With the vacancy on the Supreme Court created by the death of Justice Ruth Bader Ginsburg, Judge Amy Coney Barrett has emerged as the reported front-runner to replace her. While she does not have an extensive judicial record on immigration issues, one decision she authored — involving the principle of judicial non-reviewability of consular decisions — reveals some important clues about how she would rule on the High Court.
That decision, Yafai v. Pompeo, involved the denial of a visa to the wife (Zahoor Ahmed) of a U.S. citizen (Moshin Yafai) — and some very unusual facts.
Yafai and Ahmed were born and raised in Yemen, where they married. Despite the fact that he was married to a foreign national abroad, in 2001, Yafai became a naturalized citizen of the United States. Thereafter, Yafai filed Forms I-130, Petitions for Alien Relative, on behalf of Ahmed "and several of their children". Those petitions were granted, and each applied for a visa.
The consular officer denied Ahmed's visa under section 212(a)(6)(E) of the Immigration and Nationality Act (INA). That section renders inadmissible: "Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law." According to the consular officer's denial, Ahmed "attempted to smuggle two children into the United States using the identities Yaqub Mohsin Yafai and Khaled Mohsin Yafai."
The couple contended that the two named individuals were their children, but that both of them had drowned. As Judge Barrett noted: "Although it is not entirely clear from either the record or the plaintiffs' brief, their position seems to have been that Ahmed could not be guilty of smuggling, because the children whom she had allegedly smuggled were deceased."
Subsequently, the consular officer requested additional documentation about the two children in order to reconsider Ahmed's visa application, specifically: "(1) vaccination records; (2) Khaled's school records; (3) hospital bills; (4) hospital birth records; (5) the police report from the drowning accident; (6) Khaled's passport; and (7) family photos."
After those documents were submitted, counsel for Yafai and Ahmed contacted the consulate for an update. The lawyer received an email response from the embassy's fraud prevention manager, who was working on the case. In that email, the fraud prevention manager admitted that there had been "some repetition in examining the circumstances of the purported deaths of two beneficiaries."
The manager asserted, however that the couple did "not testify credibly, testif[ied] contradictorily, den[ied] the existence of evidence, and otherwise cast doubt on the accuracy of their responses." That official continued:
Hence they were questioned by the interviewing officer who referred their cases to the Fraud Prevention Unit whereupon we explored the same issues in more detail with you[r] clients. Based on their testimony, we concluded the evidence which you attached did exist, hence we requested its production in an effort to corroborate the testimony of your clients, not impeach it. As of this writing, a fraud investigator is reviewing the evidence and we will finalize our fraud report for the adjudicating officer. [Emphasis added.]
Several months thereafter, the consular officer reaffirmed the denial of Ahmed's visa. In response, Yafai and Ahmed filed suit, seeking judicial review of that decision. They contended that the consular officer "acted in bad faith by ignoring evidence that Yaqub and Khaled were their children" and that the two were deceased.
The district court dismissed the suit under the doctrine of consular non-reviewability. As the U.S. Court of Appeals for the District of Columbia explained more than two decades ago:
In view of the political nature of visa determinations and of the lack of any statute expressly authorizing judicial review of consular officers' actions, courts have applied what has become known as the doctrine of consular nonreviewability. The doctrine holds that a consular official's decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise.
As Judge Barrett noted, however:
The Supreme Court has identified a limited exception to this doctrine, however, when the visa denial implicates a constitutional right of an American citizen. ... Yet even in that circumstance, a court may not disturb the consular officer's decision if the reason given is "facially legitimate and bona fide."
Here, Yafai and Ahmed asserted that there was a constitutional right at issue, specifically Yafai's right to live in the United States with his wife. Judge Barrett noted that "the status of this right is uncertain", as a plurality of the Supreme Court, in Kerry v. Din (an extremely convoluted decision involving a three-justice decision, a two-justice concurrence, and a four-justice dissent) had held "that no such right exists."
Judge Barrett did not decide that issue, however, noting (with restraint) that the Seventh Circuit has "avoided taking a position on the issue in the past." Respectfully, if such a right were recognized, the exception would in many cases swallow the rule, so it could be argued that it would have been better if she had followed the lead in Din. That said, such a position likely would have invited rehearing en banc (assuming that she could have held a majority), so discretion may have been the better part of jurisprudence in this case.
