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  • What If Biden Defies Sup Ct Order Upholding Remain in Mexico?

What If Biden Defies Sup Ct Order Upholding Remain in Mexico?

William L. Kovacs

May 2022

What If Biden Defies Sup Ct Order Upholding Remain in Mexico?

President Biden has been evading several court orders to implement the nation’s “Remain in Mexico” policy without consequence other than Republicans complaining about it on cable talk programs. Biden’s policy decisions result in an open southern border that allows millions of immigrants to enter our country illegally, including drug smugglers, sex traffickers, and terrorists. The dispute is now before the U.S. Supreme Court. However, the potentially traumatic constitutional part of the controversy is – what if the Supreme Court upholds the “Remain in Mexico” policy and the Biden administration refuses to enforce it?

Since the court is without enforcement authority and Congress lacks the courage to follow the Constitution, the simple answer may be there will be no political consequence to Biden until the 2024 election. But what about the many Americans injured by the millions of illegal immigrants trespassing on farms causing damage to land and animals, and the assaults and even murders of Americans, not to mention the costs of migrant care imposed on hundreds of small towns?

A similar situation occurred in 1832 when President Andrew Jackson was outraged over a Supreme Court decision striking down a Georgia law regulating the entry of white people on Native American lands. Jackson stated – “John Marshall has made the decision; now let him enforce it.” Jackson viewed the Supreme Court’s decision as interfering with his power to remove Indians from their land. Jackson’s contempt for the rule of law eventually led to the horrifying Trail of Tears.

Today, another conflict over the regulation of people is before the Supreme Court. The case, Biden v. Texas, addresses whether the Biden administration must enforce the Trump era “Remain in Mexico” policy that requires non-Mexican migrants to wait in Mexico until the U.S. can adjudicate their asylum claims.

On April 26, 2022, Texas argued that under the clear language of the immigration statute, the Biden administration has only three options for dealing with illegal immigrants: (1) decide on a case-by-case basis to allow certain immigrants to stay since they offer benefits to the U.S.; (2) return the immigrant to Mexico, or (3) place the immigrant in U.S. detention centers.

The Biden administration argues it is impossible to detain the millions of illegal immigrants since Congress only provided funding to detain 34,000 immigrants. Yet, Biden’s 2023 budget seeks to reduce that number by 25%. Moreover, since the “Return to Mexico” policy involves foreign policy with another country, Biden asserts the court cannot interfere with the President’s power over foreign affairs. Operating within these restrictions, the administration opted to release most immigrants into the U.S. Unfortunately, Congress restricted its authority to case-by-case determinations. The administration has no statutory power to release immigrants en masse.

An open southern border seems to be as crucial to president Biden as acquiring Indian lands was to president Jackson. What happens if the Supreme Court orders the Biden administration to enforce the “Remain in Mexico” policy and Biden tells the court, “You made the decision; now you enforce it?”

There are very few workable options to make Biden enforce the law.

Congress could appropriate hundreds of billions of dollars to detain the millions of illegal immigrants until their asylum dates. Is it unlikely that Congress would appropriate such amounts since the Biden administration has refused to complete the most straightforward task, building the border wall.

A Republican House of Representatives in 2023 could impeach Biden; however, it is unlikely the Senate will have 67 votes to convict him. Besides being a footnote in history, the impeachment will not result in any serious border enforcement.

Congress could cut off funds to the Department of Homeland Security (“DHS”). Still, Biden would veto such an effort, and it is unlikely that Congress can override the President’s veto.

Conversely, one House of Congress could refuse to appropriate any funds for DHS operations. This situation is unlikely since it would eliminate all border protection.

A real politick option would be for one House of Congress to refuse to provide any funding for an agency desperately desired by Biden’s allies, such as the Department of Education. Withholding these funds might bring the Biden administration to the negotiating table to ensure his most significant contributor, the teachers union, continues its control over American education. It is unlikely, however; that the Republicans have the courage to enter such a high-stakes negotiation.

