What's this about?

The Immigration System, and Why It's Broken

Most foreigners coming to live in the U.S. come here in one of three ways: through close family ties, through employer sponsorship, or as a refugee. The family-based and employment-based systems have fixed quotas for immigrant visas that were last updated in 1990.

In the ensuing 20 years, those quotas have not kept pace with demand. As a result, there are now extraordinary waits for families to reunite and for workers to get their "green cards." Currently, an immigrant living here who is trying to bring a spouse or minor child must wait between four and five years. Others wait longer.

For some categories of immigrants, the prospect of legal immigration is even more unrealistic. For example, there are only 5,000 visas available per year for low-skilled immigrants who, during the late 1990s and parts of the last decade, were being absorbed by our economy at a rate of 300,000 to 500,000 per year. If all of those immigrants "got in line" for a proper visa, the waiting list that would develop in one year would span one human lifetime.

It's not hard to understand, given the above facts, that a lot of people in the last 20 years have found a way around the immigration system. Before the economic downturn took hold, there were an estimated 12 million unauthorized immigrants living in the U.S. Unauthorized workers made up five percent of the U.S. workforce.

Fixing the Broken System

Advocates on the National Mall this weekend will be calling for "comprehensive immigration reform." Broadly, this reform consists of, first, some sort of process by which unauthorized immigrants are brought out of the shadows, register, and get a criminal background check. Those who have no criminal record will be allowed to attain legal status, putting them on a path to citizenship. Second, family visa backlogs must be cleared, and admissions levels must be adjusted so that long backlogs to not immediately re-appear. Third, there must be some way to match the number of workers coming to the U.S. with what is happening in the economy. Fourth, there has to be an effective, intelligent enforcement scheme, prioritizing the worst violators of immigration and labor law. Enforcement must respect the due process rights of all, and it must be accountable. Comprehensive immigration reform will also include measures to speed the integration of immigrants.

Immigration Reform and Economic Recovery

Given that unauthorized workers make up five percent of the U.S. workforce, immigration reform will be an important component of our economic recovery. With that many U.S. workers subject to deportation, there are plenty of opportunities for unscrupulous employers to offer substandard pay to unauthorized workers. This hurts all U.S. workers. Bring unauthorized workers into the system, and they will be more willing to stand up for the rights they have under our labor laws. The "wage floor" will be raised for all U.S. workers. The Center for American Progress estimates that comprehensive immigration reform will result in a $1.5 trillion boost to the economy over a ten year period. By contrast, the economy would take a $2.6 trillion hit over ten years if we were to send all unauthorized workers packing.

Going forward, we had better make the adjustments in our admissions systems before the economy recovers. If the economy returns to anywhere near where it was in the 1990s, we can expect the number of unauthorized workers to climb steeply.

Good Policy and Good Politics

For reasons described above, comprehensive immigration reform is good policy. It is also good politics. When voters are asked about their views on comprehensive immigration reform, and the elements are described to them, about two-thirds support it. (You can find polling info here.) For Latinos, immigration reform is particularly important. The harsh anti-immigrant rhetoric of many Republican politicians is credited with their poor performance among Latino voters in the last two election cycles.

Republicans worried about the long-term future of the party are nervous about the continued harsh rhetoric toward immigrants and Latinos. If they cannot attract more Latino voters (the fastest-growing segment of the electorate), Republicans will have an increasingly difficult time fighting for majority status.

In the near term, though, Democrats have a problem. Many Latino voters in the last election were first time voters. They were inspired to make a trip to the polls by promises that new leadership would fix the broken immigration system. With elections looming, an immigration reform proposal hasn't even been introduced. Democrats don't have a lot to fire up Latino voters for a repeat performance. 

[image via fromthevaultradio.org]

The board spent the past few months examining social studies/ history standards. A faction on the board aligned with the Religious Right was determined to rewrite American history. Among other things, the new standards eject Thomas Jefferson from a list of influential Enlightenment-era figures and replace him with theologian John Calvin. The standards extol the influence of right-wing groups like the Eagle Forum and the Heritage Foundation.

Study about some important minority figures was summarily axed. Hispanic leaders in the state had pressed for more inclusion of Latino civil rights pioneers, but the board rebuffed the move. The New York Times reported that one board member, Mary Helen Berlanga was so upset she walked out of a meeting, proclaiming, "They can just pretend this is a white America and Hispanics don't exist."

The new standards reflect a bogus and long discredited "Christian nation" revisionism that has more to do with promoting a right-wing political ideology than educating young people. When one board member proposed teaching about how separation of church and state and secular government protects religious freedom, the board rejected it on a party line vote.

