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California Sues to Stop Trump’s Border Wall

In the last couple days, a lawsuit has been filed in a San Diego area District Court, seeking to stop the construction of President Trump’s border wall. The lawsuit is a 53-page behemoth of a complaint with separate claims for relief. However, it contains some very interesting arguments. Some arguments with a real chance of delaying or even halting construction of Trump’s wall, and some less likely to succeed.

In a time where politically grandstanding lawsuits and orders with little actual impact are common, it’s easy to quickly dismiss this lawsuit as another example of this. However, the lawsuit has some arguments that carry weight. It has real potential to throw a wrench in the works of Trump’s wall. But, it is still very early going for this lawsuit and it will face immense hurdles before it can hope to succeed. For now, let’s look at the situation and the arguments the suit makes.

California’s Lawsuit

It’s significant that this lawsuit is being brought around San Diego because that is the site of one of the preliminary construction sites for a prototype section of Trump’s wall. In pursuing this project, and the entirety of the walls eventual construction, the Secretary of the Department of Homeland Security (DHS) John Kelly published a “waiver” notice in the Federal Register in August of this year. This waiver essentially says that the wall’s construction does not need to follow over 30 federal laws and all state or local laws which might relate to the construction of the wall.

This probably sounds ludicrous on its face. However, the DHS has been granted this power to waive laws to some degree for decades under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA ). The IIRIRA contains a provision that allows the Secretary of DHS to waive any law he or she deems necessary to expeditiously construct reinforced fencing authorized under that section.

California’s lawsuit hinges primarily on challenging the validity of this waiver and its authority, along with challenging the sufficiency of the environmental studies done in the lead up to building the wall and the wall prototypes.

border wallThe Lawsuit’s Claims

The lawsuit being 53 pages makes discussing its claims in full a bit of a challenge. However, we can hit the highlights of its challenges.

The lawsuit starts by challenging the federal governments steps in regards to environmental law. The National Environmental Policy Act (NEPA) requires several procedures before the government can undertake a project-such as Trump’s wall-which has a significant effect on the quality of the human environment. This includes preparing a report known as an Environmental Impact Statement (EIS). The steps taken on the wall have made no such report. They’ve also ignored the requirements of laws such as the Coastal Zone Management Act and the Clean Water Act. The lawsuit challenges the wall based on this failure to follow environmental procedures for federal construction projects.

Next, the lawsuit alleges that the IIRIRA doesn’t grant authority for the waivers Secretary Kelly made for the wall. It argues that the breadth of the IIRIRA covers waiving to create walls, not replace existing walls as is happening in San Diego. The lawsuit further argues that the provisions of the IIRIRA also limit the waivers to construction in areas with high instances of illegal entry-something that is not the case in San Diego and in many places along where the wall may eventually be made. If there is no IIRIRA waiver authority, the federal government is in violation of the laundry list of over 30 laws it has waived to expedite construction of Trump’s wall. Even if the waiver authority exists, the federal government has produced no studies or evidence that supports these elements in order to establish that they should be able to use that waiver.

The waivers are also challenged on due process grounds-the requirement that the government provide a reasonable ability to a fair judicial process. However, according to California’s lawsuit, the federal government’s legal waivers are so broad (potentially covering essentially the whole southern border of the country for an essentially indefinite time) that they cannot provide reasonable notice of where the waivers are going to apply and when.

The power of Congress to pass the law in the first place is also challenged. The lawsuit cites a separation of powers issue. Congress generally can’t delegate it’s powers to another branch without clear delineation of the limits of what is delegated. Here, Congress has given power to waive laws to an agent of the Executive branch. The lawsuit argues that this vests the power of the legislature in the Executive branch-impermissibly violating separation of powers. The gist of the argument is essentially that by giving total fiat to waive all laws for this purpose, Congress has removed the power of law in this circumstance. Instead, the lawsuit argues that Congress must individually delineate what laws may be waived. It’s noting here, that while delegation of the legislative powers of Congress are theoretically unconstitutional, in practice extremely broad grants of power have been allowed in the past by the courts. However, a totally unchecked delegation may still be unconstitutional.

