Daily Archives: June 26, 2017

Supreme Court Sets Up a Travel-Ban Punt

WMU-Cooley Law Professor Brendan Beery

Blog author, Constitutional Law expert, and WMU-Cooley Professor Brendan Beery explains in layman’s terms what the Supreme Court’s preliminary order in the travel-ban case really means and who it will most immediately affect. Professor Beery, a summa cum laude graduate of the law school, teaches Constitutional Law, Criminal Law, and Criminal Procedure at WMU-Cooley Law School, and is a frequent legal expert in the media.

It’s all about the numbers – or the dates, to be precise. Lawyers, pundits, and prognosticators will do a deep dive into what the Supreme Court’s preliminary order in the travel-ban case (agreeing to hear the case in October and allowing the Trump Administration to partially implement the ban in the meantime) means about the Court’s view of the ban’s legality. But the discerning reader can see what the Court (per Chief Justice Roberts, in all likelihood) is really up to. The Court is wriggling out of having to address the ban’s legality in the first place.

The Court’s ruling was a mixed bag for people from the six banned countries wishing to enter the United States. The Court kept in place a lower-court injunction forbidding Trump Administration officials from excluding people with close family ties or legitimate business or educational concerns involving travel to the United States. The bad news for opponents of the travel ban is that, because the Supreme Court lifted the injunction on part of the ban, it will now operate to bar entry into the U.S. by anybody without family or business ties here. That impact is leavened, of course, by the reality that very few people without family or business ties to the U.S. wanted to come here anyway. (In other words, this is not the total victory that Donald Trump will likely represent it to be.)

The people most immediately and directly harmed by the Court’s order are would-be refugees. Refugee designation alone will no longer entitle refugees from the six affected countries to entry into the U.S. They too will have to show some kind of family or business interest to get around the travel ban.

But here’s the rub: the travel ban (contained in Section 2(c) of Trump’s executive order) has an expiration date built into it. Trump’s stated purpose for imposing the travel ban (which lower courts called pretextual) was to give the federal government time to analyze other countries’ immigration controls, make findings of fact, allow other countries to respond, and then adopt appropriate screening protocols for use by federal agencies. No lower-court order stopped the administration from doing any of that while the travel ban portion of the executive order was being litigated.

Since the supposed purpose of the travel ban was to buy time to study a problem and implement solutions, the ban was only to last 90 days “from the effective date” of Trump’s executive order. The original effective date was March 16, so the ban would have lapsed by mid-June. Once that date approached, however, Trump issued a new directive purporting to amend the effective date; he said that the new effective date would be 72 hours after the injunction against his travel ban (the one imposed by lower federal courts for the last few months) was lifted.

It’s not clear that the Supreme Court has bought into Trump’s new effective date; the Court, without any prompting, ordered the parties to the lawsuit to draft arguments about whether the legality of the travel ban became moot on June 14 – the date the ban was originally to expire. The justices must be considering, then, whether Trump’s attempt to extend the ban was valid.

But notwithstanding the question whether the extension was valid, the Court did today lift the injunction against the travel ban – at least in part. That means that the clock starts ticking on Trump’s new 90-day time period on Thursday morning – 72 hours after the injunction was lifted. The Court is set to hear arguments in the case in early October. By then, just over 90 days will have elapsed, meaning that even under Trump’s new timetable, the ban will have expired yet again.

Look where that leaves us: whether the ban’s legality was rendered moot when it was originally set to expire (June 14) or by the expiration of the new timeline (in late September), by the time October rolls around, the Court will be in a position to say that the administration has had ample time to get its act together as to screening immigrants, every conceivable deadline for ending the ban has passed, and the case is moot. This assumes, of course, that the wild card in all this – Donald Trump – doesn’t try to change the effective date again by October, or issue a new executive order altogether. If he does that, though, the Court will likely lose its patience with him.

