by Mark Spivak
The case, formally titled Atalas vs. Congress of the United States, was filed three weeks ago in response to legislation that mandated the deportation of refugees currently housed on the Mexican border. President Atalas has maintained that the detainees, who are immigrants arrested while crossing the border illegally, are entitled to due process under the Constitution. The lawsuit petitioned the court to nullify the Repatriation Act and grant the President executive authority to deal with the refugee crisis.
“This court is disturbed and alarmed at the excesses of executive power assumed by the administration in this case,” said Clyde Davis, Chief Judge of the D.C. District Court. “We would remind them that the three branches of government are explicitly recognized as equals under the Constitution, and that no one branch has pre-emptive authority over the other two. The request by the President to nullify the Repatriation Act flies in the face of several centuries of precedent, all of which recognizes the responsibility of Congress to draft and pass legislation in the national interest.”
Davis was appointed during the administration of President William Hampton and presides over a court known to lean toward the liberal end of the spectrum. The conventional wisdom among Washington insiders is that Davis would support the administration’s claims for authority in this matter.
“The court takes note of the administration’s argument that the detainees are entitled to due process,” he wrote. “We recognize that while the Fourteenth Amendment guarantees this right to all U.S. citizens, the Fifth amendment implies that persons other than citizens qualify for protection. The court also asserts that the immigrants currently being held on the border came to this country in violation of our immigration laws. They are not being detained while waiting for their day in court, but rather because no one in authority has seemed to know what to do with them. In passing House Resolution 42, both houses of Congress acted decisively to resolve this situation and enforce the law. The President must now follow their lead.
“We further note that despite the administration’s repeated claims that the immigrants are entitled to due process, very little progress has been made toward that goal. From our point of view, the Atalas administration is actually in violation of the Sixth Amendment, which guarantees the right to a fair and speedy trial. Under these circumstances and given the fact that no one disputes the violation of the law by the detained immigrants, we find that the Repatriation Act should be upheld and enforced without delay.”
Current estimates on the number of immigrants detained at the three makeshift camps along the Mexican border range from 108,000 to 116,000. Living conditions have improved slightly due to the construction of temporary housing by the U.S. Army Corps of Engineers, and the camps are patrolled by troops of the National Guard. However, tensions are still high—particularly at the Brownsville camp, home to an inmate group named “La Lucha,” or The Struggle.
During yesterday afternoon’s press briefing, White House Press Secretary Josh Rulander was asked about the court’s ruling and the President’s reaction.
“He’s disappointed, obviously,” said Rulander, “and he believes the ruling to be incorrect. The President plans a swift appeal to the federal appeals court. He rejects the view that this issue is a matter of political expediency, and instead feels that we have a moral obligation to safeguard the rights of these immigrants. He is convinced that the legal process will ultimately agree with him, and he believes that future generations will view his position as compassionate and correct.”
Around the city, there were some observers who did not share the administration’s optimistic view of the situation.
“As I have maintained from the beginning, the refugee crisis is a disgrace,” said Jorge Mendoza, head of Criollos Unidos, the nation’s largest organization dedicated to safeguarding the rights of Hispanics. “Over 100,000 people are being cooped up like animals while the authorities argue over the right course of action. I call upon President Atalas to fulfill his oath of office and be the President of all the people, not just Caucasians. I also call upon the 55 million Hispanics and Latinos in this country, many of whom are citizens and have the right to vote, to determine in their hearts whether this man is truly fit to hold the highest office of the land.”
“So much for having a liberal-leaning court,” said Khaleem Atalas with disgust, tossing The Washington Post on his desk in the Oval Office.
“I really expected better from Davis,” said Curt Bassen. “But you know, it’s been nearly twenty years since he was nominated. Sometimes these guys evolve on the bench.”
“Tell me about it. Hopefully he’s not expecting a promotion anytime soon.”
“So where do we go from here?”
“The D.C. Federal Appeals Court. Dick Donovan is filing the papers now.”
“What can we expect?”
“Hard to say—it all depends on the three judges we draw on the panel. It’s a crapshoot. Let’s keep our fingers crossed, because we’d be much better off settling this before it goes to the Supremes.”
“If the D.C. appellate court sustains the ruling, you think the Supremes will hear the case?”
“It looks iffy, to tell you the truth. Gottbaum says he talked to Paul Gilliam, and Gilliam seems to have pretty much the same opinion as Davis. We don’t have to wonder where the four conservative Justices would stand on this, but Gilliam would be the swing vote. And he’s evidently shaky.”
“That’s not good.”
“Gottbaum thinks they’ll probably want to duck the issue altogether. Ever since the Democracy Unchained case, Gilliam is nervous about getting the Court involved in politics.”
“So let’s assume Davis’s ruling gets upheld. What are you going to do?”
“Well, I’m not going to deport 100,000 immigrants before I know how many are qualified for asylum—I can tell you that much. But even if we lose, I won’t have to deal with the situation until sometime around mid-November. At that point, if I have to, I’ll drop the bomb.”