Finally, the lawsuit turns to the 10th Amendment. The 10th amendment, among other things, provides states the right to create and enforce their own legal code. The lawsuit argues that, as written, the waiver provisions grant the ability to indefinitely waive any and all laws of any state. The lawsuit argues that this makes the waiver provisions unconstitutional because the law exceeds the power of Congress and violates the 10th amendment

Case is Very Early Stages, But It Does Have a Chance

Nearly all of these claims require an intensely complicated bit of administrative and constitutional law for the courts to come to a final conclusion. However, as stated, the lawsuit already makes arguments that hold water. Each one has a real chance of success and any one of them could put a stop to or substantially delay Trump’s wall.

But, the lawsuit has a very long way to go from complaint to actually achieving its goal. However, it is without question that the suit will face an uphill battle. The waiver provisions in question have been used for decades and a challenge to them will face this precedent. For now, we’ll just have to wait and see how the federal government responds.

DACA On a Limited Lifespan, What Should You Expect? Part 2: Implications of Losing DACA

President Trump has declared the upcoming death knell of the Deferred Action for Children Act (DACA)-an Obama era program allowing immigrants who’ve been here most of their life to receive deferred deportation, get drivers licenses, social security numbers, and get work permits. Yesterday, we discussed whether and how you can extend the protections before the program disappears. However, that unfortunately won’t be an option for everybody.

Only those whose DACA protections expire on or before March 5, 2018 can apply for a renewal of protection and the United States Citizenship and Immigration Services office is not accepting any new applications for protection as of Trump’s announcement on September 5th of this year. While 800,000 or so people have received the protections and benefits of DACA, despite restrictive requirements limiting the program’s applicants to people who-among other things-spent nearly their entire life in the U.S., the reality is many are going to lose protections in the coming months. So what will this loss of protections mean in practical terms?

DACAWhat Does the End of DACA Mean?

First and foremost, there is a real potential of deportation. Part of applying for DACA involves giving an enormous amount of information-where you live, where you go to school, etc. This information was protected by privacy rules under the Obama administration but Trump removed those protections this January.

While the stated deportation priorities of the Trump administration are immigrants with criminal records, the U.S. Immigration and Customs Enforcement Agency (ICE) has a bit of a history in recent times of going for people they know about. This makes former DACA recipients, who have provided their address and whereabouts, potential targets. This is surely a terrifying fact for DACA recipients-many of whom have spent their whole lives in the U.S., have no ties or life outside the country, and were babies or children when their parents entered the U.S. The prospect of being forced to start over in a place where you have no roots is a scary one.

However, there’s a lot of ground to cover-in the courts and in Congress-before there is a final word on how DACA Dreamers are going to be treated. For now, we can focus on the things in your control and the more certain and immediate effects of the end of DACA.

Leaving the Country-Advanced Parole

DACA protections require recipients to continuously live in the U.S. This means no leaving the country, except with earlier permission known as advance parole. This was generally provided for emergencies and family situations. While it was initially generously granted, it’s become harder to get as the program continued. However, it’s never been harder to get than now-advance parole is no longer available whatsoever. This means that DACA dreamers will not be allowed to leave the country and keep their protections from now on. Honestly, with the situation as uncertain as it is, it may be advisable to not take an advance parole trip you have received approval for if it is coming up in the near future. If you’re already abroad on advance parole, it may be worth coming back.

Work Permits: Will You Keep Your Job?

DACA isn’t gone just yet, and won’t be until March 5, 2018. Even still, Congress and the courts may still act before that date one way or another. Either way, your work permits will be valid until DACA goes away completely. You can continue to work until then. What’s more, your employer does not have the right to ask you whether you are a DACA recipient or how you got your work permit. If you are an at-will employee (the most common type of employment) you can be fired for any legal reason. However, you cannot be fired, demoted, or put on leave simply because the expiration date on your work permit is coming up. You also are under no requirement to inform your employer that DACA has ended. As DACA ends they can ask for an updated work permit. If you don’t have a valid work permit, they will likely fire you. One potential option to help mitigate this-although it has no guarantee of success-would be to ask to placed on a leave of absence until you can figure out your work permit. Then you’d at least have a job waiting if Congress or the courts work out something with DACA.