But she had her reasons for not reaching the issue, inasmuch as she determined that even if denial of Ahmed's visa had implicated Yafai's constitutional right to live in the United States with his wife, she still would have to dismiss their appeal "because the consular officer's decision was facially legitimate and bona fide."
In making this determination, the court again showed judicial restraint in accordance with precedent. Looking to Justice Kennedy's concurrence in Din, she found: "For a consular officer's decision to be facially legitimate and bona fide, the consular officer must identify (1) a valid statute of inadmissibility and (2) the necessary 'discrete factual predicates' under the statute."
Applying that standard, the court held "the consular officer need not disclose the underlying facts that led him to conclude that the statute was satisfied". Here, the officer "cited a valid statutory basis" for denying that visa (section 212(a)(6)(E) of the INA), and also "provided the factual predicate for his decision", specifically: "You attempted to smuggle two children into the United States using the identities Yaqub Mohsin Yafai and Khaled Mohsin Yafai."
Therefore, she concluded, "[n]o more was required", and in accordance with Supreme Court precedent, the court could not "look behind the exercise of" the consular officer's discretion.
It was at that point that Judge Barrett's reasoning got interesting, as the plaintiffs attempted to push the limits of the law. They argued for an exception to the principle of consular non-reviewability because, they contended, they could affirmatively show that the consular officer had acted in bad faith. Specifically, they contended, "the evidence they produced was strong, and the officer did not accept it."
Judge Barrett admitted that the law was not clear on how far a court could look behind a legitimate and bona fide decision by a consular officer in order to assess whether that decision was made in bad faith — assuming that the court was able to do so at all. That was a correct determination, inasmuch as the law on this issue is unsettled — particularly in light of the aforementioned convoluted decision in Din.
Covering all of her bases, however, she made a factual determination that even if the court could engage in more probing review, Yafai and Ahmed had "failed to make an affirmative showing that the" consular officer had denied Ahmed a visa in "bad faith". In this regard, she concluded that a showing of bad faith requires more than proof that the couple had received an "unfavorable decision".
Further, she concluded that while the State Department was not required to rebut the allegation of bad faith, "the evidence here reflects a good-faith evaluation of Ahmed's application", in particular the request that was made for additional evidence.
Note the highlighted portion of the excerpt above. Judge Barrett found that "the officer's willingness to reconsider Ahmed's application in light of additional evidence suggests a desire to get it right. And the embassy officer's email to the plaintiffs' lawyer reveals good-faith reasons for rejecting the plaintiffs' response to the smuggling charge."
Why do I describe this as "interesting"? Consular non-reviewability is nowhere near as settled an area of the law as it should be (and as unqualified precedent suggests it is), which means that an erroneous decision — either on the facts or on the law — could lead to an expansion of that doctrine in a way that would seriously impede the ability of consular officers to do their jobs.
"Hard cases make bad law", and this was, objectively, a hard case.
Worse, reversal based on such errors could extend the reach of the courts into an area where they have no expertise whatsoever.
Contrast Judge Barrett's determinations with those of Judge Kenneth Ripple in dissent.
First, he would have followed Justice Breyer's view in dissent in Din "that a United States citizen has an interest in an alien spouse's visa application", finding it "far more compatible with the values of our constitutional tradition" — (again, respectfully) an invitation for a baseless extension of the law.
Second, he would require the government in such cases to provide significantly more evidence than is required by precedent — an invitation to judicial interference in an area where judges' expertise is sorely lacking. He found:
On this record, we cannot tell whether the adjudicating officer undertook a careful examination or whether, without any examination, he simply issued a denial based solely on a generalized, stereotypical assumption of what, in his view, happens in that country.
I'll get back to that last line in a moment. He contends, therefore, that the court has:
[T]he obligation to require, at the very least, that the Government assure us, by affidavit or similar evidence, that it actually took into consideration the evidence presented by the applicant and point to some factual support for the consular officer's decision to discount that evidence.
