Thursday, February 26, 2015

Bill to ban probation for illegal immigrants likely DOA after devastating critique of (un)constitutionality

When state Sen. Joan Huffman, a former district judge, filed her SB 174 forbidding sentences of probation for "illegal aliens," Grits was dismissive, declaring the bill should be dead as soon as its Fiscal Note was calculated and the costs were determined.

It didn't take that long. The bill likely, effectively died night before last when the Houston Chronicle published an item on its website by Prof. Geoffrey Hoffman of the University of Houston Immigration Clinic titled "Houston senator's 'illegal aliens' bill is itself illegal." Hoffman offered up a devastating and IMO irreparable constitutional critique that Sen. Huffman seems unlikely to overcome.

While his discussion of federal case law was compelling, according to Hoffman, the Texas Constitution includes "arguably more expansive equal protection provisions," even, than the 14th Amendment to the US Constitution. The article concluded:
In section 3a, [the Texas Constitution] provides that "Equality under the law shall not be denied or abridged because of sex, race, color, creed" or - importantly - because of "national origin."

Furthermore, section 3 of the state's constitution provides for equal treatment under the law, considering that "All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments. …"

The Texas Legislature should carefully consider what a misguided rule like the one proposed in SB 174 would mean. Texas judges are not immigration judges. But even if they were, the determination whether or not someone should be branded an "illegal alien" is determined after a lengthy process by the Executive Office for Immigration Review, a branch of the U.S. Department of Justice.

The decision is made considering the availability of relief, after a full review of a person's personal and immigration history, among many other factors. A rule which brands people without due process, and in violation of equal protection, cannot stand.
That's a strong argument. The inclusion of "national origin" in Texas' equal protection guarantee seems to this non-attorney pretty much decisive. It's hard to see the Legislature seriously considering this bill now that these grave constitutional flaws have been exposed, especially given the sky-high fiscal note the idea would surely receive if the proposal ever got far enough along in the process for the LBB to determine its cost.

Don't get me wrong, The Texas Legislature passes unconstitutional stuff all the time. But usually they maintain plausible deniability about a bill's defects at least until after its effective date. In this case, SB 174's flaws have been exposed before its first hearing and the bill would have to be altered beyond recognition to avoid running afoul of the constitutional problems Mr. Hoffman identified. Well done, sir.


Anonymous said...

Easy solution... Deport them!!!! No need to undergo the cost of hiring a probation officer or costly incarceration... DEPORT them!!! Stick them on a bus and send them back to their home country. BUSES are the best tools to handle people who are immigration violators. Forget prisons, jails, parole, probation, or private prisons that get burned down anyway... BUSES are the answer!!!!! Lots of buses operating 24/7. Deport them all and use the prison space for private prison executives who bride public officials. Use the prison space for labor violators who illegally hire undocumented workers. Use buses and lots of them. No need to punish the poor. Use the prison space for the rich who are profiting off this immigration scam. This country is stupid for enforcing immigration at the border. There is an easy and cheap solution, enforce violations at the work place and totally shut down any violator by giving executives serious prison time and fines to companies that hire subcontractor labor who use undocumented labor.

Gritsforbreakfast said...

yeah, why bother with due process?

And forget that 85 percent of Ag labor and half of construction workers are illegal immigrants, who needs cropped picked or houses built?

Now try to propose a solution that's viable in the real world.

Anonymous said...

You a spokesman for the Cheap Labor Lobby now?

Gritsforbreakfast said...

No, just an advocate for reality over fantasy, living within budgets, and avoiding unnecessary prison building.

Anonymous said...

No Grits this is not fantasy. This is reality. Ex-convicts need jobs rights??? Increase the number of legal visaed workers and hire more ex-convicts to fill the gap. Those old immigration private prisons can be filled with the rich labor violators who exploited this country with cheap labor. Handle the poor immigration violators by placing them on a bus. Don't flag them, once they can get a proper work visa, invite them back so they can pay taxes and enter this country the right way. The war on immigrants is a waste of taxpayers dollars and too many ex-government officials are now in private prison payrolls.

Anonymous said...