A more practical option might be for citizens injured by the administration’s actions to seek compensation under section1985 (c) of the Civil Rights Act of 1871. They would allege that the president and the Border Patrol conspired to act illegally and such conduct deprived them of their right to equal protection of the law.

Federal immigration law requires the President and the Border Patrol to prevent persons and goods from illegally entering the U.S. and harming the nation’s security. Since the start of the Biden administration, citizens have complained of the harm caused by its failure to secure the border, a violation of Biden’s constitutional duty to “Take Care” that the laws be faithfully executed.

The federal government’s defenses of sovereign immunity, (the government can do no wrong), and that it operates as one entity so there cannot be a conspiracy, usually prevail. In the civil rights context, the situation is different when the government deprives citizens of their constitutional rights. Simply, the courts have recognized some limits on immunity from government corruption.

In a civil rights context, “… when execution of a government’s policy or custom, whether the policy is made by lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury,” the government as an entity is responsible for the actions. Suppose Biden refuses to obey the court’s order, and the Border Patrol follows Biden’s orders. In that case, the two entities are conspiring to violate U.S. policy. The conspiracy deprives those harmed of their right to the equal protection of the law; e.g., intentionally allowing into the U.S. drug dealers, sex traffickers, and terrorists who harm Americans.

For far too long, citizens have lacked remedies when injured by the joint illegal conduct of the Executive and the agencies following its directive. Other examples help illustrate this point: the IRS targeting the tax returns of conservative groups and the FBI filing false FISA applications to spy on citizens. The general remedy of injunctive relief is usually a day late and of no compensatory value. Federal apologies for violating the civil rights of citizens are cheap. Seeking monetary damages under the Civil Rights laws against the federal agencies that intentionally implement illegal government policy may be the best mechanism for citizens to uncover the scope of any unlawful activity and be compensated for their injury.

William L. Kovacs is the author of Reform the Kakistocracy, the winner of the 2021 Independent Press Award for Political/Social Change. Mr. Kovacs has served as senior vice-president for the US Chamber of Commerce, chief counsel to a congressional committee, and a partner in law DC law firms.

This article was first published in The Thinking Conservative, https://www.thethinkingconservative.com/what-if-biden-defies-supreme-court-order-upholding-remain-in-mexico/



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  • Denial of Ballot Access: In Search of Meaningful Remedies to the Deprivation of Constitutional Rights

Denial of Ballot Access: In Search of Meaningful Remedies to the Deprivation of Constitutional Rights

William L. Kovacs

December 2019

Denial of Ballot Access: In Search of Meaningful Remedies to the Deprivation of Constitutional Rights

Part I of this series describes the two major political parties as possessing monopoly control of our government. Part II discusses the tactics used by states and the two major parties to maintain such control. This article explores how to break such control.

Third-parties have fought to obtain ballot access for over a century. It has been a battle over challenges to petition signatures, and arbitrary filing deadlines among many roadblocks. Political third-parties sue states; arguing their laws deprive them of their constitutional rights to speech, association, due process and equal protection of law. The remedy sought is injunctive relief (an order to change the law or place third-parties on the ballot).

The flaw in the third-party challenge strategy is that injunctive relief is ephemeral. As soon as injunctive relief is obtained the state can change the rules for ballot access without any consequences for continuing to deny third-parties their constitutional rights.

For the third-parties to achieve a lasting constitutional victory, they must develop legal theories that provide more than injunctive relief. They must develop theories that allow for the recovery of damages and attorney’s fees for the harm caused. Ballot challenges are costly. Several third-parties in Texas recently sued the state alleging discriminatory ballot access, estimating the cost of securing the 83,717 valid signatures exceeds $600,000. But the real harm is not being afforded the right to stand for election and be heard.

Finding remedies beyond injunctive relief is difficult since states and their officials are immune from damage claims in state courts.

