny Cuccinelli, II at DHS (he had overstayed his interim appointment by months) to sign a “dead hand” agreement, with the State of Texas. In it, these morons purport — to bind the federal government, to exclusive, singular consultations with the Governor of the “super duper MAGA” state of Texas, to the detriment of all other states (but most notably, the state of California) BEFORE DHS makes any change to immigration policy. This was signed over two full months after Mr. Biden won, and Baby-T lost the election: January 8, 2021.

Yet here we see a state governor, purporting to take control of a federal agency’s policy changes — when the opposition party is 13 days away from taking control of essentially the entire federal government — wresting that control from the Texas governor’s party — the GOP.

For a moment, let’s ignore the sovereignty interests of states like California and Arizona, that also have a large role in the support and housing of people in the process of being granted asylum. Let’s ignore comity between states, let’s ignore the lack of standing (unless, at a minimum, all similar states are ALSO full parties to the “agreement”); let’s ignore the Supremacy Clause. Let’s ignore the Fourteenth Amendment’s application to ALL of the states — of the “equal protection of law” clauses.

Let’s just ask whether this agreement, and the suit the moron filed, are evidence of actionable. . . sedition. It is absolutely true that by January 8, 2021, Mr. Biden had made clear that he would rescind Trumpian executive orders, now being litigated in California and DC, about which there are at least twelve final decisions declaring Trumpian orders. . . unlawful. All Mr. Biden said was that (essentially) he would return to enforcing the actual law as written, and administered in the Obama Administration.

Seriously, what possible benign motive may be ascribed to an lawsuit by Gov. Abbott to place a dead man at the wheel on this pirate ship, and Cuccinelli / the DHS shlubs to try to subvert federal authority at the borders, by handing it over to a GOP governor? Can you say… sedition? I certainly can.

Congress had already been subjected to a seige — two police officers paid with their lives, in the seige. And, the warbling dead hand — as of the moment it was signed, Trump had only said the seditionists were “very special people” to him, and that he “loved them” as he urged them to go home. The reasonable inference here — is that Gov. Abbott and Cuccinelli tried ham-handedly, vainly… to conduct a coup, at the Texas border, to prevent Mr. Biden from restoring the rule of well-settled black letter US law and treaties, there.

I would laugh — but I will let the able fedral district court judges (even from inside Texas) do the laughing for me — in about 14 elapsed days, when all this is bounced out, on its ear.

नमस्ते

And… Schedule F Classification — A Putative Army Of Federal “Patronage” Workers — Is No More.

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So ends Baby-T’s attempt to build a patronage workers’ army, at the career federal officers’ level.

The truth is, like so many of T’s stupid ideas, he never was able to execute effectively, on them. That has been a silver lining, inside all of his would-be tiny rain clouds.

But still, it is nice to know that Biden/Harris has today shoved a wooden stake through the heart of this one, per NPR:

…President Biden plans to sign an order on Friday that will toss a plan that would have made it easier to fire top career civil servants, and hire political appointees into high-ranking positions — a practice known as “burrowing.”

Former President Trump’s plan to create the “Schedule F” category had been decried by federal unions as an attack on people he called the “Deep State” when it was announced in October. But the Biden White House was quick to cancel the classification, saying it “undermines the foundations of the civil service….”

Okay… it is a perfect late-morning here. Completely… perfect, with fresh sweet Chilean cherries on the menu, fresh OJ, and hot coffee, cream with potica cake. Grinning….

नमस्ते