This disgrace comes just months after the board flirted with creationism in state science standards, adopting new guidelines that many observers believe are designed to encourage teachers to sneak creationist concepts into science classes.

Texas can't say it wasn't warned. Last year, the board appointed David Barton and the Rev. Peter Marshall, two notorious "Christian nation" propagandists, to an advisory body that examined the social studies standards. To no one's surprise, Barton and Marshall (neither of whom is a legitimate historian) proposed a raft of suggestions that reflect Religious Right dogma.

Texas has plenty of well-regarded public and private universities full of actual historians, so why did the board appoint these two? (Marshall doesn't even live in the state.) It was obvious that the battle all along was about ideology, not education. The board, unhappy with actual U.S. history that shows our country was founded with a secular government, demanded a rewrite. 

In the board's new version, Jefferson, a revered figure and one of our most brilliant statesmen, is downplayed in one section because he was one of the architects of secular government and church-state separation. Calvin, a man Jefferson regarded as a dangerous zealot, is elevated in the standards - even though the society he inspired was a harsh, intolerant theocracy.

It would be amusing if the consequences weren't so devastating. If the board has its way, a generation of Texas schoolchildren could grow up being taught Religious Right mythology instead of actual history.

The damage could be much worse if these changes find their way into textbooks. Modern technology gives book printers the option to produce special "Texas editions" of history texts tailored to the board's demands -- but will publisher do it or simply load this raft of lies and misinformation into one book that is then exported to other states as well?

What can be done? There is some evidence that residents of Texas are weary of the board's stunts. Don McLeroy, a creationist board member, lost his seat in a Republican primary recently. But McLeroy doesn't leave the board until after the general election in November, and his pending departure won't stop the board, which is bent on ramming these changes through.

The Texas legislature could also act. Some lawmakers are tired of the black eye the board has given the state. The legislature has the power to rein in the board and even strip the body of its power to influence textbooks - but that process could take a long time and is not guaranteed to succeed.

What about lawsuits? The strategy is uncertain. Pushing religion in the classroom is unconstitutional, but promoting bad history, while certainly misguided, may not rise to the level of a constitutional violation.

At the end of the day, the parents of Texas will have to speak up. Their children's education is at risk. That should be enough to inspire parents to fight back.

Most parents want the best education possible for their children. Youngsters who are taught ideology instead of education in social studies class will be at a disadvantage when they enroll in college. They'll need to take remedial course to "unlearn" the bad information they have been taught. Is this what Texas parents want? History professors at Texas colleges and universities need to get organized and speak out as well. The proposed new standards are an insult to their profession; they must lead the charge to overturn them.

Finally, parents in other states need to be on alert. They need to take a firm stand against pseudo-historical textbooks from Texas invading their states. If parents elsewhere keep the pressure up and make it clear that these books aren't welcome, textbooks publishers won't dare introduce them.

The Texas tragedy should be a lesson to us all. Religious Right extremists, far from fading away, continue to hold positions of strength and influence. We must continue to work against them - for the sake of our children.

[image via Colin Purrington] 

Over the weekend, my organization, the National Security Archive issued a report on FOIA implementation, Sunshine and Shadows: The Clear Obama Message for Freedom of Information.

The purpose of the report was to test the impact of President Obama's first full day issuance of a Memorandum on the Freedom of Information Act (FOIA) and Attorney General Holder's Guidelines on FOIA.

This was the eighth "FOIA Audit" that the Archive has issued since 2003. We use a very specific methodology for the reports. We make FOIA requests to all agencies on the same day asking for the same thing and then report on the results. That data is supplemented by data gleaned from the agencies' own annual reports. So, what we report is what they tell us. This year we added in another statistic that we drew from statements of the Department of Justice which DOJ claimed show that there is an increase in disclosure from agencies. We tested that statistic, however, to also look at what has been denied at agencies.

While our findings showed unevenness in the implementation of the Obama FOIA policies, those findings are mainly a reality check on how difficult it is to shift the course of the ship of state. Indeed, when we ran a similar audit eight years ago to look at implementation of then-Attorney General John Ashcroft's FOIA guidelines, we found very limited impact at the agencies in the short run. Over time, of course, that changed and the Ashcroft policies did impact FOIA processing and release. Moreover, the prior FOIA policy, combined with the many other secrecy policies of the Bush Administration severely interfered with the public's right to information. Thus, to use the metaphor in the title, those were cloudy and dark days for access. Today the challenge of fixing FOIA takes place in the context of the Administration's Open Government Initiative and improved executive orders issued about both the President Records Act and classified national security information. The sun seems to be creeping through the clouds.

