Immigration Law and In-State Tuition

By Tim Geiger

In 1996, the Illegal Immigration Reform and Immigration Responsibility Act was passed by Congress (IIRIRA).  Section 505 of the IIRIRA restricted granting in-state tuition to undocumented aliens.  Section 505 states in pertinent part,

notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident. 

This provision of the act seems analogous to Plyler v. Doe, where the court struck down a Texas law that required illegal aliens to pay full tuition in order to enroll in school in the Tyler Independent School District.  The court in Plyler noted that education is not a fundamental and that discrimination against illegal aliens alone was not subject to heightened scrutiny.  However, the court seemed to hold that the quasi-fundamental right coupled with the quasi-suspect class were sufficient in conjunction to elevate the standard of review.  Similar to Plyer, section 505 discriminates against illegal alien students  in the realm of education.

However, it seems that the major distinguishing factor between the two cases is that section 505 of the IIRIRA is a federal statute, where congress is afforded extreme if not total discretion to regulate immigration.  

Trial by Jury on Trial: The Power to Nullify?

By Zachary J. Lee

We touched on jury nullification in Criminal Law this semester, and because its support seems to be rooted in the constitutional right to a jury trial, I thought this would be an appropriate forum for exploring the subject. The blogosphere seems to be full of both avid proponents (here and here) and vigorous opposition (which argues directly against this article in Time magazine).

The case we looked at in class concerned a judge’s instructions to the jury that if it found certain facts, it “must” find the defendant guilty. State v. Ragland, 105 N.J. 189 (1986). The defendant argued that the word “must” should have been replaced by the word “may” in order to allow for the jury’s essential power of jury nullification.

Saggy Pants and the Constitution

By Jacqui Craig

This blurp of news provides more comic relief than anything, but the break is a welcomed one amidst studying and exam woes. The principles underlying the article are indeed basic to our Constitution.

In March 2008, nearly three quarters of the population in Riviera Beach approved an ordinance banning saggy pants; an attempt to prevent pants worn so low as to reveal underwear and/or “backside” areas. While the passing of the law is both shocking and humorous, its infringement on basic constitutional rights and underlying implications are not. I was surprised to find Riviera Beach is far from alone in this line of thinking; counties across the nation are considering or have already passed similar laws. A bill proposed in Kentucky, if passed, would fine offenders $1,000 simply for wearing their pants below a specified point, approximately the waistline.

Once baggy pants were officially outlawed in Riviera Beach, a peculiar trend arose. Within just a few months, eleven males were arrested, all of whom were of the same gender and race. Reports from various counties enacting the baggy pants law, and some videos of officers enforcing the ordinance, show officers approaching individuals even when their shirts were covering up the boxer shorts and pants. The arresting officers would raise the shirt and then ticket or arrest the offender. It’s not hard to see a blatant Terry issue here, protecting against unreasonable search and seizure. For further evidence the law may be an attempt at racial profiling, see the individuals arrested in violation of the Riviera Beach ordinance: http://www.thesmokinggun.com/archive/years/2008/0911081baggy1.html.

A New Look at Executive Agreements

By Vanessa Guillermety

Over the past couple months we have studied a number of cases dealing with treaties. This area seems to be at the heart of the interplay of Congress, the Executive and the States. The division of authority in the international agreement process provided by the Constitution seems particular relevant when considering the “requirements for effective foreign policy.” See John F. Murphy. “Treaties and International Agreements Other Than Treaties: Constitutional Allocation of Power and Responsibility Among the President, the House of Representatives, and the Senate” Kansas Law Review (lead article). Reprinted in Appendix L, Commission on the Organization of the Government for the Conduct of Foreign Policy. (1975); http://www.heinonline.org/HOL/Page?collection=journals&handle=hein.journals/ukalr23&id=239.

The Court has been quite willing to enter the dispute when it deals with the rights, if any, a State has in deciding what a particular treaty stands for or when a particular State enacts a law in contradiction to a treaty as evidenced by Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304 (1816) and Missouri v. Holland, 252 U.S 416 (1920). But to the extent of a controversy as to the division of power given to the Executive vis-à-vis Congress to make agreements or treaties should the Court provide some flexibility as to the constitutionality of those actions, allowing the President to make executive agreements although such power is not expressly provided to the Executive in the Constitution? Should the Court simply let the two branches battle it out?