Driver’s Licenses: Staying on the Road

One of the other great benefits of DACA was that it helped many immigrants get driver’s licenses-opening up any number of job and life opportunities. Once DACA’s gone, whether you can have a license will mostly depend on which state you live in.  Twelve states-California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Mexico, Utah, Vermont, and Washington-will give otherwise eligible residents a drivers license no matter what their immigration status is. If you live in one of these states, you’ll likely still have a valid license once DACA goes away. Otherwise you’ll need to look to the rules of your state’s Department of Motor Vehicles to determine what your options are.

How Will This Affect Your Health Insurance?

While DACA offered several advantages-access to federal healthcare plans under the Affordable Care Act was not one of them. Thus, for the most part, healthcare will be unaffected. However, if you have insurance through your work, you should anticipate losing that coverage once DACA disappears. If you have coverage through your spouse or partner, coverage will not be effected. However, you should know that your spouse or partner may offer you an additional means of becoming a legal citizen-it is likely worth consulting and attorney.

In some states and districts-California, Massachusetts, Minnesota, New York and the District of Columbia-there are state health care plans which are available to low income households-including DACA households. Washington has a similar program which may be available to DACA recipients who have disabilities.

In California, Massachusetts, Minnesota, and New York, low-income DACA recipients may be eligible for comprehensive health coverage through a state program (e.g., Medi-Cal). In Washington, DACA grantees with disabilities may be eligible for medical coverage. After your DACA expires, you may still be eligible for state health programs. Check back here for updates, or check with a trusted advocacy organization in your state. Different states will have different approaches once DACA disappears and it’s worth considering the approach of your state.

Some states offer some limited coverage based on certain diseases or populations, low-income families can often get help for pregnancy-related issues and some emergency care. A lot of these programs will be available to non-citizens even after the end of DACA.

In California, Illinois, Massachusetts, New York, Oregon, and Washington, there is also full medical coverage available to all low-income persons under the age of 19-regardless of immigration status.

Impact on Education?

Many DACA dreamers are pursuing higher education in the many colleges and universities within the U.S. Most states-with the exception of Alabama and South Carolina-allow for undocumented immigrants to attend universities. Georgia is notable for having a few colleges that specifically deny access to DACA Dreamers.

What’s more, even as it stands, DACA Dreamers can’t get federal financial aid-although some states offer aid regardless of immigration status.  For the most part, the disappearance of DACA should have a limited effect on Dreamers seeking higher

The Fate of Your Social Security Number

The Social Security Number (SSN) you received through DACA should continue to be valid even after the end of DACA and should remain valid for life. You should continue to use the SSN for tax purposes, education, banking, and any other purpose under the sun. However, it’s worth noting that it won’t be useful for employment without a work permit.

If you are a DACA recipient and haven’t yet received a SSN it is worth applying for one now while your DACA benefits are still valid.

Knowing Your Rights When Dealing With ICE

We’ve talked about deportation as a possibility, and that means dealing with ICE. There have already been reports of ICE agents targeting DACA recipients. It’s important to know your rights regarding ICE-even as an undocumented immigrant you have constitutional rights. However, if you have any real questions or legal issues it is crucial that you speak to an immigration attorney. But, there are a few things worth keeping in mind for dealing with ICE:

  • You are not required to answer any questions asked by an ICE agent. It is generally better not to answer until you consult an attorney.
  • You do not have to, and generally should not, answer the door to an ICE agent who is knocking.
  • You are not required to and should not, before consulting an attorney, sign anything given to you by an ICE agent.
  • If an ICE agent stops you outside your home, it is worth asking if you are free to leave. If the answer is yes, you can and should leave.