To what end? It is called "the doctrine of consular non-reviewability" for a reason, but under Judge Ripple's logic and proposed solution, "review" is exactly what the court would be doing with that "factual support".
Returning to the last line in the penultimate excerpt, Judge Ripple's contentions about a "generalized, stereotypical assumption of what, in" a consular officer's view happens in a foreign country is, if not exactly "why", at least one of the reasons "why" the doctrine exists to begin with.
Those consular officers are in the field, most in the country from which visa applications come (or close to them). They are therefore more familiar with the local laws and customs (to say nothing of the local indicators of fraud and deception) than a judge sitting in, say, South Bend, Ind. But if the doctrine did not exist, the judge in South Bend would be second-guessing (and likely usually overruling) the consular officer in, say, Cairo, Egypt (the visa post that services Yemen).
That is not to say that visa determinations should be made based on stereotypes (they plainly and most definitely should not). But it would be all too easy for a judge to conclude that a consular decision was based on "stereotype" when in reality it was based on practical experience with country conditions someplace far away. Especially if the judge did not like the outcome (which Judge Ripple plainly did not).
Judge Barrett did what a judge should do: She applied the law in accordance with precedent, addressing all of the issues that were raised (factual and legal) where the law was not clear. As importantly, she did not leave any unresolved issues for subsequent review that could have expanded what is, and should be, an area of limited judicial review.
And, at least in the minds of the Seventh Circuit, she got the decision right, as a majority of the active judges in the circuit subsequently denied rehearing en banc.
Judge Barrett may or may not become the ninth justice on the Supreme Court. When it comes to immigration, however, she applies the law. And that is really all that I can ask.
THE ENTIRE REASON FOR OPEN BORDERS, AMNESTY, NON-ENFORCEMENT, AND NO E-VERIFY IS TO KEEP WAGES DEPRESSED. IT WORKS!
ALL BILLIONAIRES ARE DEMOCRATS FOR AMNESTY AND WIDER OPEN BORDERS!
Desperate to ensure profits, capital has gutted the living
standards of the working class while engrossing the coffers of
those at the top through financial parasitism.
“The multitrillion-dollar bailout of Wall Street, sanctioned with the nearly unanimous support of Congress in late March, produced massive growth in the wealth of the oligarchy. On Tuesday, Forbes published its latest update on the wealth of American billionaires, reporting that the wealth of the richest 400 people has reached a record $3.2 trillion, up $240 billion from a year ago.”
Study finds 90 percent of Americans
would make 67 percent more without last four
decades of increasing income inequality
25 September 2020
A new study from the RAND Corporation, “Trends in Income From 1975 to 2018,” written by Carter Price and Kathryn Edwards, provides new documentation of the profound restructuring of class relations in America over the last 40 years.
The study, which looks at changes in pre-tax family income from 1947 to 2018, divided into quintiles of the American population, concludes that the bottom 90 percent of the population would, on average, make 67 percent more in income—every year (!)—had shifts in income inequality not occurred the last four decades.
In other words, any family that made less than $184,292 (the 90th percentile income bracket) in 2018 would be, on average, making 67 percent more. This amounts to a total sum of $2.5 trillion of collective lost income for the bottom 90 percent, just in 2018.
Furthermore, the study concludes, that had more equitable growth continued after 1975 (a date they use as a shifting point), the bottom 90 percent of American households would have earned a total of $47 trillion more in income.
Given that there were about 115 million households in the bottom 90 percent of the US in 2018 population (out of a total of 127.59 million in 2018), that would mean that each of these households would, on average, be $408,696 richer today with this lost income.
To reach these conclusions, the authors break down historical real, pre-tax, income into different quintiles of the population (bottom fifth, second fifth, third fifth, fourth fifth, highest fifth). Looking at the period between 1947 and 2018, they divide the years based on business cycles (booms and busts of the economy).
Growth in Annualized Real Family Pre-tax, Pre-Transfer Income by Quantile from RAND, “Trends in Income From 1975 to 2018,” by C. Price and K. Edwards.Their data quantitatively expresses the restructuring of class relations that began at the end of the post-WWII boom. Facing intensified economic crisis, automation, and global competition, the US ruling class undertook an aggressive campaign of deindustrialization, slashing wages and clawing back benefits won in the previous period by explosive struggles of the working class, while simultaneously funneling money to financial markets, expanding the wealth and income of both the upper and upper-middle class.