By inviting the parties to address the mootness issue without prompting, the Court clearly signaled that it will use the issue of mootness to avoid having to address the merits of the case. One can see why the Court would do that: were it to rule on the merits, the Court would have to address whether the sitting President was behaving lawlessly and whether he was acting with animus in discriminating against Muslims. While those are fair subjects for public debate, the Supreme Court usually likes to stay out of such unseemly political fights. By giving each side in the fight half a win and running out the clock, the Supreme Court has signaled what it is likely to do on the merits of the travel ban: punt (and hope that Trump’s mischief-making in this regard is at an end).

Watch Brendan Beery’s Salon.com interview.

Listen to Professor Beery’s interview on the Tom Sumner Program (Interview starts at 6:58).

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Rafael Diaz combines his love for the criminal justice system and the law

Rafael Diaz, a lieutenant with the Kalamazoo Department of Public Safety and a 2010 WMU-Cooley Law School graduate, knew from an early age that he wanted to go to law school. Every decision, from high school through college, was made to position himself for a career in the law.

But, as he was coming to the end of his time in college, he looked at law school again. Married, and with a young daughter, Diaz decided it was not the right time to make a commitment to law school.

“Life kind of creeps up on you,” he remembered. “I had to look at other things. I was volunteering for the Holland Police Department as a reserve police officer and wondered about what to do for work. I reasoned that, since I planned to be a prosecutor in the criminal justice system, what better way to learn about its inner workings than from that vantage point. Well, lo and behold, I really enjoyed it! I loved the police-citizen interactions and I loved the law at that level. So I thought to myself, well, I love law; I love law enforcement; I think I would like to be a police officer. So that’s exactly what I did.”

After five years at the Holland Police Department, Diaz joined Kalamazoo Public Safety in 2005, giving himself more time for family and the opportunity to dream about law school again.

Diaz learned that WMU-Cooley’s many scheduling options could make pursuing his dream possible. In 2007, he started law school at WMU-Cooley’s Lansing campus taking classes during the day, knowing that if his work schedule changed, he could continue by taking advantage of other scheduling options the law school offered.

WMU-Cooley graduate Rafael Diaz

“For a person who was on the streets doing night patrol, the fact that WMU-Cooley offered classes in the morning, afternoon, evening, and even on weekends, was fantastic,” said Diaz. “So many doors opened for me. I don’t really know of another way I could have really done it, but for WMU-Cooley’s scheduling options. As you can imagine, it was hard working nights as a patrol officer and balancing everything else, but the flexibility I was afforded in Public Safety and the opportunity to teach through a joint relationship between Public Safety and a local educational association, gave me the lift I needed to start law school.”

He continued to work with area high school students, teaching them what it might be like to be a police officer. He enjoyed working with the students, plus he found that this work schedule allowed him to attend evening classes and more time to study.

“The department really stood by me while I was in law school,” said Diaz. “The flexibility I received from work and law school, along with my family’s support and understanding, is how I got to where I am today.”WMU-Cooley graduate Rafael Diaz

Law school was tough, but all Diaz’ memories are positive. “My experience at WMU-Cooley was one of the best times of my life,” Diaz recalled. “Not only was I busy at work, I was busy in law school. I loved being challenged. I also met a lot of great people. I had a tremendous amount of interaction with people and have stayed in contact with many over the years and built lasting friendships.

“It might not have been the traditional approach,” smiled Diaz, “but it worked for me, and everything seemed to fall into place.”

For Diaz, the professors at WMU-Cooley stood out as exceptional teachers. They also made themselves available to help students.

“I have really grown an appreciation for their work and their care of the students,” said Diaz. “Coupled with the friendships and the relationships that I developed, law school was one of the best times ever. Even now I find time to stop by the law school just to say hello. I really loved my time at WMU-Cooley.”

How has a law degree helped in a career in law enforcement?

Diaz explained that his training and legal education have made him a better person, both personally and professionally.

“The law degree is what has broadened my eyes, my perspective, and my approach to so many different issues,” he stated. “I have gone up the ranks, and am now a lieutenant and I got there in a relatively short period of time. I believe it is because the work that I have done and the work that I can do is appreciated. By setting myself apart from other candidates, I have been allowed to progress quickly. It really is a wonderful intersection of my love of law enforcement and my love of law, and the practice of it as an attorney.