Article I, § 10, cl. 1 denies treaty-making power to the states; Article II, §2, cl. 2 provides the president with the power to make treaties with the “advice and consent of the Senate” and two-thirds of the senators present concur; Article III, § 2, cl. 1 provides the judiciary with jurisdiction over treaties; Article VI, cl. 2. Provides that the Constitution and the laws of the United States as well as all treaties made under the Authority of the United States are the “supreme law of the land”.

There is no expressly given right to the President as to executive agreements or international agreements without the approval of the Senate. Yet, these agreements are made on a daily basis. See Murphy; http://www.heinonline.org/HOL/Page?collection=journals&handle=hein.journals/ukalr23&id=239. Support for their validity is found in the tacit consent of Congress. Dames & Moore v. Regan provides support for this trend or procedure. The Court there relied on the implied congressional approval when it upheld President Regan power to take certain actions in obtaining the release of American hostages from Iran. Dames & Moore v. Regan, 453 U.S. 654 (1981). The controversy there, however, dealt with how the actions of the President affected the interests of an American company abroad. Justice Jackson’s three categories in Youngstown Sheet & Tube Co. v. Sawyer suggest that the President’s actions may be fall within his constitutionally allocated powers depending on whether he acts pursuant to an express authorization, or absence of a congressional grant. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). But his actions may not be constitutionally justified if the President acts in contradiction to the express or implied will of Congress. Id. The decision in Youngstown, however, was made in reference to the President’s power to make laws and dealt with the domestic realm in which Congress arguably has more power. The decision in Dames & Moore suggests Congress through its inertia can provide support for the President’s actions, but what happens when the President makes an agreement in contradiction to Congress’s wishes in the area of international agreements?

The Court has never decided a case between Congress and the Executive, or it has never ruled on “whether an executive agreement can be made against the wishes of Congress.”

The On Going War: Battle Between Security & Civil Liberities

By Braxton Evans

History has a way of repeating itself, is a well known phrase that applies to many areas and aspects of the American experience as a whole and individually.  This phrase is especially true in the area of our continuing political and legal debate in regards to the limits of Presidential power during armed conflicts involving American troops here at home and abroad.  Presidents, Lincoln, FDR, Truman and Bush to name a few, have sometimes found that in that in the prosecution of a war, or an armed conflict it is vital to suspend, or restrict certain civil liberties and to bypass certain process in order to achieve success in the war effort.  Presidents are authorized to exercise certain “War powers”, by Art. II, sec. 2 of the Constitution, but the debate over how for these powers extend and whether or not Presidents’ executive orders have exerted extra-Constitutional power are live controversies.  This conflict over what authority the President has to curtail certain, rights and civil liberties during times of armed conflict, in the use of his war powers have been raging since the end of the Civil war.

Souter’s Shadow

By Braxton Evans

According to various news outlets, today Supreme Court Justice David Souter has announced to the Obama administration that he will be leaving the Court at the conclusion of the June session.  Souter has served on the Court since 1990, after being appointed by President George Bush (Bush 41).  http://www.oyez.org/justices/david_h_souter.

The announcement, although surprising, has been meet with little fanfare because it is believed that Justice Souter’s replacement will not effect the composition of the Court.  President Obama, a Democrat, will be expected to appoint another liberal Justice to replace Souter which would maintain the current balance on the Court.   This would theoretically maintain current Supreme Court Jurisprudence in crucial areas of Substantive Due process as in regards to Privacy (See Planned Parenthood of Southwestern Pa v. Casey, 505 U.S. 833 (1992)), Equal Protection under the 14th Amendment (See Grutter v.  Bollinger, 539 U.S. 306 (2003), and The War on Terrorism (See Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).  But this is not assured.