As the data shows, while the bottom 40 percent of American households made significant percentile increases to their income, relative to the top 5 percent, for the 20 years between 1947 and 1968, in the 40 years from 1980 to the present, this trend was reversed. In 1980-2000, the bottom 40 percent of the population experienced a net income gain significantly below that of the top 5 percent. It must be noted that because these are percentile increases, the absolute differences between the gains of the rich versus the poor is far larger.
Furthermore, not included in this data is wealth. In the last 40 years, and especially the last 10 to 20 years, the stock market has become the principal means through which the top 10 percent of the population has piled up historic levels of wealth.
Significantly, the data from 2001 to 2018 shows a sharp slowdown in income gains for all sections of American society as per capita GDP growth slowed and US capitalism experienced a historic decline. However, while the income of the top 5 percent of the population may have only grown by about 2 percent between 2008 and 2018, the wealth of the top percentiles of the population exploded. For example, according to data from the Federal Reserve of St. Louis, the wealth of the top 1 percent of the population increased from almost $20 trillion in the first quarter of 2008, just before the worst of the financial crisis, to almost $33 trillion at the beginning of 2018.
By using the data, the authors come up with a set of counterfactual incomes based on what would be the different income brackets in 2018 without a shift in income distribution. The top 1 percent, instead of making on average $1,384,000 would make $630,000. The 25th percentile, instead of making $33,000 would make $61,000.
Data source: RAND; Graphics by Marry Traverse for Civic Ventures; as published in TIME MagazineThe authors of the study also make several other important observations by breaking down their data on the basis of location, education, and race.
For example, they note, “Racial income disparities below the median have declined over the last four decades. This has primarily occurred because White men in the bottom half of the income distribution are earning the same or less than in 1975.” In other words, for the bottom half of the population, the bulk of the working class, there has been greater parity between sexes and races in terms of pay as white men’s pay stagnated and pay for other sections of the working class slightly increased.
While black men in the bottom 25th percentile of the population only increased their income from $27,000 in 1975 to $30,000 in 2018, black men in the 95th percentile, the upper-middle class, increased their pay from $65,000 in 1975 to $128,000—effectively doubling it.
Regarding education, they note: “Because incomes for those without a college degree have not increased more than inflation over the last forty years, education is frequently touted as a solution to rising income inequality. However, even for college graduates, incomes failed to grow at the rate of the overall growth of the economy. Thus, the economic value of a college degree may largely be in avoiding the negative outcomes felt by those who do not have one. …”
This saliently expresses what a college degree has become for most Americans: a necessity to avoid extreme poverty but in no way a guarantee of a well-paying, stable job.
The authors also note that “Incomes in rural areas have neither kept pace with the growth in broader economy nor with urban and suburban areas,” due to “a decline in the economic health of rural areas.”
The stark class divide expressed in the report is not the outcome of a single politician or for that matter a specific party. Rather, it is the policy, collectively, of the entire ruling class, as American, and indeed global, capitalism entered a period of profound and protracted crisis. Desperate to ensure profits, capital has gutted the living standards of the working class while engrossing the coffers of those at the top through financial parasitism.
“The multitrillion-dollar bailout of Wall Street, sanctioned with the nearly unanimous support of Congress in late March, produced massive growth in the wealth of the oligarchy. On Tuesday, Forbes published its latest update on the wealth of American billionaires, reporting that the wealth of the richest 400 people has reached a record $3.2 trillion, up $240 billion from a year ago.”
The Civil War Election
9 September 2020
The US presidential election is now eight weeks away. The campaign between Trump and Biden is pitting an administration that is making an increasingly open appeal to violence and police state repression against a Democratic Party campaign that, as always, offers no genuine alternative to the drive toward authoritarianism and war.
The Trump administration is utilizing the election campaign in an attempt to build up a right-wing, fascistic movement on a ferociously antisocialist basis. Trump has followed up his praise of Kyle Rittenhouse, who murdered two protesters and injured a third in Kenosha, Wisconsin last month, with calls for vengeance directed against opponents of police violence.
