Tag Archives: 5th U.S. Circuit Court of Appeals

Refining The Law Because Of Technology

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For those of us who grew up before the age of computers and cell phones, a lot of what is currently happening in technology and being created electronically is very foreign. These changes in technology are also impacting our laws. Being tracked by your cell phone is nothing new. Back in the day when your cell phone looked like something you would use to call in an air strike, when you left one calling zone and entered another, you got a welcoming phone call. Even back then they knew where you were if you carried a cell phone (then known as a car phone).

On Wednesday, Just the News posted an article about how the location information on cell phones can be used.

The article reports:

Two federal appeals courts have taken starkly different views on one of the government ‘s newer electronic dragnet tools – geofence warrants that track people via their cell phones – setting up a likely showdown before the U.S. Supreme Court that could define privacy in the digital era for decades to come.

Last week, the 5th U.S. Circuit Court of Appeals ruled that such geofence warrants are “categorically prohibited by the Fourth Amendment” protection against unlawful search and seizure. The judges concluded the mass gathering of Americans’ cell phone geographic locations to identify a single suspect in a postal worker’s armed robbery amounted to the sort of general warrant that the Founding Fathers steadfastly rejected at America’s birth as their new country broke from British rule.

“It is undeniable that general warrants are plainly unconstitutional,” that appeals court ruled. The 5th Circuit oversees appeals from Louisiana, Mississippi, and Texas federal district courts.

A few states over, the 4th U.S. Circuit of Appeals came to a different conclusion, ruling that when law enforcement gathers two hours of all a cell phone users’ records in Google’s database for a certain location near a crime it didn’t violate privacy because more than a half-billion cell phone users had opted to turn on the geo-tracking capabilities of their to make their apps work better. Such opt-ins, the 4th Circuit ruled, amounted to a waiver of privacy. The 4th Circuit oversees appeals from Maryland, Virginia, West Virginia, North Carolina, and South Carolina federal district courts.

The article concludes:

In other words, using a digital dragnet to search millions of Americans location records to identify an unknown assailant or two amounted to a fishing exercise tantamount to the “general warrants” the Constitution’s framers rejected handily two centuries earlier.

Google has revealed that the number of geo-warrants has gone from rare in 2016 to overwhelming – more than 10,000 annually – a decade later. The tech giant announced last year it was shutting down its ability to store all users’ geo location data in its own database known as Sensorvault and instead leaving it on each consumer’s cell phone where it must be obtained by individual warrant.

No matter how Google changes their practices, the breadth of digital searching that law enforcement can still do in 2024 from other vendors leaves most experts certain the issue of geofencing and tactics likely will be decided by the U.S. Supreme Court.

This is something to watch. How much privacy are Americans entitled to?

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Clearing The Way For Deportations

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On Friday, The Federalist posted an article about the Supreme Court’s decision regarding a loophole that allowed foreigners to avoid deportation proceedings by citing a paperwork technicality. The decision was 5-4. That is not surprising.

The article reports:

The case centered on three illegal immigrants: Moris Esmelis Campos-Chaves, an El Salvador native who entered the country illegally in 2005 through Texas; Varinder Singh, a man from India who illegally entered the U.S. in 2016 by “climbing over a fence” in California; and Mexico-native Raul Daniel Mendez-Colín, who illegally entered the U.S. in 2001 in Arizona.

The trio argued that their deportation notices did not meet the criteria for a proper notice as prescribed by the law.

Title 8 USC § 1229 (a) describes two types of notices. The first is a general initial notice to appear that shall include, among other specificities, a “time and place” for the proceeding. The second notice regards a “change or postponement in the time and place of such proceedings.” The Supreme Court previously ruled in 2021 that “this information must be provided in a single document in order to satisfy [the law].”

If an alien does not appear at his removal proceeding, the government has the authority to remove him. If the alien, however, can prove he did not receive the notice, he can seek to have the removal order rescinded.