The Archive's latest report finds many signs of progress. The message delivered by President Obama is clear - the government belongs to the people and the government should be transparent.

At some agencies this message has been adopted immediately and the agencies have not only changed the tone of their training, but have changed actual practices to reflect the president's message, including not using certain exemptions, documenting why a discretionary exemption is used to deny information, and setting up systems for electronic posting of requested records. Among the agencies that changed their practices are many of the largest - DOD, Commerce, Energy, HHS, Interior, EPA, NRC, Social Security Administration. Still others significantly enhanced their training. Some agencies, however, either responded that they have no records or did not respond to the FOIA request at all. For the most part these were smaller agencies that do not process a significant number of FOIA requests. But, there were some notable exceptions, including the Central Intelligence Agency and the Department of the Treasury.

Looking at whether agencies are now releasing records to the public that would not have been released in the past, i.e., one of the Department of Justice's metrics for improvement, we examined agencies' releases in whole, releases in part, and added an examination of denials in whole. We found that agencies such as the Department of Justice, OMB, and Department of Agriculture were both releasing more and denying less. Some agencies were denying more and releasing less. The vast majority of the agencies had indicators going both ways.

These numbers were not adjusted for quantity of requests processed, which was part of the point of the analysis. Raw trend of information disclosure does not mean that agencies are exercising their discretion to release information that they are permitted to release. Some more analysis is merited, but the report surmises that concrete changes in practices are most likely to make a difference in day to day agency release decisions.

Although many agencies did not yet report concrete changes to the Archive, the report recognized that there is a management challenge associated with changing practices and culture across all federal agencies. Chief FOIA Officer reports required by President Obama that will be made public in the next few weeks are likely to include news about more recent changes that were not captured by the Archive's research, which began in September 2009.

One of the surprises for me was that there are still FOIA requests as old as 18 years pending at agencies (NARA and DOD in particular). I had hoped we would find much shorter ages for the oldest requests. Having said that, although we did not compile data on how many old requests are carried year to year, I understand that that measure of the backlog has reduced significantly. 

Today, President Obama issued a statement for Sunshine Week recommitting to open government. White House Chief of White House Chief of Staff Rahm Emanuel and White House Counsel Bob Bauer recognized and reinforced the principles espoused by the president in his first day Freedom of Information Act Memorandum.

The senior White House leadership directed agencies to update all guidance and training materials to ensure that all personnel involved in the FOIA process are made aware of the president's FOIA policy and to ensure that sufficient resources are committed to FOIA. Yesterday, Attorney General Holder celebrated many successes implementing President Obama's FOIA memorandum and his FOIA Guidelines, including an increase in releases of information by the Department of Justice itself, in a speech at the Department of Justice.

Granted, I have only worked on these issues for seven years, but from my review of FOIA's history, there has never been such a level of interest at the highest levels of the Executive Branch. To me this feels like the start of some sustained sunshine. 

[image via lwv.org]

On March 10, 2010, ACS supporters gathered with the Oregon Lawyer Chapter to hear Professor Pam Karlan talk about a progressive vision of constitutional interpretation -- a vision she has embraced in her recent book Keeping Faith with the Constitution. Karlan (pictured) explained how her vision, which she termed "constitutional fidelity," confronts constitutional questions with an analysis of text, history and precedent, but also an appreciation for how society in the present day views a given issue and the real-world impact of Supreme Court decisions. In Karlan's view, that vision is both true to the Founders' intent, as well as modern day notions of justice, fairness, and constitutional meaning.

Karlan noted that "constitutional fidelity" is in large part a response to currently established doctrines such as textualism and originalism, which rejected the prior view of the "living constitution" as disjointed from text and history, and ultimately subject to the whims of individual judges. As Chief Justice Roberts put it, a judge should merely call balls and strikes. But Karlan explained that the baseball metaphor is a poor one, because calling balls and strikes itself is a subjective undertaking, subject to the sound judgment of the umpire -- just as deciding constitutional cases is subject to the sound judgment of the justices on the Supreme Court. Moreover, proponents of originalism and textualism frequently deviate from strict adherence to those doctrines when it would confound their preferred policy outcomes -- a level of individual input they claim to avoid. And originalists and textualists generally take into account all of the evidence that "constitutional fidelity" adherents would take account of -- it's just that they fill the blanks in with different, but no more valid, policy choices based on their own views.

The question becomes whether "constitutional fidelity" can gain ground against originalism and textualism. It can, but it will require a sustained program of support. Accordingly, as Karlan explained, it is not helpful when progressive judicial nominees embrace the baseball metaphor -- they ought to embrace the fact that a "wise Latina" adds a different perspective than another white male -- a perspective that will likely lead to different results in close cases. 