It must be difficult for Huffman to be around people who occasionally follow the Constitution. Lord knows she never developed any familiarity with it in Harris County.

rodsmith said...

you would under if the pols keep any lawyers around for stuff like that. never realizing that most pol's start out as lawyers. This one is even more useless and retarded than most. Dumb fuck was a grown up lawyer. IE a friggin judge.\

makes you want to recheck each and every friggin decision the total fuckup ever issued on the bench.

immediately followed by a bullet to the brain if said files find the mess I expect.

Gritsforbreakfast said...

@9:22, it's not reality because a) the legal system exists, whether or not you acknowledge it, b) vegetables need to be picked and construction sites need more skilled workers than ex-cons can provide, and c) what you describe would be the biggest forced exodus since Stalinist transmigration and cannot be enforced without totalitarian means.

Nobody but nutjobs believe that it's realistic to deport 12 million people without destroying the economy and the Constitution. You're even nuttier if you think that's an "easy solution."

Anonymous said...

Anyone know if Sen. Huffman's bill is referring to all humans in the country or just the ones from south of the Rio Grande?

If it's aimed at any & all trespassers, it seems like it would benefit and protect the country as a whole. But if anyone attempts to defend a certain class of them based on the financial benefits it affords a certain class of businessmen, GFB will invite negative comments that deter from the topic at hand.

We can't allow ourselves to cherry pick as to who is cool and who isn't and neither can Huffman. To avoid word games, she should have considered substituting Illegal Aliens (aka: what most assume to be Mexicans, even the Mexicans) with - any & all peoples that have either: trespassed, forged / bought fake documents and or were brought here by others and went on to commit other crimes that are punishable by: fines, jail and or probation / prison.

Deportation is the only remedy (despite the location in which caught - the border, Walmart, etc...),(despite if it's one or one hundred at a time). When you allow them to pay to stay (probation fees and fines) that equates to condoning illegal activity via: judicial bribery.

Bribery in any form is wrong, just like compensating certain classes of Americans wronged by the criminal justice system is wrong.

Anyone defending illegal actions based on the cost of doing business risk being fucked with by the regular that has already made it his job to tag Grits and readers alike as criminal lovers in damn near every posting. Legal immigrants that went through the process of becoming Americans won't stand for line jumpers, cheaters & those that advocate on their behalf to be excussed due to the type of job they took for very long.

*If an American was caught anywhere south of the border, China, India, etc..., he'd be rightfully deported, that's if he survived the ride.

Anonymous said...

Having seen Ms. Hoffman on the bench in Harris Co. her recent gaffes, (plural) are merely confirmation of what those who were watching already knew, she is in way over her head and yet will likely continue to be returned to the Leg by the straight ticket votes in Harris Co.

Anonymous said...

Sec. 11. BASIC CONDITIONS OF COMMUNITY SUPERVISION. (a) The judge of the court having jurisdiction of the case shall determine the conditions of community supervision and may, at any time during the period of community supervision, alter or modify the conditions. The judge may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant. Conditions of community supervision may include, but shall not be limited to, the conditions that the defendant shall:

Anonymous said...

Give her a break. She has a handicap and knows not what she does.

Anonymous said...

Huffman is on the right track, maybe its time to amend the constitution of Texas, again. This should be applied to all nationalities, not just the southern border. It would be a much better policy approach to spread the success of America by incentivizing people to go back to their country of origin and CHANGE their country. America can't support the world much longer. Hell America is having a hard time wiping its own ass right now.

Gritsforbreakfast said...

Good luck getting 2/3 in both chambers to amend the constitution on this, 9:40. You go ahead and do that, I'll watch.

And don't be so down on America. The economy is fine, our enemies pose no significant threat, gas prices are down ... America's doing fine.

Finally, other than the periodic invasion here or there (not really "support" in the traditional sense), I don't understand how you think America is supporting "the world." What on earth are you talking about? I don't understand the reference.

Anonymous said...

"Now try to propose a solution that's viable in the real world."

Those in power don't want a solution, so you can propose all you want-waste of time.

Anonymous said...

"The economy is fine, our enemies pose no significant threat, gas prices are down ... America's doing fine."

What fantasy world are you living in. The economy is still abysmal in most places. If you don't see threats from radical forces around the world.... Gas prices are down, for now....