The Supreme Court was technically hearing three separate cases, as one case stemmed from the 5th U.S. Circuit Court of Appeals that ruled in favor of the government while the other two, from the 9th Circuit, ruled in favor of the illegal immigrants.

The trio were ordered to be deported after they failed to appear at their deportation hearings. But the three illegal immigrants argued that the notices they received were improper since they initially lacked a specific date and time.

The article concludes:

Surely the burden is always on the government when dealing with the rights of citizens. But to claim that noncitizens — in this case people who knowingly broke the law and entered the country illegally — deserve the same right as an American to absolve themselves of the burden of proof is ludicrous.

Millions of illegal immigrants have flooded our border and overwhelmed not only Border Patrol, but the court system. The idea that these “noncitizens” should be allowed to stay in the country if the overwhelmed court system fails to provide a single document notifying them of their hearing is insanity.

The justices in the majority opinion were Justice Alito, Chief Justice Roberts, Justice Thomas, Justice Kavanaugh, and Justice Barrett. The justices in the minority were Justice Brown Jackson, Justice Sotomayor, Justice Gorsuch, and Justice Kagan.

At Least Some Of Our Constitution Still Works

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On Tuesday, Ed Morrissey at Hot Air posted an article about a recent ruling by the 5th Circuit Court of Appeals.

The article reports:

A U.S. appeals court on Monday said the White House could not require federal contractors to ensure that their workers are vaccinated against COVID-19 as a condition of government contracts.

The U.S. government has contracts with thousands of companies, and courts have said the issue could affect up to 20% of U.S. workers.

A panel of the 5th Circuit Court of Appeals voted 2-1 to uphold a lower court decision that blocked President Joe Biden’s September 2021 contractor vaccine executive order in those states after Louisiana, Indiana, and Mississippi brought suit to seek invalidation of the mandate.

The article also notes:

It’s important to remember that this case deals with private sector employees, not federal government workers. The executive branch does have the authority to set working conditions in its own workplaces, limited by the obvious laws (the Constitution especially) and the need to work within collective-bargaining contracts. In this mandate, Biden attempted to force private-sector companies that provide goods and services to the federal government to impose vaccination requirements on their own workforces, and claimed that the Procurement Act provided Biden with that authority and jurisdiction.

The article concludes:

By the way, the court never does get to one of the core issues in this mandate — the fact that the extant vaccines neither stop transmission nor uptake. They do have a demonstrated positive effect in minimizing acute and severe cases of COVID, but that’s not the issue in workplace vaccine requirements. The only reason to impose such an order would be to stop transmission of an infectious disease, which none of the vaccines actually do. The only effect is personal and individual, and so the choice should be personal as well — just as with the tobacco analogy the Fifth Circuit wisely uses for demonstration.

The administration is fighting a battle they will lose on multiple fronts, in other words. They can appeal this to the Supreme Court, but that’s likely to deliver the same result in an ironclad historical precedent. Unlike the Academia bailout, Biden has no real political interest in fighting this out with the Supreme Court, and thus we may have seen the last of this battle.

Please follow the link to read the entire article. The arguments made on both sides are very interesting.

Upholding The Constitution

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On Wednesday, The Epoch Times reported that a Federal Appeals Court has ruled that the Deferred Action for Childhood Arrivals (DACA) program is illegal.

The DACA program protects eligible immigrants who came to the United States when they were children from deportation. DACA gives undocumented immigrants: 1) protection from deportation, and 2) a work permit. The program requires that the DACA status and work permit be renewed every two years.

The article reports:

The ruling by the 5th Circuit Court of Appeals on Wednesday (pdf) affirms a decision in July 2021 by a Texas federal judge—U.S. District Judge Andrew Hanen—who declared the DACA program illegal and blocked new applications but kept the policy intact for current beneficiaries. The appeals court similarly left the DACA program intact for current beneficiaries, which means current DACA recipients can continue to file renewal applications.

