- In a series of requests for proposed legislation to address the coronavirus pandemic, the Department of Justice is asking Congress to enact a law that would allow some judges to indefinitely detain a person without the right to trial.
- The DOJ is also asking for Congress to suspend the statute of limitations for arrests and pass a law explicitly saying that migrants cannot apply for asylum if they have COVID-19.
- The requests were met with intense criticism by both Republicans and Democrats, though the DOJ has defended them, saying it worked with Congress and federal courts to develop the measures.
DOJ Requests Emergency Powers
The Department of Justice has asked Congress to grant it certain new emergency powers, including the ability for Attorney General William Barr to ask the chief judge of any district court to pause court proceedings, which could indefinitely detain people without trial.
The details of the requests were originally published by Politico on Saturday and they come as a response to the coronavirus pandemic.
Specifically, the DOJ is asking Congress to allow it the power to ask district courts to indefinitely pause court proceedings “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.”
Further, that proposal would apply to “any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings.”
That request could have serious implications, most notably the suspension of habeas corpus, which is a person’s right to appear in front of a judge after being arrested.
For its part, the DOJ is justifying this request by saying that, currently, judges can already pause judicial proceedings in an emergency; however, this new legislation would allow them to handle emergencies “in a consistent manner.”
Nonetheless, in an interview with Politico, executive director of the National Association of Criminal Defense Lawyers, Norman L. Reimer expressed concern.
“Not only would it be a violation of [habeas corpus],” Reimer said, “but it says ‘affecting pre-arrest. So that means you could be arrested and never brought before a judge until they decide that the emergency or the civil disobedience is over. I find it absolutely terrifying. Especially in a time of emergency, we should be very careful about granting new powers to the government.”
According to Politico, Reimer also called the possibility indefinite suspensions of court rules “deeply disturbing.”
DOJ Makes Several Other Requests
In its draft for proposed legislation, the DOJ also made several additional requests.
Among those, it asks Congress to suspend the statute of limitations for criminal investigations and civil proceedings during a national emergency and “for one year following the end of the national emergency.”
It’s also asking to change the Federal Rules of Criminal Procedure in some cases to expand the use of video conference hearings. Under current law, if a person consents to it, they can appear at their hearing over a video conference call and have their charges read that way.
Now, the DOJ is asking Congress to let some of those hearings happen without defendants’ consent.
“If it were with the consent of the accused person it would be fine,” Reimer told Politico. “But if it’s not with the consent of the accused person, it’s a terrible road to go down. We have a right to public trials. People have a right to be present in court.”
Another big request is that the DOJ is asking Congress to pass a law that would explicitly bar asylum seekers from claiming asylum if they have tested positive for COVID-19.
That request comes as the Trump Administration has already announced it will start barring entry to migrants at the southern border. Notably, that already includes asylum seekers there.
DOJ Requests Met with Intense Criticism
While the requests would be unlikely to pass a Democratic-led House of Representatives, the highly controversial draft legislation has largely been met with opposition both by Democrats and Republicans.
Among notable reactions, Republican Utah Senator Mike Lee—who is currently one of five U.S. Senators self-quarantining—said of the requests, “OVER MY DEAD BODY.”
“@realDonaldTrump, please refute and disavow this immediately,” he said.
In an interview on CNN with Jake Tapper Sunday morning, Democratic Representative Alexandria Ocasio-Cortez called the requests “abhorrent.
“This is not a time,” she said, “and you know, there is a long history in this country and in other countries of using emergencies as times to really start to encroach upon people’s civil rights. And, in fact, this is the time when we need them the absolute most. We have to keep an eye out for these kind of authoritarian and frankly this expansion, or rather suspension, of rule of law.”
Former RNC Chair and former Lieutenant Governor of Maryland Michael Steele also blasted the requests, saying on Saturday, “NO!! This is NOT a slope we want to get on. Suspending Constitutional Rights!? With this crew?! OH HELL NO!”
Richard Painter, the former White House Chief Ethics Lawyer for George W. Bush, called on Barr to resign on Monday.
DOJ Defends Request
At the same time, the DOJ has defended its requests. Sunday night on Twitter, spokesperson Kerri Kupec tried to clarify the situation by outlining the DOJ’s reasoning.
“There has been some confusion re: reports about DOJ asking Congress for certain “emergency powers,” she said. “This was triggered by Congress asking DOJ for suggested proposals necessary to ensure that federal courts would be able to administer fair and impartial justice during [a] pandemic.”
Kupec then said the draft proposal was “developed in consultation w/ Congress and federal judiciary to help federal judges more consistently manage cases w/in their districts & protect interests of justice during this national emergency.”
“Because of pandemic-related measures, courts are closing and grand juries are not meeting,” she added. That means prosecutors may not be able to indict criminals before a statute of limitations expires, or dangerous criminals who have been arrested may be released because of time limits.”