The Future

The rights we’ve talked about above are just guidelines. It cannot be said enough that if you have any issues at all it is worth speaking to an immigration attorney. At a minimum, it can be worth speaking to an attorney to determine if you have any non-DACA immigration options. The future is uncertain, and the best you can do is be prepared. Save money for emergencies, make sure somebody else has authorization to access bank accounts and the like, potentially add somebody else to your mortgage, car lease, or home lease, etc. Once again, consult an attorney to know exactly what steps you may need to take-or at least try and attend one of the many free legal clinics which will be available throughout the month at locations across the nation.

DACA isn’t gone until March 5, 2018. Until then, DACA protections and work permits should remain valid. However, it is worth noting that USCIS has the power to revoke DACA status on pure discretion-basically for any reason. This underscores the biggest problem with how DACA has been treated-the uncertainty. People who’ve never lived anywhere else have been forced to live with a rug beneath their feet which may be pulled away at any moment-forcing them to live in a place they have no ties. The way DACA has been treated, it may even leave some more vulnerable than they were before it. However, there are still tools available. For now, the best that DACA Dreamers can do is be prepared and seek legal help.

DACA is on a Limited Lifespan, What Should You Do? Part 1: Renewing DACA Status

As of September 5th, it is official, President Trump has announced an end to the Deferred Action for Childhood Arrivals (DACA) program. The program, created by executive order from former-President Obama, has provided protection to around 800,000 people within the United States. These people are often referred to as Dreamers due to the similarities between DACA and the failed 2001 DREAM Act. The program allowed some immigrants who fulfilled a strict set of requirements to qualify for deferred deportation proceedings, as well as receive work permits, social security numbers, and drivers’ licenses. All things can be crucial to anything from holding a job to starting a business to receiving higher education to getting a house.

Since its origin, DACA has helped many immigrants achieve these dreams. However, as of Trump’s September 5th decision, the program is off the table for new applicants and those who applied and received protection under the program-a process that requires providing an enormous amount of personal information-on a timer with an uncertain end.

The people receiving the benefits of DACA are almost entirely people who have little or no ties outside the U.S.-living most of their formative years here. Many DACA recipients have never lived outside the U.S. whatsoever-being born and raised within the country. To qualify for protection, you needed to fulfill several requirements. A DACA applicant must:

  • Be under 36 years old (as of today);
  • Have been under 16 years old when they came to this country,
  • Have lived in the U.S. non-stop from June 15, 2007 to today;
  • Have entered the country illegally or had their legal status expire before June 15, 2012;
  • Not have been convicted of a felony, a significant misdemeanor (domestic violence, sexual abuse, burglary, and the like), any three misdemeanors;
  • Have graduated from high school, be in school, received a GED, or have been honorably discharged from the U.S. Armed Forces; and
  • Not be considered a threat U.S. national security.

DACA doesn’t provide citizenship, it instead offers “lawfully present status,” an important distinction. However, even with such substantial restrictions on the program and no citizenship on offer, hundreds of thousands-nearing a million-people have relied on the protections DACA offered.

DACAAfter the September 5th order, no further DACA applications will be considered. Any new applications received at this point will be rejected. However, this does not mean a complete and immediate end to DACA protections. For those who have made applications before September 5th it is unclear how these applications will be handled. At a minimum, there has been no statement that these applications will be rejected out of hand. Those who’ve received DACA protections will also not immediately lose what they have. The protections will last until they would naturally expire, in some circumstances they can even be renewed. No matter the situation, if you’re a DACA Dreamer Trump has put you in a tough spot and it’s important to know your rights and how to proceed. To help with this, we’ll look at the steps you can take to potentially extend your DACA protections if you’ve already signed up. What’s more, in case you won’t be able to renew your stats, later this week we’ll have an article on the implications of losing DACA protections-some of the steps you can take and what you can expect.

How to Renew Your DACA Status

First and foremost, no matter what your situation, you shouldn’t go about trying to renew your DACA status on your own. If you have any questions, or even if you don’t, seeking the help of an experienced immigration lawyer to help you with your application process is more important than ever. As we’ll discuss, time to renew is short and a mistake on an application may leave you without recourse. Fortunately, in the coming weeks there will be free legal clinics across the nation willing to help you with your application. Look online to search for these clinics, either at a home computer or at a library.