Today, following a spirited Senate Judiciary Committee hearing, in which Senators on both sides of the aisle debated the Roberts' Court recent decision in Citizens United v. FEC, the Constitutional Accountability Center ("CAC") released a new comprehensive report on corporations and the text and history of the Constitution. The report, entitled A Capitalist Joker: The Strange Origins, Disturbing Past, and Uncertain Future of Corporate Personhood in American Law, examines the text and history of the Constitution and the Supreme Court's treatment of corporations from the founding-era through the Court's recent decision in Citizens United. The report, which is available here, demonstrates that the Court's opinion in Citizens United is completely divorced from the text and history of the Constitution. In upcoming months, CAC and ACS will jointly sponsor a series of events designed to bring attention to the decision's departure from constitutional first principles.

As detailed in CAC President Doug Kendall's testimony this morning, the Constitution's text reflects a fundamental difference between corporations and "We the People" identified in the Constitution's preamble. Corporations do not vote, they cannot run for office, and they are not endowed by the Creator with inalienable rights. "We the People" create corporations and we provide them with special privileges that carry with them restrictions that do not apply to living persons.

While the Supreme Court has long recognized that corporations may assert certain constitutional rights, corporations have never been accorded all the rights that individuals have, and have never been considered part of the political community or given rights of political participation. The Court under Chief Justice John Marshall, and many times since, has emphasized that because corporations are artificial entities that receive special privileges such as perpetual life and limited liability, they are subject to greater regulation by the state. Only once before, during the darkest days of the now-repudiated Lochner era, from 1897 to 1937, has the Supreme Court seriously entertained the idea that corporations are entitled to the same constitutional rights enjoyed by "We the People." And even in the Lochner era, equal rights for corporations never extended to the political process.

Citizens United is the culmination of a forty-year struggle by conservatives to reinvigorate the Lochner-era idea that corporations deserve equal constitutional rights. In 1971, Lewis Powell -- a Virginia corporate lawyer who would soon be nominated to the Supreme Court -- advised corporations to look to the courts for relief, noting that that "the judiciary may be the most important instrument for social, economic and political change." Powell's strategy started to come to fruition just seven years later in First National Bank of Boston v. Bellotti, when Powell authored a 5-4 ruling for the Court holding that limits on a corporation's ability to oppose a ballot initiative violated the First Amendment. The Citizens United ruling dramatically expands Powell's ruling, holding that corporations have the same constitutional rights to spend money on elections as living breathing persons, giving corporations a constitutional right to participate in elections for elective office for the first time in American history.

[Image via monkeyc.net.]

Most of the opposition to U.S. detention policy since 9/11 has focused on the detention camp at Guantánamo Bay. But for nearly as long, the United States has been operating a prison in Afghanistan that has been, in many ways, Guantánamo's uglier twin. Stories of abuse and mistreatment at the Bagram facility have been all too common. At least two detainees were killed by guards at Bagram, the consequence of repeated beatings and shackling in stress positions.

Unlike prisoners at Guantánamo, however, whose habeas rights were restored by the Supreme Court in 2008, Bagram prisoners have never had a meaningful and adequate process to challenge their detention. Yet many Bagram prisoners have been held for years, without charge, without access to courts, without access to lawyers, and without even being told why they are being held. And according to official government investigations, reports by nongovernmental organizations, and interviews with former Bagram detainees and their families, many of the detainees at Bagram have never engaged in or been a part of groups engaged in hostilities against the United States. Many were instead originally picked up in the course of night raids, neighborhood sweeps, and cordon-and-search operations. Others were picked up by military forces acting on the basis of flimsy intelligence like anonymous tips from local rivals or business competitors. The risk that people at Bagram are erroneously detained is very high. It is therefore crucial that the people detained there have prompt access to a court or, at the very least, a fair, independent and impartial tribunal that can order their release. Just as with people held at Guantánamo, those imprisoned at Bagram must not be falsely imprisoned for years without charge.

Last week the ACLU filed habeas petitions on behalf of four people detained at Bagram. One petition is on behalf of two brothers: a 24-year-old Afghan who, until his capture by U.S. forces nearly 20 months ago, served as a translator for the U.S. military for four years, and a 25-year-old customer service representative for an Afghan Internet service provider, who has been imprisoned for nearly two years. The second petition is on behalf of a 61-year-old Afghan government employee, and his 27-year-old nephew, who have been imprisoned at Bagram for more than one year after U.S. forces seized them from their homes. Even though they have already been locked up at Bagram for well over a year (and for some, almost two), the government has never informed our clients of the reasons why they are being detained. Neither do our clients' families have any idea why their relatives are in prison. In fact, it was months after our clients' arrest before their families learned what had become of them.