Because of pandemic-related measures, courts are closing and grand juries are not meeting. That means prosecutors may not be able to indict criminals before a statute of limitations expires, or dangerous criminals who have been arrested may be released because of time limits.3/— KerriKupecDOJ (@KerriKupecDOJ) March 23, 2020
Kupec said that authority would end once the national emergency was over if a chief justice found that emergency conditions were no longer affecting the federal courts.
“Bottom line: The proposed legislative text confers powers upon judges. It does not confer new powers upon the executive branch. These provisions are designed to empower the courts to ensure the fair and effective administration of justice.”
That authority too would end at the earlier of the termination of the COVID-19 national emergency or upon a finding by the Chief Justice (or his designee) that emergency conditions no longer affect the functioning of the federal courts. 10/— KerriKupecDOJ (@KerriKupecDOJ) March 23, 2020
Bottom line: The proposed legislative text confers powers upon judges. It does not confer new powers upon the executive branch. These provisions are designed to empower the courts to ensure the fair and effective administration of justice.— KerriKupecDOJ (@KerriKupecDOJ) March 23, 2020
See what others are saying: (NBC News) (CNN) (Rolling Stone)
Supreme Court Sides With High School Cheerleader Punished for Cursing on Snapchat
The justices ruled that the student’s year-long suspension from her school’s cheer team over an expletive-filled Snapchat was too severe because her post was not disruptive.
SCOTUS Rules in Free Speech Case
The Supreme Court ruled Wednesday that a Pennsylvania school district violated the First Amendment when it handed a cheerleader a year-long suspension from her team after she sent friends an expletive-filled Snapchat outside school grounds.
The case in question centered around a snap sent in 2017 by now-18-year-old Brandi Levy in which she expressed frustration at not making her high school’s varsity cheer squad. The snap, sent on a Saturday from a convenience store, shows Levy and a friend flipping off the camera with the caption: “F— school, f— softball, f— cheer, f— everything.”
That post was sent to around 250 people, including other cheerleaders at her school. When her coaches were alerted to the post, they suspended her from cheerleading for a year.
Levy and her family, represented by lawyers from the American Civil Liberties Union, sued the school district, arguing that it had no right to punish her for off-campus speech.
A federal appeals court agreed with that argument, ruling that schools could not regulate speech outside school grounds. That decision marked the first time that an appeals court had issued such a broad interpretation of the Supreme Court’s landmark 1969 student speech ruling.
In that case, SCOTUS allowed students to wear black armbands in protest of the Vietnam War, declaring that they do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The high court did specify that disruptive speech on school grounds could be punished.
Off-Campus Speech Questions Left Unresolved
In Wednesday’s decision, the justices agreed that Levy’s punishment was too severe because her speech did not meet the test of being disruptive. However, they did not uphold the appeals court decision that schools never have a role in disciplining students for off-campus speech.
“The school’s regulatory interests remain significant in some off-campus circumstances,” Justice Stephen Breyer wrote in the opinion for the court’s majority. “Thus, we do not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus.”
Breyer also added that specific question would be left for “future cases.”
In the sole dissent, Justice Clarence Thomas objected to that approach, arguing that Levy’s language met the threshold for speech that is disruptive and thus can be regulated off-campus based on past precedent. His colleagues’ ruling, he wrote, “is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the court’s opinion today means.”
Both opinions are significant because while the majority decision focused more narrowly on whether the speech, in this case, was disruptive, the justices appear to be opening up space for a case that centers more specifically around the power of schools to regulate student speech off-campus.
Still, Levy and the ACLU cheered the decision as a victory for student speech off-campus, despite the court’s lack of ruling on the subject.
“Young people need to have the ability to express themselves without worrying about being punished when they get to school,” Levy said in a statement.
“The school in this case asked the court to allow it to punish speech that it considered ‘disruptive,’ regardless of where it occurs,” ACLU’s legal director David Cole added in separate remarks. “If the court had accepted that argument, it would have put in peril all manner of young people’s speech, including their expression on politics, school operations, and general teen frustrations.”
See what others are saying: (The Washington Post) (NPR) (The Associated Press)
Biden To Outline Actions Aimed at Combatting the Recent Rise in Violent Crime and Gun Violence
The president’s orders come the same day the Associated Press released data showing that a record number of gun sales were stopped last year because of background checks.
President Biden Issues Orders on Violent Crime Rise
President Biden will outline several actions on Wednesday that his administration plans to take to curb the recent rise in violent crime and gun violence.
That includes tougher enforcement policies for federal gun control laws, as well as new guidelines for how cities and states can use COVID-19 relief funds to combat gun violence. For instance, those guidelines will allow for the hiring of more police officers, paying officers overtime, buying equipment, and funding additional “enforcement efforts.”
Biden’s plan also includes investing in community-based intervention programs for both potential perpetrators and potential victims of gun violence and helping felons adjust to housing and work after leaving prison.