At his press conference on Monday, the president hailed the killing of protester Michael Reinoehl by US Marshals last week. “If somebody is breaking the law, there has got to be a form of retribution,” Trump declared, condoning extrajudicial reprisals from his supporters. The same day, he retweeted a statement from right-wing commentator Dinesh D’Souza declaring that political unrest would lead to the “rise of citizen militias around the country”—that is, fascistic vigilante organizations like Patriot Prayer, responsible for terrorizing protesters in Portland, Oregon.
As noted, Trump is not running for president; he is running for Führer. His campaign seems to be modeled on Hitler’s bid for German chancellor in 1932. Using language that is unprecedented in American history, Trump is seeking to create conditions, regardless of the outcome on November 3, in which he will emerge as the leader of an extra-constitutional, right-wing movement.
There is no doubt that if Trump wins, he will immediately escalate the suppression of democratic rights and implementation of police state forms of rule.
Under these conditions, the argument of the Democratic Party is that all opposition to Trump must be directed behind the election of Biden. For workers to allow their struggles to be subordinated to the electoral considerations of the Democratic Party, however, would be a fatal political error.
Trump did not emerge from nowhere. He expresses in the most unvarnished form the essentially fascistic, antidemocratic impulse of the American ruling class as a whole. That Trump is not some sort of demon unleashed from hell is revealed in the fact that the growth of authoritarianism and fascism is a universal phenomenon, from Brazil and India to France and Germany.
The working class must direct its opposition to the underlying disease of which Trump is an expression. What are the conditions that are fueling this crisis?
First, the coronavirus pandemic has exposed the catastrophic state to which capitalism has driven society. It is an extreme expression and product of the subordination of everything to the profit interests of the corporate and financial oligarchy.
The ruling class has effectively adopted a policy of “herd immunity,” allowing the virus to spread without restraint. The back-to-work campaign, spearheaded by Trump but implemented by both the Democrats and Republicans, has already led to an enormous surge in the death toll, which is now approaching 200,000 people. The University of Washington now estimates that the number of deaths by the end of the year could rise to above 400,000.
Second, alongside the health impact of the pandemic is a deepening social and economic crisis for millions of people. Despite the back-to-work campaign, there are more than 11 million fewer jobs now than before the pandemic hit. It is six weeks since Congress allowed federal unemployment benefits to expire, throwing millions into poverty. The number of Americans facing hunger this year is projected to increase by 45 percent, to more than 50 million.
The multitrillion-dollar bailout of Wall Street, sanctioned with the nearly unanimous support of Congress in late March, produced massive growth in the wealth of the oligarchy. On Tuesday, Forbes published its latest update on the wealth of American billionaires, reporting that the wealth of the richest 400 people has reached a record $3.2 trillion, up $240 billion from a year ago.
Third, the deepening economic, social and political crisis increases the danger that the ruling class will see war abroad as a means of resolving its problems at home. Trump is making aggressive moves in the South China Sea as part of its offensive against China, while the Democrats, if they come to power, are committed to an intensification of the conflict with Russia and war in the Middle East.
To downplay, let alone deny, the fact that the Trump presidency is metastasizing rapidly into a right-wing authoritarian regime, with distinctly fascist characteristics, is to close one’s eyes to political reality. The old refrain, “It can’t happen here”—i.e., that American democracy is eternally immune from the cancer of fascism—is hopelessly out of date. The very fact that a thug like Trump ascended to the White House testifies to the terminal crisis of the existing political system.
These processes have only intensified over the past year, vastly accelerated by the coronavirus pandemic. Trump’s fascistic rhetoric is an attempt to beat back a growing social movement of the working class against the policies of the corporate and financial oligarchy.
The Democratic Party, however, represents another faction of the same oligarchy. Its appeal is to dominant factions of the military and the intelligence agencies as the arbiters of political power to whom it will turn if Trump refuses to leave office. Its main aim is to suppress any form of social opposition that threatens the interests of the ruling elite.
Over the past week, Biden has denounced protests over police violence, attacked socialism, and made clear that he will run his campaign on the most right-wing basis possible. In the final stages of the election, the Democrats are attempting to revive their anti-Russia campaign to ever more explicitly target left-wing opposition within the United States as the work of “foreign adversaries.”