The ACLU joins other dedicated lawyers, coordinated by the International Justice Network, who have also filed habeas petitions on behalf of other Bagram detainees. Last year, the D.C. District Court confirmed that at least some Bagram detainees have the right to petition for habeas corpus. That decision is currently on appeal to the U.S. Court of Appeals for the D.C. Circuit.

The ACLU has filed this habeas petition because it believes that the government must release our clients -- and others like them -- or else prove why they can be held in military detention. If the government does not have the authority to detain them militarily, they must be released or charged criminally under Afghan or U.S. law. Because the military's internal process for reviewing the detention of people held at Bagram is inadequate under both the Constitution and applicable international law, we are asking a court to vindicate our clients' habeas corpus rights by stepping in to review their detention.

Up until recently, the review process at Bagram was little more than a rubber stamp: detainees were not told why they were held, let alone given an opportunity to challenge their detention. The current Detainee Review Board ("DRB") policy, instituted by the Obama administration toward the end of last year, is an improvement over the prior process that existed at Bagram, but remains inadequate and unlawful. Among other defects, the DRBs are not independent or impartial -- they are composed of military officers who are not insulated in any way from the command hierarchy or other improper influences. Instead of looking only at the evidence, they are liable to be looking over their shoulders, worried that ordering the release of detainees will land them in hot water with their superiors or hinder their career progress. The DRBs also fail to afford the detainee the right to access counsel. There is therefore nobody who can stand between the detainee and the military, in order to ensure that they are treated fairly. The "personal representatives" that are assigned to detainees under the DRB process are nonlawyer military personnel responsible to the chain of command. In fact, personal representatives are appointed and removed by the same person who chooses the members of the DRB panel itself. Unlike lawyers, the "personal representatives" owe no duty of confidentiality to their "clients," and are not bound to advocate zealously on their behalf. To make matters worse, detainees are not given access to all of the evidence against them and the DRBs are not obligated to provide the detainee with evidence in the government's possession that tends to show the detainee's innocence. Furthermore, nothing in the DRB policy prevents the military from relying on testimony procured using torture or other cruel, inhumane, and degrading forms of coercion.

This isn't good enough. The current system of detention at Bagram is contrary to the Constitution and international law, and offends bedrock American principles of freedom and due process. The Obama administration should do the right thing not only at Guantánamo -- which should long since have been a distant memory -- but also at Bagram, where the indefinite detention of people without habeas rights or charge offends American values and undermines the United States' moral standing in Afghanistan and beyond.

[Image via takomabibelot.]

On Tuesday, the Supreme Court heard oral argument in McDonald v. City of Chicago, which raises the question whether the Second Amendment's guarantee of a right to bear arms applies to states and local governments. Going into argument, incorporation of the Second Amendment right seemed a given - after all, states already have to obey virtually every right in the Bill of Rights. The critical question was whether the Court would breathe new life into the Privileges or Immunities Clause, and honor the part of the Fourteenth Amendment's text that clearly protects substantive fundamental rights from state infringement.

The Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, but it was written out of the Constitution by the Supreme Court in the 1873 Slaughter-House Cases. The decision has been regarded as one of the worst in the Court's history, and roundly condemned by the Amendment's framers in the 1870s, Justice Harlan in the early 20th century, and Justice Black in the 1940s. The overwhelming consensus among scholars across the ideological spectrum - reflected in a law professors' brief filed by CAC in McDonald - is that Slaughter-House obliterated the text and history of the Clause through a profoundly incorrect interpretation of the Constitution.

Unfortunately, the Privileges or Immunities Clause received a chilly reception from the Court on Tuesday, especially from those Justices who most profess to take the Constitution's text and history seriously. Justice Scalia belittled the Clause, accusing Alan Gura, McDonald's attorney, of "bucking for some place on some law school faculty" by advancing an argument that was "the darling of the professoriate." Scalia, supposedly the Court's chief originalist, wouldn't even consider the merits of the argument. Chief Justice Roberts, too, refused to follow the Constitution's text and history where it leads. He explicitly worried that the Privileges or Immunities Clause would allow for broad protections of substantive liberty; he preferred to rely on the Due Process Clause, since that text is about process, and does not easily lend itself to protecting substantive fundamental rights. While Roberts and Scalia were content to rely on substantive due process to protect gun rights, they seemed to want to reserve the opportunity to bash the doctrine in future cases involving rights they don't recognize. Other Justices were less overtly hostile, but none seemed willing to revive the Clause.

In light of its reception at the Court, was Gura too bold?