The Yankees suck (at protecting the First Amendment)!

by Zachary J. Lee

According to a lawsuit filed in April against the New York Yankees and the City of New York, Bradford Campeau-Laurion was forced out of a Yankees game on August 26 last year when he attempted to leave his seat during a rendition of “God Bless America.” The lawsuit alleges that an NYPD police office, who was being paid by the Yankees, grabbed Campeau-Laurion’s arm and twisted it behind him before Campeau-Laurion could take a step. Two officers then escorted Campeau-Laurion down a series of ramps and out of Yankee Stadium. Campeau-Laurion also alleges that as he was being led out of the stadium, one of the officers said, “ Get the hell out of my country if you don’t like it.” An NYPD spokesperson relayed a substantially different version of the facts, saying that Campeau-Laurion was thrown out for “standing on his seat cursing, using inappropriate language and acting in a disrespectful manner while reeking of alcohol.” Factual dispute aside, those familiar with baseball may be interested to know that on August 26, the Yankees were playing the Boston Red Sox. For those unfamiliar with baseball, the rivalry between the two teams has produced its share of behavior “reeking of alcohol.”

Because of the sensitive issues relevant to this case, the Red Sox/Yankees rivalry being up there with patriotism for some folks, Campeau-Laurion has understandably caused a bit of controversy. He claims that his First Amendment rights were violated, though, and First Amendment controversies do not always make for polite dinner conversation. See Cohen v. California, 403 U.S. 15 (1971).

If the facts are more or less what Campeau-Laurion asserts in his suit, the basic First Amendment issues seem relatively clear cut: Yankee Stadium policy effectively forced patriotic actions by requiring Campeau-Laurion to stay in his seat during the song, and Campeau-Laurion was, in effect, making political speech by choosing to ignore that song.

“Unwelcome Presence”

By Kelly Vander Ploeg

I found this article about Chae Chan Ping on The New York Times’ website. It originally ran on September 2, 1889, just months after his case. http://query.nytimes.com/gst/abstract.html?res=990DE6DF1130E633A25751C0A96F9C94689FD7CF

The Quantum Mechanics of Church and State

By Jon Spiers

Albert von Bollstädt http://www.newadvent.org/cathen/01264a.htm was born around 1200 to a genteel family, the eldest son and heir of the Count of Bollstädt, in a region of what would later become part of Germany and give birth to the likes of such varied personages as Albert Einstein, Johann Georg Faust, Johannes Kepler, Georg Wilhelm Friedrich Hegel, and Erwin Rommel. Still a young man, he journeyed to Padua where he was educated in the finest tradition – and where an encounter with the Virgin Mary http://www.crystalinks.com/mangus.html led him to join the Dominican order.

In the years to come, he devoted himself to the Church. He rose through the ranks to greatness, becoming a Bishop of his order. He was the mentor and long time friend of St. Thomas Aquinas, and worked closely with Peter of Tarentasia, later Pope Innocent V, to formulate the order of study for Dominicans.

In 1274, he was summoned to the Second Council of Lyon. There he helped press for the Eighth Crusade, which he did with the same vigor as he had for the Seventh. His contributions to the Church were many and beyond the scope of this exercise. Suffice it to say he was beatified in 1622, canonized in 1931, and joined the rarified air of the Catholic Doctors of the Church [he is the “Universal Doctor”] in the same year. Later he was named the patron saint of the natural sciences.

This holy man’s reach extends to the present day; several Catholic Schools are named in his honor. Surely, the mention of his name conjures up thoughts of religion! This saint even reaches into the University of Houston Law Center http://www.law.uh.edu/about.html – or at least he is seated before it, as one of its symbols. Could this be yet another collision of church and state? Does the UHLC favor the religious views of the bronze monk over others? Didn’t Chereminsky notice the Roman Catholic Saint seated before him as he arrived recently to address the First Amendment http://www.law.cornell.edu/constitution/constitution.billofrights.html issues surrounding intelligent design? His blood must have boiled at the sight! “Cry ‘havoc’http://www.law.cornell.edu/constitution/constitution.billofrights.html, and let slip the dogs of war…”

Justice for All: A New Look at Protected Classes

By Tiffani Walker

He did not kill a transgender woman because she was transgendered or perceived to be gay; he did it because he flew into a rage.  Allen Andrade used that defense in his trial for murder in Colorado.   A jury, however, did not buy the defense, and convicted him in under two hours of first-degree murder and a bias-motivated crime for the savage beating of his former girlfriend, Angie Zapata, who was born Justin Zapata.  He was sentenced to life in prison with no possibility of parole.

The prosecution classified his crime as a bias-motivated crime, which in Colorado can carry a one- to three-year sentence.  The issue decided in this case is one that has been decided all over the country: what type of treatment do bias-motivated crimes receive under the First Amendment?