As we mentioned earlier, no new applications are being accepted anymore. So at this point if your aren’t renewing your DACA status, it will be best to look to other alternatives in seeking legal status. The final deadline for all renewal applications is October 5th, 2017, applications must have arrived at the United States Citizenship and Immigration Services Office by this date. So you basically have less than a month to get your renewal application in-thus the importance of seeking help from an attorney or a free clinic. You’ll only be able to renew for 2 more years if your DACA expiration date is March 5, 2018 or earlier. All expiration dates after this will maintain protection until they expire, but cannot seek a renewal at this point. Obviously you’ll need to still fulfill the original requirements discussed above for DACA if you seek to renew. If you’ve been convicted of a crime (DUIs are especially known as the DACA-killer) or left the education program you were in when you first applied it could seriously impact your chances of a DACA renewal and seeking an attorney’s help becomes even more important. Another potential roadblock could be if you’ve left the country without advanced parole. You must live in the U.S. continuously to receive DACA protections. The exception to this is where you receive advanced parole-basically get pre-approval to leave the U.S. These are generally granted for emergency reasons or family reasons and used to be generously granted, although that has changed in recent times. If you’ve left the country without such parole, that’s another reason to seek an attorney.

If you have advanced parole coming up, it may be best not to take it in such uncertain times. If you’re abroad on advanced parole, it’s probably worth coming home as soon as possible.

As for the documents you will need to fill out for renewal, there are two big ones with an additional worksheet tacked on-an I-821D, an I-765, and a worksheet accompanying the I-765 called the I-765W. These can be easily obtained online and will likely be available at the legal clinics in the coming month.

It sounds like a broken record, but it’s worth getting an attorney help with these forms. There is too much on the line to risk potentially losing renewal over clerical issues or mistakes on your form. For the I-821D some common mistakes include providing a physical address instead of a mailing address or providing an address that doesn’t match your I-765. You should generally apply with your most commonly used name. However, as much as possible these forms should mirror the information on your initial application and your birth certificate. As a renewal, you will only need to provide an address if you have moved since your initial application. If you have moved, it’s important that you reported this change of address soon (within 10 days) after the move. If you did not, you may need an attorney to help you clear up this issue.

The I-765 will ask for, among other things, financial information. This area often trips people up, but generally you can answer with a good faith estimate which is as accurate as possible. Annual income can take a month and multiply it by 12 or just be based of income tax. Expenses can similarly be done as your average month times twelve plus incidentals like back to school costs. Assets is simply a list of what you have, house, business, car, etc. Another thing to take note of on this form is the explanation of economic state section.  This is a good opportunity to add a personal touch to an application-focus on how DACA has effected your family and financial state. DACA renewals can occasionally be denied purely on discretion-basically for nearly no reason at all-immigration experts feel that adding a personal touch can sometimes help with this.

Similarly, it can be worth including a handwritten letter of what DACA has done for you personally with your I-821D. Once again, to try and help avoid potential discretion-based refusals.

If you’ve recently been married or had a child, this may change what you need to write on your form. However, it also may open new avenues to full citizenship. Make sure you fully explore all your options if you speak with an attorney or attend a free clinic.

The Uncertainty Can Be Terrifying

DACA was life changing for many people, suddenly losing its protection can be terrifying and devastating. This is especially true because of the enormous amount of information provided through these forms, information that could potentially be used as tools by an agency like ICE given Trump’s weakened privacy protections for immigrants. However, if you can get a renewal it could be huge. Two years is a long time and the full history of DACA has not played out. DACA will not be gone for around 6 months and where the law goes from there will be a battle played out in the courts and in how Congress chooses to address the issue. If it hasn’t been said enough already, seek the help of an attorney and find out if you are eligible for renewal.

If you aren’t eligible, you need to know your rights and what to expect as DACA disappears. While DACA is not yet gone and the battle is not yet over, it is important to plan for the worst and know what DACAs disappearance may mean for you. Later this week, we’ll have an article on just this issue. For now, consider legal support in your immediate area; chances are very good that free legal help may be available.