“You’re still considering the nuclear option?”
“If I have to, yes. Then a week or two after that, we can announce your retirement, if you’re still serious.”
Bassen grinned. “This almost sounds exciting enough to get me to reconsider. But to be honest, I just don’t think I can stay on, regardless of how bad I feel about letting you down.”
“Curt, you don’t have anything to apologize for. You fought the good fight, and I’m grateful for the past five years.” He smiled. “That doesn’t mean I won’t keep trying to talk you out of it, though.”
“I appreciate it.”
“What are you hearing from the political shop? How bad is it?”
“Pretty bad.” Bassen shook his head. “Public sentiment is running strongly against you on the immigration issue. The Republicans smell blood in the water.”
“Foolish me, wanting to give these folks their day in court. I guess we’ve arrived at the point in history where it’s guilty until proven innocent.”
“Jorge Mendoza is making some very ominous noises. If you didn’t see his 60 Minutes interview, I’ll make sure you get a clip of it. It sounds like he’s been approached by the American Values Caucus in the House, and they’re trying to get him to support impeachment.”
“That’s not a reasonable scenario. Jorge knows we’re the only game in town.”
“Maybe, maybe not. When everything hits the fan, it’s hard to predict what someone else knows.”
“Can we talk to him? Appeal to his more practical nature?”
“I can try, but my understanding is that he’s pretty pissed off.”
“You know,” mused the President, “at times like this, I think about something Lyndon Johnson once said.”
“What’s that?”
“Supposedly he looked at an aide one day and said, ‘If I were to get up right now and walk on water acr
oss the Potomac River, the headlines in the afternoon papers would read: President Can’t Swim.’”
Chapter 38
Richard Donovan had argued dozens of cases before the D.C. Circuit Court—or the U.S. Court of Appeals for the District of Columbia Circuit, as it was formally known. He had served on a Bar Association committee with Jefferson Osborne, the Chief Justice, who sat directly across from him today. He had also played golf with Lester Shapiro, one of the two Associate Justices on the three-judge panel hearing the appeal of Khaleem Atalas vs. The Congress of the United States.
But he had never encountered the type of behavior he was seeing this morning, either in or out of a courtroom. Osborne was scowling at him, as though Donovan had offered him a platter of week-old sushi. Shapiro drummed his fingers impatiently on the oak panel of the bench. Leslie McIntosh, the third judge, stared absently around the room, as if waiting for a bus that just wouldn’t arrive.
“Your Honor, if I may add—”
“You may not,” interrupted Osborne. “I think we’ve heard more than enough information to render a decision, and that decision is both clear and unanimous. But first, for the record, I want to express my disappointment with the government’s conduct in this case. When I read the moving papers beforehand, I found it hard to believe the basis for the administration’s objection to the legislation. I assumed there had to be more to their position than the mere fact that they disagreed with the provisions of the law, or that they simply didn’t like it. I naïvely assumed that some rational argument about the constitutionality of the law would emerge, and I certainly never thought that their entire case would be based on the fact that they had a vague moral qualm about the legislation. Had I known what was to come, I never would have agreed to hear this case.
“I find the President’s position here to be objectionable. As both a lawyer and a constitutional scholar, he should have known better than to waste our time and the taxpayer’s resources with a case like this. There has been no convincing proof offered that the law in question violates the Constitution—in fact, there has been no evidence offered of any sort. While the President is correct that everyone in this country is entitled to due process, whether they are a citizen or not, he has made no apparent effort to guarantee the immigrants that right. As we sit here today, there are human beings who have been languishing in substandard conditions for most of this year, while the administration has done nothing to expedite hearings for them. As far as we can tell, the legitimate asylum seekers have not been distinguished from the hardened criminals. Under any sane and rational system of government, these individuals should have been turned back at the border if they failed to present a valid claim for asylum. This court has no idea why they have been imprisoned without the protections to which the President feels they are entitled, nor why the administration has not been more diligent in seeking a solution. On top of that, there is no reason to assume that a solution is even being contemplated, if the administration were to prevail here.”
“Your Honor, if I may?”
“Go ahead.”
“The administration’s position here is very far from frivolous. We suspect that outside interference was a major factor in the involvement of the vigilantes on the border, and that this situation would never have occurred without them.”
“If you’re referring to the Angels of Democracy, no evidence has been offered, by you or anyone else. that they have done anything illegal.”
“Even so—”
“Let me give you a hypothetical,” said Osborne. “Say I die a wealthy man. This is an unlikely outcome, but let’s assume it for a moment. I will my fortune to the local Boy Scout troop, with the proviso that they assist law enforcement as monitors at pedestrian intersections, where motorists are ignoring traffic signals. One year later, there are far fewer traffic infractions, and many citizens with multiple tickets. Those citizens are outraged, but the Boy Scouts are hardly to blame. They are not making the law, but rather helping to enforce it. The actions that were illegal prior to the enhanced enforcement are just as illegal in the present.