The most plausible remedy for addressing such conduct appears to be 42 U.S.C. Sec. 1983 (“Sec. 1983”),  the Civil Rights Act of 1871. It provides a remedy to persons denied their civil rights by persons acting under color of law. A federal remedy was necessary since state sovereign immunity prohibited injured persons from reaching conduct of state officials who denied them their constitutional rights.

Professor Jack M. Beerman makes the salient point, “The likelihood that no state law claim exists is greatest when state law itself is alleged to violate the Federal Constitution, but it also exists when state official conduct unguided by state law is alleged to be unconstitutional.” Sec. 1983 provides federal remedies when state law is inadequate or where a state remedy is not available in practice for the deprivation of constitutional rights. Both situations exist in ballot access cases.

Initially Sec. 1983 lawsuits were against defendants whose wrongdoing was clothed with the authority of state law.  Over time however, the courts expanded Sec. 1983 to reach constitutional violations conducted jointly by a state employee and private party; actions in which the state assigned a public function to a private party, e.g. education, and actions in which a private party performs an exclusively public function, i.e. administering primary elections.

The question to be resolved is whether Sec. 1983, can be applied to hold liable, state officials and private parties, acting under color of law, in ballot access cases, for conduct that denies the constitutional rights of third-parties or candidates?

The U.S. Supreme Court has not addressed the applicability of Sec. 1983 in ballot access challenges. It has however, held that the conduct of private parties in conducting a primary election is a government function, subject to constitutional safeguards.

Arkansas is an illustration of facts in need of a Sec 1983 remedy.  Between 1977 and today, Arkansas enacted several laws requiring third-parties secure petition signatures amounting to 3% of the last gubernatorial vote, combined with a short filing deadline. The statute was declared unconstitutional several times. Each time the legislature changed part of the law hoping to satisfy the court. Each new law was enjoined.

If the legislature lowered the number of signatures needed, it shortened the time for filing them.

In February 2019, the Arkansas legislature voted to repeal the 2007 law that reduced the signatures needed to 10,000 and reinstated the 3% requirement (26,746 valid signatures) that had been twice declared unconstitutional. It also required all signatures be collected in 90 days. On August 1, 2019, a District Court enjoined the 2019 law finding Arkansas’ compelling state interest of an overcrowded ballot to be without evidence since only the two major parties and the Libertarian party would be on the ballot.

Since a state only functions through individuals, the persons who manipulate laws to deprive third-parties of their constitutional rights, are the persons who should be subject to a Sec. 1983 action.

As to the role of the Republicans and Democratic parties in ballot access cases, the facts need to be collected. But if history is a guide, finding liable parties is doable. In 2004, Pennsylvania’s Democratic party, not only challenged the signatures on Ralph Nader’s third-party petition, it illegally used “a veritable army,” of state employees to challenge the signatures, according to a subsequent indictment.

The Sneaky Silencing of Third-Party Politicians, examines how the two major parties eliminate third-party competitors. It found in the 2004 presidential election after Nader filed his ballot petitions in fifty states, the Democratic party filed  complaints in 19 states “with one goal in mind: getting Nader’s name removed from the ballot…As a result, Nader was off the ballot in Pennsylvania, Oregon, Missouri, Virginia and several other states.”

In Oregon, the Democrats packed the third-party’s convention hall with Democrats to prevent Nader’s supporters from getting into the hall and nominating him. Subsequently, when Nader took the alternative petition route, Democratic lawyers threatened petition circulators with felony prosecution and large fines.

Signature challenges by the two major parties take place even at the local level to keep third-party candidates off the ballot. Could this be the reason the two major parties’ control 99.96% of all elected positions?

Action: As recommended, a joint effort needs to gather the facts to support a Sec.1983 lawsuit, especially the names of the individuals who led the unconstitutional activities.

If successful these lawsuits will change the nature of ballot access law from achieving ephemeral relief to securing easier access.

This article was first published in The Libertarian Republic, September 13, 2109