The appeals court on Wednesday also sent the case back to Hanen to have him review a revised set of rules that the Biden administration announced in August, to determine its legality.

The Biden administration’s new final rule to “preserve and fortify” DACA codifies the existing policy, with limited changes, into federal regulation. It was subject to public comments as part of a formal rule-making process intended to improve its chances of surviving lawsuits challenging it. It’s set to be effective Oct. 31 to replace the 2012 Department of Homeland Security (DHS) memorandum that had created DACA.

The article explains the reason for the ruling:

Hanen, in his decision in July declaring DACA illegal, had stated that DACA goes against the Constitution given that Congress never provided the executive branch authorization to grant deportation reprieves to illegal immigrants in the United States.

Chief Judge Priscilla Richman of the 5th Circuit of Appeals wrote in the opinion on Wednesday: “The district court’s excellent opinion correctly identified fundamental substantive defects in the program. The DACA memorandum contracts significant parts of the [Immigration and Naturalization Act].”

She added: “DACA creates a new class of otherwise removable aliens who may obtain lawful presence, work authorization, and associated benefits. Congress determined which aliens can receive these benefits, and it did not include DACA recipients among them.

“We agree with the district court’s reasoning and its conclusions that the DACA Memorandum contravenes comprehensive statutory schemes for removal, allocation of lawful presence, and allocation of work authorization.”

Children (now adults) who were brought here illegally as young children may not have an understanding of what is actually their native language or understand their native culture. To send them back would be cruel. Let’s not add to the program, but let’s have compassion on those who have been here for ten years or more.

The Push Toward Mail-In Voting

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As has been said multiple times before, mail-in voting is different from absentee voting. Mail-in voting generally does not have the controls that absentee voting has to prevent voter fraud. There are court cases in various states right now to push for mail-in voting. One of those states is Texas.

On Friday, Hot Air reported the following:

The 5th U.S. Circuit Court of Appeals ruled against a lower court’s preliminary ruling that would have required the State of Texas to expand mail-in voting to all eligible registered voters. The Texas Democrat Party claimed that denying universal mail-in voting in Texas is age discrimination.

Texas allows mail-in voting for voters who are age 65 or older, voters who will be out of the county during the voting period, disabled or ill voters, and people incarcerated but eligible to vote. Absentee voting is allowed, as in other states. For absentee voting, a voter has to request a ballot. Democrats want to move to universal voting by mail, with registered voters receiving a ballot by mail automatically, without the step of requesting one.

The 5th U.S. Circuit Court didn’t agree with the Democrats:

The 5th Circuit’s majority said the state’s law did not violate the U.S. Constitution’s prohibition on age discrimination because it merely conferred an extra benefit on older residents, rather than limiting the right to vote for younger Texans.

“A law that makes it easier for others to vote does not abridge any person’s right to vote,” the majority wrote.

The article concludes:

The age discrimination part of this lawsuit is clearly malarkey. Democrats are just throwing everything against the wall in hopes that something will stick so that universal mail-in voting will come into play in Texas. The court rightly points out that no such argument can be made. If people can go shop at Walmart or a grocery store, they can go vote in person.

The lawsuit now goes back to the court of U.S. District Judge Fred Biery. In May, he ruled that all Texans can vote by mail because of the coronavirus pandemic. In June, however, the 5th Circuit blasted his ruling and blocked it. Biery is a Clinton appointee. It will fall upon Biery now to rule on the remaining issues in the lawsuit, including whether or not the Texas restrictions on mail-in voting violate equal protection guarantees.

Texas Attorney General Ken Paxton released a brief statement – “I am pleased that the 5th Circuit correctly upheld Texas’s vote-by-mail laws, and I commend the court for concluding that Texas’s decision to allow elderly voters to vote by mail does not violate the 26th Amendment.”

Stay tuned. This fight is ongoing in many states.