Transgender Military Ban Still In Effect, Despite Defense Secretary Mattis’ Freeze

After President Trump’s impromptu tweet, declaring a ban on transgender persons in the military, the Pentagon made it clear that they would not act until a more official statement was made than a tweet that caught even them by surprise. In the wake of the tweet, and the Pentagon’s refusal to execute Trump’s wishes without more clarity, Trump released a Presidential Memorandum placing the exact terms of his ban in effect on August 25th. Around a week after that, Defense Secretary Mattis declared that transgender persons could continue serving in the military until a study on the issue had been completed determining the impact transgender persons had on the readiness and efficiency of the military.

Some in the media have mistakenly hailed this as a strike back against Trump, describing the study as a freeze on Trump’s order and Mattis as a hero standing up for transgender persons. The study is, unfortunately, nothing of the sort. Instead, Defense Secretary Mattis is simply following the terms of Trump’s order on the issue-including when and how it will take effect. This doesn’t mean that there is no chance the final order will be tempered slightly from its original version. However, the study is far from fighting back against Trump’s most recent memorandum. Let’s take a look at the contents of this presidential memorandum and figure out exactly what it does, and how Secretary Mattis’ study impacts its effect.

transgenderTrump’s Presidential Memorandum Explained

The memorandum, titled as a message to the Secretary of Defense and Secretary of Homeland security, has a simple subject line of “Military Service by Transgender Individuals.” It’s effects are essentially a rollback of the June 2016 order from the Obama administration which allowed transgender persons into the military in the first place.

Citing a lack of faith in the extensive research done prior to the 2016 order, determining the costs and negative readiness impact of allowing transgender persons to enter the military to be minimal, the order has a number of effects-some immediate and some delayed. The directive refuses all Department of Defense resources to transgender persons seeking sex reassignment surgery-excluding situations where it is necessary to protect the health of the person. This basically puts health related resources out of reach for reassignment treatments and surgeries unless a transgender person has already begun the reassignment process. Other than that, the primary effect of the order is order Secretary Mattis and the Secretary of Homeland Security to begin a study of whether and how the transgender military ban should take effect for both those already enrolled and those seeking to join. The study and recommendations would be due by February 21st, 2018 and all the provisions of the ban itself-including the bar on resources for reassignment treatments-will take effect on March 23rd, 2018.

Secretary Mattis’ Study is Not a Delaying Tactic or a Step For Transgender Individuals

While Mattis’ study has been reported as a defiant step to slow down President Trump’s order, it’s simply an act following the very terms of the order. What’s more, considering the Department of Defense already did a similar study concluding that transgender persons should be allowed to enter the military, a new study is unlikely to be anything other than a step backward for transgender people in the military.

Secretary Mattis does not exactly have the strongest background on social issues. He has expressed great concern in the past over women being in combat roles, never mind transgender women. He has cited a fear that women and men would interfere with each other on the battle field, as well as a belief that women can’t perform “intimate killing.” However, it can’t be denied that-regardless of his less than stellar history on social issues-Mattis wants as strong of a military as possible.

The study begun by Secretary Mattis is not a step forward for transgender persons in the military. However, there is still a real potential that if the study reconfirms the previous study he could recommend either postponing or eliminating Trump’s ban altogether. However, we’ve got several months to wait until we know whether this is the case. What’s more, we’re very unlikely to get much indication as to what the study will recommend-or if President Trump will even care-until that time. There’s a very real possibility that the recommendation is made and Trump simply ignores it.

The over 15,000 transgender people who chose to sign up to serve their country in the last year are, once again, left with no idea how their fate will be handled. Even beyond withholding health services from these people, there’s still the question of if or how they will be discharged. As mentioned in a previous article, Don’t Ask Don’t Tell led to dishonorable discharges which publically outed many as homosexual on the very form discharging them. These transgender persons may well face a similar fate. This uncertainty, more than admitting transgender persons to the military, has the potential to undermine the military itself. The sooner a resolution on this can come, the better. For now, thousands will be left to question their fate.

