Category Archives: Supreme Court

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The Legal Definition Of A Refugee, Which Obama Pays No Attention To

A puzzlement about the debate over accepting 10,000 Syrian refugees next year and more in the future is the lack of discussion of a fundamental point: Does Obama have the legal authority to order their admission to the U.S. as a humanitarian measure?

The answer is “no.”

The dictionary definition of a “refugee” is “a person who flees for refuge or safety, especially to a foreign country, as in time of political upheaval, war, etc.”

This definition underlies most of the media discussions of the Syrian situation, with its emphasis on the humanitarian crisis, which is indeed horrendous. The definition also underlies the President’s uncontested authority to provide humanitarian assistance to refugees outside of the United States if he believes that such assistance will “contribute to the foreign policy interests of the United States.” [22 U.S.C. sec 2601(b)(2)] The U.S. has already spent over $4 billion on Syrian relief under this authority.for this purpose.

However, the meaning of “refugee” in U.S. immigration law is narrower than this dictionary definition.

In immigration law, for purposes of admitting someone to the U.S., the crucial factor is whether a person has a legitimate fear of persecution, not whether a humanitarian crisis exists. By statute [8 U.S.C. Sec.1101(42)], a “refugee” is: “any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to . . . that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion…”

The statute then stretches this definition to include a person who is within his own country but who has the requisite fear of persecution. But the status of “refugee” can be granted only under “special circumstances” specified by the president. And before determining that special circumstances exist, the president must “consult,” in the form of in-person discussions between cabinet rank officials and members of the House and Senate Judiciary committees concerning all aspects of the situation. No agreement is necessary; just consultation [8 U.S.C. Sec. 1157(e)].

Section 1157 also provides for caps on the number of refugees admitted each year, and for presidential estimates of the likely numbers at the beginning of each year.

Nothing in the stretched definition changes the basic requirement that a refugee be someone who has well-founded fear of persecution.

The current controversy started on September 10, when the administration announced via press briefing a plan to admit 10,000 Syrian refugees next year. The next step was a formal Presidential Determination on refugee levels for FY2016, which projected admission of 85,000 total. The word “Syria” does not appear in the Determination, and the goal of resettling 10,000 Syrians appears only in news reports and briefings, such as a WhiteHouse.gov memo by DHS on How We’re Welcoming Syrian Refugees While Ensuring Our Safety.

Neither the press briefing nor the Presidential Determination nor the DHS memo mentions the statutory criterion of fear of persecution, and it is unclear why 10,000 Syrians will meet the standard. The State Department’s Report to Congress reviewing the section 1157(e) factors and explaining the reasoning behind the estimates does not explain why Syrian refugees meet the criterion.

Read Full Article – http://www.forbes.com/sites/jvdelong/2015/11/19/syria-who-is-a-refugee/

Mississippi Supreme Court rules same-sex divorce legal

Anna Wolfe, The (Jackson, Miss.) Clarion-Ledger

6:15 p.m. EST November 5, 2015

JACKSON, Miss. — The Mississippi Supreme Courton Thursday acknowledged the divorce of a same-sex couple under Obergefell v. Hodges, the U.S. Supreme Court ruling that legalized same-sex marriage.

In the process, two justices made claims that states may not have to follow U.S. Supreme Court rulings when they believe the court is creating policy as opposed to interpreting the law.

Five justices agreed with the ruling, consisting of just four paragraphs, that same-sex divorce is legal and should be recognized. Remaining Justices Jess Dickinson, Leslie King, Josiah Coleman and Jim Kitchens objected.

Dickinson acknowledged in his dissent, signed by Coleman, that the U.S. Supreme Court has ruled in favor of same-sex marriage and state Attorney General Jim Hoodhas informed the court that, following Obergefell v. Hodges, he finds Mississippi’s ban on same-sex marriage unconstitutional. Dickinson, however, goes on to question whether the U.S. Supreme Court exceeded the authority of its court.

“And while it is true that the Supremacy Clause of the United States Constitution obligates state courts to follow the United States Supreme Court’s constitutional interpretations, even when they disagree with those interpretations, there is substantial support from legal scholars that state courts are not required to recognize as legitimate legal authority a Supreme Court decision that is no way a constitutional interpretation, but rather is a legislative act by a judicial body that is — as Chief Justice Roberts put it — a decision that “has no basis in the Constitution or (United States Supreme Court) precedent,” Dickinson writes.

Chief Justice of the United States John Roberts wrote the dissent in Obergefell v. Hodges, which is why Matt Steffey, constitutional law expert and Mississippi College of Law professor, doesn’t believe Roberts’ opinion can be used for a valid argument.

“A dissent is the opinion of the side that lost,” Steffey said.

Steffey said Dickinson is simply saying the U.S. Supreme Court got it wrong. Steffey also said Dickinson’s argument is the same one that the Ku Klux Klan, the White Citizens Council and former Gov. Ross Barnett used to oppose Brown v. Board of Education.

“It’s exactly the same line of argument considered and rejected by our founding fathers,” Steffey said. “I’m talking about the line of thinking where every person gets to decide for themselves what the law means instead of following binding decisions of the court.”

In 2013, a judge in DeSoto County prevented Lauren Beth Czekala-Chatham from divorcing her wife, whom she married in California, because of Mississippi’s same-sex marriage ban.

Chief Justice William Waller and Justices Michael Randolph, Ann Lamar, Randy Pierce and David Chandler wrote an order in favor of Czekala-Chatham, overturning the Desoto County Chancery Court ruling.

Czekala-Chatham said she hopes to soon be divorced from her wife, who now lives in Arkansas.

“I’m happy this battle has been won. But the war on discrimination is still ongoing,” the 53-year-old Hernando resident told The Associated Press on Thursday.

She said searching for a job as a credit analyst has been difficult because potential employers see her involvement in the case.

“This fight has damaged my life in ways I can’t recover from,” she said.

In Dickinson’s dissent, he acknowledges the Chancery Court of DeSoto County’s refusal to grant a divorce to the appellant.

Dickinson attempted to prove his argument that the Supreme Court is able to “exceed its authority,” with what he called an “absurd hypothetical” about Congress taking all guns from gun owners.

“One example of this view, for instance, is that if the Supreme Court concluded that gun violence impedes the flow of interstate commerce, leading it to interpret theCommerce Clause as granting the Congress the power to confiscate all privately owned guns, who would feel bound to follow it? This absurd hypothetical, some believe, debunks any notion that it is impossible for the Supreme Court to exceed its authority. So in the context of today’s case, the question becomes whether it has done so in Obergefell,” Dickinson wrote.