Our democracy has been attacked from outside, by Russia, and Americans are rightly concerned, demanding investigations and answers to a growing number of questions.

But what are we doing to democracy ourselves?

The Senate recently confirmed Neil Gorsuch to become an associate justice on the Supreme Court and fill the vacancy left by the late Justice Antonin Scalia.

That vacancy persisted only because the right to fill a Supreme Court seat was denied a sitting president—for the first time in American history—when Senate Majority Leader Mitch McConnell refused to hold hearings for President Barack Obama's nominee Merrick Garland and to accept the consequences of the 2012 presidential election. In our nation’s history, there had previously been two dozen Supreme Court vacancies in a president’s last year in office, and twenty-one of twenty-four nominees had been confirmed, but never before had the Senate failed to hold hearings, let alone vote on a nominee.

And so, in what some have called a political masterstroke, McConnell succeeded in restoring and preserving the Court's conservative voting majority that existed before Scalia's death.

With our horse-race political journalism, it’s easy to get swept up in who won, who lost and who outplayed whom. But let’s not lose sight of the larger implications. McConnell didn't just outmaneuver the Democrats. He outmaneuvered democracy.

This isn't about Judge Gorsuch—just as what happened to Judge Garland wasn't about him—and this isn’t about partisan politics. This is about what we are doing to our own democratic institutions.

Democracy is more fragile than we would like to admit. As Timothy Snyder has noted in his latest book, “On Tyranny: Twenty Lessons From the Twentieth Century,” democracies collapsed when “[a] party emboldened by a favorable election or motivated by ideology, or both, . . . change[d] the system from within.”

Is our democracy inherently stronger than those that failed? I hope so. But surely its survival will depend on our willingness to protect our democratic institutions and constitutional rules, not game them when it suits us.

So this is a time for deep reflection about the state of our democracy and the integrity of the Supreme Court that will be questioned whenever Justice Gorsuch rules with the majority in a 5 to 4 decision.

Democracy isn't a win-at-all costs, no-holds-barred game. If you don't play by the rules, the game is over.

Imagine a baseball game where a batter gets a hit and, say, ignores runs straight to third base. Or imagine a game of Monopoly where a player, say, draws the “Go to Jail” card but refuses to accept its consequences. Those games can’t proceed without agreement on what is permitted and what is not.

It’s tempting to think of the change in the rules that led to Gorsuch’s nomination and confirmation as an aberration, but these kinds of changes (actual and proposed) have lately become “normalized.”

Just look at what this century has brought us: a Supreme Court decision in Bush v. Gore that ended the 2000 presidential election in George W. Bush's favor, but somehow wasn’t meant to set a precedent for future cases; most recently, a Republican-controlled legislature in North Carolina that passed laws to limit incoming Democratic Governor Roy Cooper’s authority after he defeated Republican Governor Pat McCrory, and senators who argued that if Hillary Clinton were to win the election, the Senate should refuse to confirm any of her nominees to the Supreme Court. And let’s not forget the myriad states that have been imposing voter identification requirements just to keep Americans from voting.

I don’t know how long America can survive when we take the basic ground rules of our democracy so lightly. I wish there were a public clamor to look into this clear and present threat, because it’s not just about Russia—it’s about America, too.

Date

Tuesday, April 18, 2017 - 9:45am

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This is not Arizona. But when it comes to police policies on immigrants across California, you wouldn’t know it.
 

The ACLU of California recently discovered a mass-produced policy, purchased by many local law enforcement agencies, including some in cities that have declared themselves sanctuaries, and that contain illegal guidelines allowing officers to discriminate against immigrants. It authorizes local police to detain and arrest people for suspected federal immigration violations based on sweeping factors like English proficiency, “immigration documentation” and even in some cases, race, color or national origin. 

The policy sounds a lot like Arizona’s infamous SB 1070 and is currently operating in our own backyards, in cities like:

The police departments purchased the policy from Lexipol, a private vendor of standardized policy language.

As we explain in a letter to Lexipol, the policy violates both California law and the Fourth Amendment. Contrary to the rulings of several courts, the policy suggests that local police may detain someone for the federal crime of “improper entry” if its review of the person’s immigration documents leads them to suspect the person’s presence in the country is unauthorized.

The policy also instructs police officers that they can rely on how well a person speaks English to arrive at reasonable suspicion that the person entered the country illegally. This could make for a lot of suspects – according to a U.S. Census Bureau survey, nearly 19% of  California’s population has limited English proficiency.

We’ve seen such policies in action before, so we know that they lead to racial profiling and wrongful arrests, compromising core constitutional rights and undermining trust between law enforcement officials and the communities they serve. That’s why the ACLU of California calls on Lexipol, and all the cities in California that have adopted it, to retract and replace its defective policy language. And it’s why we continue to call on lawmakers to pass Senate Bill 54.

SB 54 will ban local police from performing the functions of federal immigration officers and ensure that state and local resources are not used to fuel the federal government’s plans for mass deportations. The Trump administration seeks to convert local law enforcement agents into immigration agents in order to carry out a vast deportation dragnet. The fact that numerous California police departments have policies empowering their officers to make unlawful and discriminatory arrests in the field for immigration offenses -- and to transfer the people they arrest to ICE or CBP custody after doing so -- demonstrates that SB 54 is needed now more than ever.

This tangled-up enforcement system is neither fair nor good for public safety. California lawmakers should pass SB 54 to make clear, once and for all, that the job of state and local law enforcement is not to enforce federal immigration law, but to protect the safety and well-being of all Californians. 

And Lexipol should not only strike the illegal language from its policies, it should notify all its clients with purchased policies to do the same.

 

Date

Friday, April 14, 2017 - 2:00pm

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