I've never been quick to criticize Obama but lately it has become apparent that he is hell-bent on destroying this country.

Anonymous said...

"Nobody but nutjobs believe that it's realistic to deport 12 million people without destroying the economy and the Constitution. You're even nuttier if you think that's an "easy solution.""

1. Eliminate the ability to get a job and make money and most will leave on their own.
2. Some foreign workers are needed that government has very smart people who can figure out a number and they could set up a visa program.
3. These two solutions would narrow the number down to where the remainder could be deported.

Anyone who believes those in power want a real solution to this problem is "nutty," to use Grits' terminology.

Anonymous said...

"Finally, other than the periodic invasion here or there (not really "support" in the traditional sense), I don't understand how you think America is supporting "the world." What on earth are you talking about? I don't understand the reference."

Grits, I suspect the commenter was talking about all the foreign aid we give to the world. If we suddenly stopped all of it, there would be people starving in multiple parts of the world and many would die from the lack of basic medical care, clean water, etc. So, yes, we do support large part of the world. I think that is an undeniable fact.

Anonymous said...

This is simple--illegal aliens/folks who are not legal residents who commit felonies should be deported plain & simple.

Gritsforbreakfast said...

@10:32/34/37, America Hate all you want. For some people that seems to satisfy some need and I won't deny you the pleasure. You are one person: Not everyone shares your beliefs or interests. For example, many of us want our vegetables picked and buildings constructed and you think those things can be abandoned without consequence. You're wrong and as a practical matter it's a silly (if common) position to take.

RE: 10:39, foreign aid is a trivial amount of government spending. They could end it tomorrow and it would barely amount a rounding error in the budget.

And yes, your simplistic formula at 10:37 ignores reality and is frankly tiresome because as soon as you fill in the detail, your plan creates more problems than it solves.

Some of us live in the real world. You're an anonymous nutter who doesn't attach his name to his opinions, probably because you know they're non-credible. Nothing you're written here changes that.

Anonymous said...

Lets imagine that 12 million undocumented workers were all magically deported tomorrow.

Who would work the orchards and fields? This is much more difficult work than is required of employees at Wal*Mart, Home Depot, or Starbucks. It is reasonable to assume that starting pay for agricultural jobs would jump to at least $20 per hour. Food prices would spike.

When grocery bills triple it becomes impossible to make ends meet by working LowSkill/LowPay jobs at Wal*Mart, Home Depot, or Starbucks so the ones that are physically able would leave the box stores and go work the fields... at least seasonally. The exodus would create a shortage of labor for the low end jobs which would drive up wages which in turn drives up prices for all consumer goods. Now we have inflation, Yippee!

Inflation is GOOD for people with lots of fixed rate debt. If your home's mortgage stays the same but both your take-home pay and the value of home are doubled then you are going to be better off because of inflation in the long run... but have to make it through the tight period where expense react faster than wages without incurring variable rate credit card debt.

Inflation is BAD for people with lots of money. You know, the type of people that run the country... they type of people that donate to political campaigns. They either have to invest in HighRisk/HighReward ventures or watch their fortunes be eroded by inflation. Our government will never do anything to hurt the ruling class so dream on.

Most people believe the media... the media is controlled by money. Media tells you that inflation is worse than ebola and everyone is too busy to stop and consider the truth.

Anonymous said...

Just deport the FELONS. Shouldn't be controversial at all.

Anonymous said...

Although many judges do give undocumented aliens probation, many do not. In Travis County, Judge Brenda Kennedy will not even consider giving a non-citizen probation. This usually means that they will serve a TDC sentence (if warranted) or the prosecutor will reduce the charge to a misdemeanor.
What Judge Kennedy and many of her brethren do not understand is that ICE usually gets called by probation officers anyway. When doing a pre-sentence investigation (PSI) report, probation officers verify immigration status through ICE. If the defendant pleaded to a removable (deportable) offense, ICE will usually be there to take the person into custody at sentencing (regardless of whether given probation or not). If deported, they are still on probation and will have to report by mail.
Grits is correct: whether someone is deportable or not is a lengthy process that involves more than just asking for "papers." A State judge and most attorneys (prosecutors and defense) are ill-equipped to make that determination.