“The immigrants on the border are in violation of the law, and the administration has done nothing to help them. I strongly suspect that your assumption about outside interference is correct, but it’s strange that no fingers are being pointed at the culprits. Given that the government has the full assets of the intelligence community at their disposal, it’s reasonable to expect that you’d have some proof.”
“We contend,” said Donovan, “that there is a moral obligation to keep the immigrants on the border—in better conditions, certainly—until the government can determine who is entitled to asylum. Sending everyone back at once would likely result in a death sentence for some.”
“Nonetheless, the law is the law, and the immigrants are in violation of it. The Repatriation Act is nothing more than a demand that the administration live up to its oath and its responsibilities. This court rejects the plaintiff’s application, and we hold unanimously that the lower court ruling will stand.”
“Your Honor—”
“And for the record, Mr. Donovan, we recognize that you are in a difficult position. Whether or not you agree with your client in this case, you have defended them with admirable zeal. You are, of course, free to appeal to the Supreme Court, but I cannot imagine that they would entertain hearing this case.”
The buzzer sounded on Richard Haft’s desk console.
“Yes?”
“Kevin Lapham on the secure line for you, sir.”
“Thank you.” He picked up the red phone. “Morning, Kevin. How are things in the belly of the beast?”
“I have an update for you.”
“I’m all ears.”
“We’re locked and loaded. Everything is in place and going according to plan. We’re just waiting for Bassen to resign.”
“Good job. As soon as he quits, you can turn Jorge Mendoza loose.”
“Will do.”
“But not before. Is that understood?”
“Yes, sir.”
“Timing is everything—this is a very delicate operation. We don’t want any more screwups on the order of the Mexican restaurant. If anything goes wrong, there’ll be hell to pay.”
“Understood, sir. You can count on me.”
“I’m not worried about you. I just don’t want any of your colleagues to start feeling their oats and get carried away.”
“Don’t worry, everything is under control. There’s no reason why anyone or anything should deviate from the plan.” Lapham paused. “I should tell you that we have Eddie Lupin’s medical records, just in case you ever need to release them.”
“Absolutely not—under no circumstances. Is that clear?”
“Yes, sir.”
“There’s no need to subject him to that.”
“I just wanted you to know that you had this ace in the hole.”
“It’s totally unnecessary,” said Haft. “I’ve known Eddie for more than twenty years. Even if he wasn’t sick, he wouldn’t want to be president. Where are the records?”
“I have them in a vault.”
“I’m going to hold you personally responsible for en-suring that they don’t get out.”
“Yes, sir. I’ve got this.”
“Very good. Remember this: If everything does go according to plan, you’re going to be a wealthy man.”
“I can’t shake the feeling that I let you down, sir.”
It was the day after the D.C. Circuit decision, and Richard Donovan sat in the Oval Office with Khaleem Atalas and Joel Gottbaum.
“Nonsense,” said the President. “You did your best with a very weak case. Truth be known, we were just taking a shot.”
“Even so—”
“Osborne was right.” Atalas shook his head. “At the end of the day, all I have is an ethical objection to the Repat
riation Act. It’s not as vague as he contends, but he’s correct that it’s moral rather than legal. I don’t happen to believe that we should sentence the asylum seekers to death because the legal system has dragged its feet on the hearings.”
“Is there any way we can accelerate them?”
“We’ve been trying all year,” said Gottbaum. “The dockets are overloaded, and judges are overwhelmed with real criminals.”
“What about retired judges, law professors, that sort of thing?”
“It wouldn’t work,” said Atalas. “Not on a wholesale basis, anyway. We’d be opening ourselves up to challenges and appeals from right-wing groups, and the whole thing would become even more of a nightmare than it is now.” He looked at Donovan. “What’s your sense of where we go from here? Is it even worth petitioning the Supremes on this?”
“It’s bleak, sir. Osborne basically told me not to bother. I did reach out to Gilliam’s office, and the reaction from Bindleman was lukewarm. It’s a four-four split, as you know, and the Chief is extremely gun-shy about sticking his nose in politics ever since the Democracy Unchained case. Even if we got the four liberal Justices to agree to hear it, I don’t think we could prevail.”
“I understand. Still, I’d like you to go forward with the appeal.”
“Are you sure about that, sir?”
“We have nothing to lose.” Atalas shook his head. “Actually, that’s not true. If we don’t appeal to the Supremes, we give the appearance of not fully believing in our position, which is definitely not the case. So let’s play this out, and let everybody declare themselves—both us and them.”
“I’ll get to work on it, sir. But it’s going to take a while until we can get a resolution.”
“That’s fine.” He rose and offered the Solicitor General his hand. “I appreciate all your efforts on this, Dick.”
When Donovan left the room, the President leaned back in his chair, closed his eyes and pressed the fingers of his left hand to his temple.