Background Checks Stop Record Number of Sales
Hours ahead of Biden’s announcement, the Associated Press reported that background checks blocked a record 300,000 gun sales last year, according to newly obtained FBI data provided by a nonprofit that advocates for gun control.
In fact, the numbers are staggering compared to previous years. For example, background checks that successfully blocked gun sales last year amounted to nearly twice that of 2019.
Notably, about 42% of those blocked sales were explicitly because would-be buyers had felony convictions on their records.
Still, it’s important to note that these stats don’t necessarily mean less guns are being successfully bought. While the rate of barred buyers has increased somewhat from around 0.6% to 0.8% since 2018, the U.S. also saw a record number of gun sales last year.
Nearly 23 million guns were bought in 2020 alone, according to the consulting firm Small Arms Analytics. Alongside that record, the country saw another record when it came to the rate of gun violence.
Because of that, Everytown for Gun Safety — the group that gave the AP the new background check data — reiterated its belief in the need for stronger gun control regulation.
“There’s no question that background checks work, but the system is working overtime to prevent a record number of people with dangerous prohibitors from being able to buy firearms,” Sarah Burd-Sharps, the group’s director of research, told the AP. “The loopholes in the law allow people to avoid the system, even if they just meet online or at a gun show for the first time.”
Unsurprisingly, gun rights advocates have pushed against that idea, and some have even pushed against this new data on background checks. As Alan Gottlieb — founder of the group the Second Amendment Foundation — argued, the higher number of denials could be partially because of false positives.
“A day doesn’t go by that our office doesn’t get complaint calls from people who’ve been denied wrongly,” he told the AP.
See what others are saying: (USA Today) (Associated Press) (Reuters)
California Plans Unprecedented $5.2 Billion Rent Forgiveness Program
State lawmakers are also debating on whether to extend the eviction moratorium, which is set to end next week, to ensure that Californians are not evicted before their debts can be paid off by the state.
Rent Relief in the Works
The California State Legislature is in the final stages of negotiating an unprecedented $5.2 billion rent forgiveness program to pay off unpaid rent accumulated during the pandemic.
It is not entirely clear yet who would receive the money, which comes from an unexpected budget surplus and federal stimulus funds. After speaking to a top aide for Gov. Gavin Newsom (D), the Associated Press reported that the $5.2 billion figure would cover all rent.
However, the same aide told The New York Times that the state had federal funds “to help pay the rent of low-income people.”
The outlet also explicitly reported that the program “would be available to residents who earn no more than 80 percent of the median income in their area and who can show pandemic-related financial hardship.”
Newsom offered little clarity, retweeting multiple stories and posts on the matter, including The Times article as well as others that said “all” rent would be paid.
Regardless, the program would be the most generous rent forgiveness plan in American. Still, there remains an unresolved question of extending the statewide eviction moratorium that ends June 30.
Eviction Ban Complications
Starting the new program and distributing all the money will take some time, and California has been struggling to keep up with demand for more modest rent relief programs.
According to a report from the California Department Housing and Community Development, just $32 million of $490 million in requests for rental assistance through the end of May had been paid.
State legislators are debating extending the protections and are reportedly close to a deal, but nothing is set in stone yet.
Tenants rights groups say the move is necessary to ensure struggling Californians are not evicted before their debts can be paid off by the state, and some housing advocates want to keep the moratorium in place until employment has reached pre-pandemic levels.
Landlords, however, have said it is time to end the ban, pointing to the state’s rapid economic recovery, which added 495,000 new jobs since February, as well as Newsom lifting all restrictions on businesses last week.
But according to Opportunity Insights, an economic tracker based at Harvard, while it is true that employment for middle- and high-wage jobs has now surpassed pre-pandemic levels, the rates for low-income workers are down nearly 40% since January of last year.
As a result, many of the people who have months or even a year of unpaid rent have barely been able to chip away at what they owe.
State Recovery Spurred by Revenue Surplus
Newsom’s new program comes as the governor has proposed a $100 billion recovery package — also drawing from the budget surplus and unspent federal funds — that would pour funds into numerous sectors including education, homelessness, and much more.
California is not the only state that has newfound reserves. According to The Times, at least 22 states have surplus revenue after pinching pennies during the pandemic. Some are still deciding what to do with the funding, but others have already begun to invest it into education, construction, the arts, and more.
While many economists have said these funds will be incredibly helpful tools to get economic recovery back on track and aid those hurt most by the pandemic, Republicans in Congress have argued to those surpluses should go towards paying for President Joe Biden’s infrastructure plan.
The Biden Administration and most Congressional Democrats have remained adamant that the states keep their extra funding to implement recovery-centered programs. White House spokeswoman Emilie Simons reiterated that belief Monday, telling reporters that state surpluses will not alter America’s infrastructure needs and emphasizing that many states are still struggling economically.
“This crisis has adversely impacted state and local governments, and that is not fully captured by one economic indicator,” she said.