“WMU-Cooley set me up for success. They taught me how to look at a problem, any problem really, then apply specific set of skills to analyze the problem and come up with solutions, looking at many sides of an issue. Sometimes in law enforcement we get stuck in only seeing it from one side. That can lead to a lot of frustration when we only want certain outcomes.

“What law school has taught me to do is to examine things from all sides in different ways because people have different points of view. That’s very, very helpful. It gives you a greater understanding and compassion for different views. We may agree to disagree at the end, and that’s OK, but in examining it from all different angles we are able to really see those points and then mesh it in with what the law says about how we have to behave ourselves in society. Really, it is an academic exercise in understanding different folks. For me, that has been huge.”

Family Makes Perfect

Diaz knows that he owes much to the unconditional support and love of his family.

“I can go back to when I was registering for WMU-Cooley Law School,” recalled Diaz. “At the time, I was working as a patrol officer, assigned a night shift. I sat down with my wife and we talked about it. We knew that it was going to be a life-changing, life-altering event for several years. It basically came down to this, my wife said, ‘If you’re willing to do it and put the work in, I am willing to do everything else, and we will get it done.’ I knew right then that I had the support of my wife.”

But Diaz also had two children to factor into the equation.

“I asked my daughter Alana, who is now 20 and a junior at Western Michigan University, and my son, who is going to be 14, ‘How do you think or feel about me taking this on?’  I said, ‘I am going to need a lot of time to study.’ They both looked at me and said, ‘Dad, if that’s what you want to do, let’s do it!’ ”

Even with the full support of his family, Diaz knew there would times where his family would suffer.

“What I tried to do was balance life as much as I could,” suggested Diaz. “Anything that I had outside of school, work, and family was gone, and I still haven’t picked up the game of golf since, but that’s OK. I want dinner time with my family. I encourage anybody who is looking at law school to carve out time for your family, regardless of how busy you are at work or school. In my mind, if it doesn’t work with family, then it’s all wasted.

“During family time, you put the books to the side, sit down, eat dinner, or watch a show, then when they go to bed, get back at it. I tell you what, I got a lot of strength from my family. Even during those years, I coached my daughter in softball and soccer and my son in baseball and soccer, because I love coaching. You can really tackle anything when you have that family support.

“I was truly blessed because my wife, my daughter, my son have always stood behind me and given me pushes, like, ‘Hey dad shouldn’t you be studying? Why don’t you get after it?’ I am thankful every day for the tremendous support of my family, and at some level I believe it was good for them, modeling good study habits, punctuality, and dedication.

“So, it is a two-way street, and we have both benefited tremendously.”

A Day in the Life of Rafael Diaz

With Public Safety, Diaz believes he has one of the most exciting and rewarding careers in the world.

“In 2008, I had a great opportunity to take a class in crisis intervention and learn how to help mentally ill subjects in crisis,” said Diaz. “The concept was that you can de-escalate a situation and seek positive outcomes by having relationships in the community. We now have a crisis intervention team here in Kalamazoo where we link all the necessary resources. We regularly train large classes, 40 officers at a time, and have built a crisis intervention team trained in mental health issues, coupled with de-escalation training, which reduces the probability for violence.”

The efforts have, over the years, improved the treatment and care of the individuals in crisis.

“Those are really the hallmarks of a successful program,” stated Diaz. “We have even been taking our training methods across the state, including a jail diversion program. The overarching principle is, ‘What is the right thing to do?’ We can work on all the other things that go along with that, so long as we have an eye towards getting a good outcome. This model of policing is not only catching fire statewide, but nationally. We are touching lives and that’s really exciting work.”

Diaz may have taken the road less traveled to get him to where he is today, but he has succeeded at every turn, proving to one and all that there is more than one pathway to success.

This story is also published in the Summer 2017 Benchmark. CLICK HERE to see the story and to read about other interesting WMU-Cooley Law School graduates. 

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