Of course, we don't know what the Court's opinion will ultimately say; it is quite possible that much of the privileges-or-immunities history Gura cited will form the basis for the Court's opinion, which would make the case a great victory for all who care about the Constitution's text and history even if the Court relies on the Due Process Clause. But even if the Court ignores text and history, pushing to revive the Privileges or Immunities Clause was the right decision.

First, if not now, when? The Second Amendment is the only substantive provision of the Bill of Rights not already incorporated against state action. There may never be a better chance to argue that the Clause protects substantive fundamental rights against state infringement.

Second, McDonald has been a teaching moment: thanks to terrific coverage in editorials and stories in the New York Times, Washington Post, and other papers, millions of people now know that protection of substantive fundamental rights was written into the clear text of the Constitution. Thanks to this coverage, debates about whether the Constitution protects fundamental rights will not be the same. Whatever the Court says in its opinion, Americans should remember that the Privileges or Immunities Clause was written to ensure all Americans enjoy broad protections of substantive liberty, including fundamental rights not enumerated in the Constitution. And the Justices certainly are now aware of the overwhelming scholarly consensus that the Clause has been long-mistreated by the Court.

Finally, Justices have pushed to revive the Privileges or Immunities Clause for over a century, and there is no reason to think McDonald will be the last word. It is possible that, in future cases, the Court's liberal Justices may find that the Clause's text and history is a powerful weapon. When the Court next considers the right to reproductive choice recognized in Roe or the right of sexual intimacy recognized in Lawrence, the text and history of the Privileges or Immunities Clause may be a powerful rejoinder to the arguments by Justice Scalia and others that protecting substantive fundamental rights through the Due Process Clause is "judicial usurpation." The Clause's text and history, which show that that the framers were concerned about ensuring that the newly freed slaves had rights as citizens to marry, decide whether to bear children, and control their family life, gives the Court's liberal Justices powerful ammunition to root protection of rights of heart and home directly in the Constitution's text and history.

[Image via Sam Ruaat.]

The Supreme Court's recent per curiam decision vacating the D.C. Circuit's opinion in Kiyemba v. Obama, concerning the scope of a federal court's habeas authority to order the release of Guantanamo prisoners, comes as no surprise. Once the Supreme Court granted review - which was something of a surprise - it was clear that the Obama administration would make every effort to moot the case before a decision on the merits. Although those efforts were largely successful, the result is good news, at least in the short term, for Guantanamo prisoners who win their habeas cases.

Kiyemba involves the Chinese Uighur prisoners at Guantanamo. After the Supreme Court's June 2008 decision in Boumediene v. Bush confirmed that the writ of habeas corpus extended to Guantanamo, the government conceded what had long been known: the Uighurs were not "enemy combatants" and had not supported the Taliban or Al Qaeda in fighting against the United States in Afghanistan. Judge Ricardo Urbina of the U.S. District Court for the District of Columbia granted their habeas petition. But they could not be released to China, where they would suffer government persecution or worse. Nor would any other country accept them because of Chinese threats of reprisal. Accordingly, Judge Urbina ordered them released into the United States. The government appealed, and a panel of the D.C. Circuit reversed, holding that the federal courts have no authority to order the Executive Branch to admit an alien into the country.

Although the factual issues in Kiyemba were unique, the breadth of the D.C. Circuit's reasoning significantly weakened the habeas remedy for all Guantanamo detainees. judges of the district court read Kiyemba as precluding them from granting the normal habeas remedy of immediate release for prisoners whose petitions had been granted; rather, the court in such cases ordered the government to take "all necessary and appropriate diplomatic steps to facilitate" release. These "pretty please" orders gave the government substantial wiggle room, and it took full advantage. Even in cases in which successful petitioners wanted to return to their home countries, and their home countries wanted them back, the government demanded that the home countries impose restrictions (such as withholding passports) as a condition of the prisoners' release.

Thus, when the Supreme Court granted certiorari in Kiyemba, it appeared that at least some of the justices were concerned that the D.C. Circuit's decision had emasculated Boumediene. The government immediately stepped up its efforts to resettle the Uighurs elsewhere in order to avoid a potential reversal. By early this year, all but five Uighurs had been resettled (or had agreed to be resettled) in other countries, and the remaining five had been offered resettlement. In these circumstances, the Supreme Court logically remanded the case so that the lower courts could determine the legal impact, if any, of the new facts.

