“State secrets privilege, as the doctrine is known, has a long and sketchy history, evolving from bad official behavior after a 1948 plane crash that killed several civilian observers. When the observers’ widows sued in United States v. Reynolds, the government argued that information about the plane was too super-secret to be revealed in court. The Supreme Court agreed that some things are too sensitive to be used in legal proceedings and gave the executive branch a free pass to invoke the phrase “national security” as a shield against accountability.
“Decades later, declassified documents revealed that the flight had no national security import at all and that Air Force officials had perjured themselves when they told the Court otherwise,” Reason’s Matt Welch observed in 2006. “In the meantime, the ruling provided the framework for executive privilege, which the Bush administration has been trying to expand.”
Not just the Bush administration appreciated state secrets privilege, of course; all presidents enjoy the ability to act without consequence. That’s how we end up all these years later with the question of whether the state secrets privilege is so broad that it can protect federal agents from the need to square spying on Americans with the protections afforded by the Constitution.”
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“the government isn’t arguing just that some information is too sensitive for the public, but also that it should be kept from judges’ eyes. That would leave people with no recourse at all when federal agencies invoke the magic phrase “national security” to block lawsuits alleging rights violations.”
“Almost immediately after President Joe Biden took office, his administration started to roll back his predecessor Donald Trump’s “Remain in Mexico” policy, which required many asylum seekers who arrive at the United States’ southern border to stay in Mexico while they await a hearing on their asylum claim.”
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” however, a Trump-appointed judge to a federal court in Texas effectively ordered the federal government to reinstate this Trump-era policy — which is officially known as the Migrant Protection Protocols (MPP) — permanently. Judge Matthew Kacsmaryk’s opinion in Texas v. Biden makes the implausible argument that a federal immigration law enacted by Congress in 1996 makes the Remain in Mexico policy mandatory, unless the federal government detains every asylum seeker who is not sent back to Mexico.
Trump’s Remain in Mexico policy was not implemented until early 2019. So the upshot of Kacsmaryk’s opinion is that the federal government was in violation of this 1996 statute for half of the Clinton administration, the entire George W. Bush administration, the entire Obama administration, and most of the Trump administration.
In reality, that 1996 federal law is part of a web of statutes and constitutional doctrines giving immigration officials multiple options when an asylum seeker arrives at the US-Mexico border. One provision of federal immigration law provides that most of these asylum seekers “shall be detained” while they await a hearing.”
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“Kacsmaryk’s decision, moreover, is expected to be appealed to the Fifth Circuit Court of Appeals, one of the most conservative courts in the country — and then potentially to a Supreme Court where Republican appointees have a 6-3 supermajority.
So, while Kacsmaryk’s opinion is wrong on the law, there is no guarantee that it will be reversed by a higher court.”
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“Kacsmaryk is one of many Trump appointees to the federal bench who appears to have been chosen largely due to his unusually conservative political views. Prior to becoming a judge, Kacsmaryk was deputy general counsel for the First Liberty Institute, a firm that largely litigates on behalf of causes of the religious right. In his past writings, he labeled being transgender a “mental disorder” and claimed that gay people are “disordered.”
As recently as 2015, Kacsmaryk published an article denouncing a “Sexual Revolution” that “sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”
He’s also the third conservative federal judge in Texas to strike down an immigration policy supported by the Biden administration.”
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“The Supreme Court’s decisions are supposed to give federal officials a great deal of discretion to shape immigration policy — and to afford mercy to individual immigrants. As the Court explained in Arizona v. United States (2012) “a principal feature of the removal system is the broad discretion exercised by immigration officials.”
But judges like Kacsmaryk, Tipton, and Hanen appear eager to strip the Biden administration of that discretion. With a 6-3 conservative Supreme Court overseeing the judiciary, these judges may very well get away with it.”
“It appears likely, moreover, that the GOP-controlled judiciary will be a thorn in Biden’s side. Trump-appointed Justice Neil Gorsuch, for example, is already laying the groundwork to strip federal agencies of much of their power to regulate after Biden takes office, and Gorsuch almost certainly has the five votes he needs to make this happen.
The Republican Party dominates the federal judiciary in no small part due to six years of work by outgoing Senate Majority Leader Mitch McConnell. When Justice Antonin Scalia died nearly a year before President Barack Obama left office, McConnell announced almost immediately that Obama’s Supreme Court nominee would get the cold shoulder from a Republican Senate. When Justice Ruth Bader Ginsburg died shortly before the 2020 election, McConnell ensured that her conservative replacement, Amy Coney Barrett, would be confirmed just days before the nation voted to cast Trump out of office.
During the final two years of Obama’s presidency — the only two years of his presidency that Republicans controlled the Senate — McConnell imposed a near-total blockade on new appointments to the federal courts of appeals (often referred to as “circuit” judges). The result was that now-outgoing President Donald Trump got to fill nearly all of the judicial vacancies that came open during his presidency, plus nearly all of the appellate court seats Obama should have filled in his final two years.
Although Obama served for twice as long as Trump, there are currently 53 active circuit judges appointed by Trump and only 50 appointed by Obama. (Obama’s judicial confirmations also got off to a fairly slow start, though they picked up considerably once the Senate changed its rules in 2013 to make it easier to confirm judges.)”
“Hand-picked by politicians, some magistrates were found to have accepted bribes, stolen money, flubbed trials, trampled over constitutional protections and mishandled even the most basic elements of criminal cases.
And though they handle hundreds of thousands of misdemeanor and civil cases every year, roughly three-quarters of the state’s magistrates have never practiced law in their life, the investigation found.”
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“The investigation found that a flaw in the application process removed a requirement for magistrates to disclose if they have been disciplined for misconduct by the state’s judicial watchdog. A dozen sitting judges with prior ethics offenses skated through their last reappointment, no questions asked, the investigation found.”
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“Magistrates are the busiest judges in the state. They sit in judgment on cases involving petty thefts, drunken driving, domestic violence, assaults and disorderly conduct. They also issue arrest warrants, set bail, preside over trials and conduct preliminary hearings to assess if there is sufficient probable cause to support felony charges such as murder, rape and robbery.
Yet the news organizations’ investigation found that most magistrates are not lawyers and could not represent someone in a court of law — yet they preside over them.
Davis has stressed that the state must bolster its legal qualifications for all magistrates. Though he has not proposed details, he would at least increase their mandatory legal training from the current minimum of 57 1/2 hours.
By comparison, South Carolina is stricter with its barbers: Their training school mandates 1,500 hours.”