Biden presents himself as the “man in the middle” under conditions of a developing civil war situation. His campaign offers nothing to address the social catastrophe confronting masses of people. The Democrats’ open embrace of militarist violence—welcoming as part of their “coalition” the leading architects of the Iraq war—even allows the fascistic Trump to posture as an opponent of the “military-industrial complex.”
The Democrats are above all opposed to raising any issues that undermine the economic and financial interests of the ruling elite. An indication of the social policies that a Biden campaign would pursue if in office was given in an article published in the Washington Post on Monday. Referring to the economic proposals released by the Biden campaign—consisting of milquetoast reforms that were the product of discussions with the “Sanders-Warren” wing of the party—the Post wrote:
But in private calls with Wall Street leaders, the Biden campaign made it clear those proposals would not be central to Biden’s agenda. “They basically said, ‘Listen, this is just an exercise to keep the Warren people happy, and don’t read too much into it,’” said one investment banker, referring to liberal supporters of Sen. Elizabeth Warren (D-mass.). The banker, who spoke on the condition of anonymity to describe private talks, said that message was conveyed on multiple calls.
The Democratic Party, for all its denunciations of Trump, makes no mention of the essentially fascistic character of the policies he is pursuing. It should be recalled that even though Trump lost the last election by three million votes, the immediate response of the Democratic Party was to offer its collaboration. The election, Obama said, was an “intramural scrimmage” between two sides of the same team.
If the Democrats were to lose on November 3, or even if they were to win, the response would be no different. They would immediately offer an olive branch to Trump and the Republican Party.
The ability of Trump to attract and maintain a following is largely a product of the inability of the Democrats to offer anything to address the social crisis. In the end, the actual differences are marginal, focused above all on foreign policy. The fact that the contest is even close, under conditions of mass death and social devastation, is an indictment of the Democratic Party. It is incapable of making a popular appeal precisely because of the class interests that it represents.
The strategy of the working class cannot be guided by the arithmetic of an election, but the logic of the class struggle.
The Socialist Equality Party and our election campaign—Joseph Kishore for president and Norissa Santa Cruz for vice president—direct all of our attention to the growth of working class opposition. The election must be seen not as an end, but as part of a broader process. This will prepare the working class for whatever outcome—whether it is Trump or Biden in the White House or whether it is the direct intervention of the military.
There is already growing opposition in the working class. Teachers and parents are mobilizing against the efforts to reopen the schools amidst the raging pandemic. Educators and students have begun to fight against the dangerous reopening of colleges and universities, including a strike that began yesterday at the University of Michigan by 1,000 lecturers and graduate students.
There is seething anger among autoworkers, Amazon workers, transportation workers, service workers and other sections of the working class to the back-to-work campaign and the effort by the corporations to use the pandemic to increase exploitation. A “winter of discontent” is brewing with millions out of work and facing poverty and eviction.
This is combined with the continued protests over police violence and racism, sparked in late May by the murder of George Floyd. While fueled by the unending epidemic of police violence, the protests have given expression to deep social anger and a desire among millions of workers and youth to fight back.
The struggles of different sections of the working class must be organized and united through the formation of independent factory, workplace and neighborhood safety committees. The fight of teachers against the back-to-school campaign must be connected with the fight of students against the reopening of the universities, the fight of workers against the horrific conditions in the plants, the fight of the unemployed against social devastation, and the fight of the youth against police violence.
At issue in every struggle is the question of political power: What class rules and in whose interests. The only solution to the crisis is one that is directed against the capitalist system. A massive diversion of social resources away from the bailout of the rich and the financing of militarism and war is required. The wealth of the oligarchs must be seized, and the gigantic corporations and banks turned into public utilities to create the conditions for a globally coordinated program to save lives.
The fight against the pandemic is not primarily a medical question. As with every great problem confronting the working class—social inequality and poverty, war, environmental degradation and dictatorship—it is a political and revolutionary question, which raises the need for the working class to take power in its own hands, overthrow capitalism, and restructure all of society on the basis of social need.
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