By vacating the D.C. Circuit's decision, the Supreme Court has for the time being lifted the perceived constraints on release orders for Guantanamo prisoners who win their habeas cases (as have 32 of 40 to date). Whether any of the district court judges will now issue direct release orders remains to be seen. It also is unclear what will happen on remand. The appellate panel could promptly reinstate its decision, finding that the changed facts do not affect its prior ruling. This seems unlikely, given that the appellate court is no more institutionally qualified to consider new facts than is the Supreme Court. More likely, the case will be remanded to Judge Urbina, who will hear evidence on the current status of the remaining Uighurs, then decide whether a new release order is needed, and, if so, what the order should be, or whether the case is moot. How that will play out is anybody's guess.

One thing is certain, however: Guantanamo, and the legal and political controversies it has spawned, will be with us for a long time to come.

Since the Supreme Court reinstated capital punishment in the landmark 1976 case of Gregg v Georgia, 1,195 people have been executed in the United States. Texas is often considered the epicenter of the death penalty, accounting for 449 executions. But executions are not evenly distributed across Texas. Harris County - home to Houston - is the true capital of capital punishment. With 112 executions, Harris County has executed about the same number of offenders as all of the other major urban counties in Texas, combined. In fact, if Harris County were a state it would rank second in executions after Texas.

Perhaps not coincidentally, Harris County is also the largest jurisdiction in the nation to use the appointment method of indigent defense - meaning the judge assigns a private defense attorney to the case. Critics have argued that the appointment method is plagued by five problems: (1) flat fee compensation (defense counsel receives a standard fee regardless of the number of hours worked, so each hour of work reduces the rate of compensation and detracts from private clients); (2) the potential for insufficient support services (defense counsel must receive approval from the judge to hire support services such as investigators and experts); (3) a potential conflict of interest for the defense attorney (defense counsel's personal income depends on remaining in the good graces of the judge to secure future appointments); (4) a potential conflict of interest for the judge (the judge must balance the defense counsel's requests for support services with the county commissioner's requests to control the costs of indigent defense; the judge must also consider the possibility that generous spending on indigent defense could hurt his/her chances of re-election); and (5) questionable appointment practices (some evidence suggests that judges occasionally make appointments for inappropriate reasons, such as whether the potential appointee is a friend or campaign contributor).

Despite such serious criticisms, researchers have not answered the most basic questions: Do procedural problems produce differences in case outcomes? Is the district attorney (DA) more likely to seek death against defendants who have appointed counsel? Is the jury more likely to impose death against defendants who have appointed counsel? Put differently, is the appointment method merely procedurally flawed or truly a matter of life and death?

To answer such questions, I examined the 504 cases indicted for capital murder in Harris County from 1992 to 1999. The findings suggest that defendants who must accept court appointed counsel are disadvantaged. The DA sought death against 101 of the 369 defendants with appointed counsel, compared to just 1 of the 31 defendants with hired counsel. Of the 101 defendants with appointed counsel who advanced to a death penalty trial, 83 were sentenced to death. The lone defendant with hired counsel who advanced to a death penalty trial was acquitted. Between such extremes are cases with mixed counsel - meaning the defendant had hired and appointed counsel during different stages of the case. Here, the DA sought death against 27 of the 104 defendants with mixed counsel, and 15 of them were sentenced to death. Combining the two stages of the process reveals the following: 0 percent of defendants with hired counsel were sentenced to death (0 of 31); 14 percent of defendants with mixed counsel were sentenced to death (15 of 104); and 23 percent of defendants with appointed counsel were sentenced to death (83 of 369). Such patterns are stunning: hiring counsel for the entire case eliminates the chance of a death sentence, and hiring counsel for a mere portion of the case substantially reduces the chances of a death sentence.

Hiring counsel also dramatically increases the chance of being acquitted. The acquittal rate for defendants who hired counsel for the entire case and were disposed at trial was 30 percent (3 of 10), compared to 1.5 percent (5 of 337) for all other defendants disposed at trial. Remarkably, if the rate for the former group held across the board then the number of acquittals would have catapulted from 8 to 104 (30 percent of 347 = 104). The relationship between hired counsel and acquittals is troubling - it does not seem plausible to conclude that defendants who hired counsel were 20 times more likely to be innocent.

The findings are unequivocal: hiring counsel alters the legal landscape. Does that mean the rich are getting away with murder? No. Examining average income in each defendant's residential neighborhood revealed that virtually all capital murder defendants are poor. The fact that some of the defendants from such poor neighborhoods can hire counsel suggests that others, perhaps relatives and friends, have pooled resources in the hour of need.

What should be done? In September 2009, the Harris County Commissioner's Court voted to create a public defender office. The implementation of the public defender's office is currently under further consideration as the budget process unfolds. The move to establish a public defender in Houston represents genuine progress and is a commendable step in the right direction. But the plan under consideration is a hybrid model: indigent defense would be provided by a mix of public defenders and appointed attorneys.