Texas Voter Discrimination Ruling Stayed By Justice Alito

It hasn’t been a good year in the courts for the integrity of Texas voting. They’ve had their voter ID laws ruled to be made with the purpose of discriminating against minorities and two separate courts have ruled that they’ve gerrymandered their districts to intentionally “pack and dilute” minority votes. One of these gerrymandering cases was upheld as intentionally discriminatory on appeal a few weeks back–placing Texas on a short deadline to fix the districts before next year’s voting took place. The Voter Rights Act (VRA) and a Supreme Court ruling known as Shelby mean that any of these rulings-if they stick-could leave Texas asking for federal pre-clearance for any voting laws they seek to enact. This is important because the VRA was amended a few years back to remove its enforcement provisions-rendering it essentially toothless unless a case like the ones against Texas succeeds. In the wake of these changes, Texas and states passed voting laws that have faced constitutional challenges across the nation.

However, another wrinkle has been thrown into the equation for the most recent court ruling on the gerrymandering cases against Texas. Justice Alito, acting on his sole authority as a Justice of the Supreme Court of the United States, has issued a one sentence order stalling the ruling requiring Texas to change the make-up of some of its districts. This isn’t a ruling of the Supreme Court, but it does indicate that the Supreme Court will be taking a look at the case once they all reconvene.

In order to understand the implications of Justice Alito’s actions, it’s necessary to take a look at the ruling underlying Justice Alito’s actions.

votingThe Underlying Ruling

Gerrymandering in the law operates on a fairly simple principle, creating voting districts with race as the primary consideration, or even just creates a result of diminishing the voting rights of a particular race, is a violation of the Constitution. It is worth noting that, as counter-intuitive as it may sound, there is such a thing as legal gerrymandering. Gerrymandering by political party does not face much of anything in the way of legal repercussions. However, that was not the case here. The court’s three-person panel ruled that the districting was done with the intent and purpose of depriving Latino voters of the ability to elect candidates of their choice.

Texas argued that this could not possibly be the case. After all, the maps were redrawn in 2011-right back when the VRA required Texas to submit voting laws for preclearance due to a history of discrimination-and immediately challenged in court. They lost in court, ruled to be discriminatory, and the court itself redrew the maps. How, asked Texas, could maps drawn by a court be discriminatory?

The answer, according to the court, was that the court in 2011 was essentially forced to do a rush job-and said as much in their ruling. After the original maps were found unconstitutional, both parties offered many compromise plans between them-usually based to some degree on the original maps. Faced with time pressures and an upcoming election that couldn’t proceed without the maps, the court accepted one of these compromises but acknowledged that it only was making a preliminary decision as it had very little time to evaluate the incredibly complicated question of whether a district was drawn in a way that limited the rights of a particular race. Then, in 2013-after the VRA was neutered-a new districting scheme very close to the original scheme-although it implemented parts of the altered version the Court made-was implemented by Texas.

This meant, according to the recent court ruling, that while one district got a pass for following the court’s provisions, most of the districts carried over the discriminatory intent of the original 2011 districts. With this in mind, the ruling required Texas to swiftly change their districts into ones that were not racially discriminatory.

The Effect of Justice Alito’s Order

The stay throws a monkey wrench in the proceedings. However, despite some worrying that the order is an indication that the Supreme Court will overrule the lower court ruling, this is unlikely to be the case. Not only is the order Justice Alito acting on his own, likely to allow the other Supreme Court Justices time to look over the case, the order is also very temporary-only lasting until September 5th after the Supreme Court receives filings from civil rights groups.

What the order does imply is that the Supreme Court will hear this case and decide one way or another. At a minimum, this means that any action on these districts will be delayed for a few months minimum-perhaps even allowing the districts to remain in effect for the 2018 elections. This has the unfortunate side effect of potentially leaving minority voters underrepresented for another full year-an incredible injustice. This stay is early stages for the Supreme Court’s approach here. We won’t know the full extent of what they will do for some time. At this point we can only wait and see if Justice Alito’s order is a temporary roadblock or the end of the line.