Rather than taking tentative steps, I argue that Harris County should replace the appointment method with a public defender office that handles all indigent cases. Doing so would eliminate the structural deficiencies inherent in the appointment method and reduce disparities in case outcomes (prior research demonstrates that prosecutors secure death sentences in 0 to 50 percent of cases in jurisdiction with a public defender, compared to 50 to 100 percent of cases in jurisdictions with the appointment method). Houston's distinction as the capital of capital punishment creates a special obligation to provide the most rigorous system of indigent defense possible. Only a top-notch public defender with resources proportionate to the DA can meet such a standard.

McDonald v. City of Chicago puts the Court's conservatives to a choice: Guns or federalism? Today's conservatives say that the Constitution makes both of them important but so far they haven't come up with a decent account of why one or the other should prevail, and I don't think they can.

The Rehnquist Court engaged in a modest "Federalism Revolution," and some conservative scholars were annoyed when the Court went with drug laws instead of federalism in upholding the national ban on the use of marijuana for medical purposes in Gonzales v. Raich. These cases might be described as dealing with national power exercised by Congress, and of course no national statute is involved in McDonald. But when the Court has discussed each of the constitutional provisions available as a basis for striking the Chicago ordinance down, it has noted their implications for federalism. In the Slaughterhouse Cases, the Court rejected an expansive interpretation of the Privileges or Immunities Clause - the one some conservatives are asking the Court to adopt in McDonald - because, it said, such an interpretation would authorize Congress to use the Fourteenth Amendment's fifth section to enforce a new and large set of rights. And, Justice Potter Stewart once described the Due Process Clause as part of a vast expansion of national power - legislative and judicial - during Reconstruction.

Were conservatives truly concerned about federalism, they might want to think twice about their position in McDonald. Winning the case, particularly on Privileges or Immunities grounds, would give Congress a lot more power than they think it ought to have. And it should be obvious, although it hasn't been a major part of the discussion of McDonald that striking down the Chicago ordinance is an example of judicial activism as conservatives usually define it when questioning Supreme Court nominees. (Saying that we shouldn't worry about expanding congressional power by expanding the Fourteenth Amendment because the Court is always ready to strike down congressional statutes on federalism grounds simply reinforces the conclusion that McDonald will expand judicial power - and betrays an odd confidence, from conservatives, in the courts.)

Another definition of activism is tied to Chief Justice Roberts's silly balls-and-strikes metaphor. That metaphor makes the modest sense it does if conservatives mean that judges should be activist and strike statutes down when they really do violate the Constitution, and should be restrained and uphold statutes when they don't. But the very fact that there's a fair amount of disagreement among conservatives about whether the Chicago ordinance is unconstitutional because it violates the Privileges or Immunities Clause or because it violates the Second Amendment as incorporated through the Due Process Clause shows that the Court's not going to be simply calling balls and strikes. Think of how the problem might be posed for two umpires. Both say that the pitch was a strike, but one says that it was a strike because the ball was in the strike zone when it crossed the front edge of the plate and the other says that it was a strike because the ball was in the strike zone when it passed the back edge of the plate into the catcher's mitt. The balls-and-strikes metaphor is supposed to show that judges actually don't exercise judgment when they interpret the Constitution. But the positions urged on the Court by conservatives in McDonald show that judgment can't be avoided.

The widespread judgment - which I share - that the Court will invalidate Chicago's gun control ordinance is interesting because it shows that everyone seems to agree that for conservatives federalism plays second fiddle to substantive concerns. Most conservatives will approve that invalidation if it occurs and will condemn the Court's failure to invalidate it if, surprisingly, the Court does not do so. That, I suggest, sheds some light on what contemporary constitutional conservatism is - a "theory," or more accurately a set of attitudes, about what good public policy is, masquerading as something else. So, when Republicans in Congress say that federalism somehow stands in the way of adopting health care reform (because it lies outside the powers granted to Congress and therefore reserved to the states), we ought to be pretty suspicious.

Throughout constitutional history federalism has been a mask for substantive policy concerns, and it still is. Conservatives like federalism when they can say it prevents the national government from reforming health care. They don't like it when it prevents the government from telling states to keep their hands off regulating businesses whose products harm consumers. They like federalism when it lets each state choose how many guns a person can buy each month. They don't like it when it lets cities choose to restrict gun ownership. The conservative choice of guns over federalism isn't surprising, but it does tell us something about conservatives who invoke federalism to oppose other national initiatives: They don't like the initiatives on policy grounds, and they're hoking up the federalism argument because they think it will play better with the public.