Wednesday, July 29, 2015
Pepperdine's Jim Gash has been working closely with the Ugandan Judiciary to develop and implement a system of plea bargaining in Uganda with the hopes of improving their criminal justice system and reducing the number of prisoners sitting in prison awaiting trial (sometimes as long as five years). The idea grew out of a paper two Pepperdine Law students had written for a Ugandan judge while the students were clerking for him several years ago.
I recently had the privilege of accompanying Jim on his 17th trip to Uganda in the last five years. Other participants included current and former prosecutors, public defenders, other lawyers, a current state and a current federal judge, and Pepperdine students who were spending the summer in externships in Uganda and Rwanda. The first week of the trip, I felt like a first year associate as we put in 70 hours or so, including trips to four prisons and one juvenile remand home. At the prisons, we worked in teams of an American attorney, a Ugandan defense attorney (much of the time), Pepperdine students, and Ugandan Christian University students meeting with clients in an attempt to work plea deals. You can read more about the trip and Pepperdine's work in Uganda on Jim blog, Throwing Starfish.
I greatly appreciated Jim's invitation. It was just my third trip to Uganda, and his experience and contacts will greatly enhance the experience of University of Oklahoma law students and alums as we continue our work in northern Uganda with Sr. Rosemary Nyirumbe, St. Monica's Vocational School, and Gulu University.
Friday, July 24, 2015
Former Oklahoma State Representative, Rebecca Hamilton (a pro-life Democrat), hits it out of the ballpark in giving advice to anyone wishing to engage in pro-life work. It really applies to anyone desiring to make a difference in the public square.
The beginning of indifference to the wiles of greed, power, sex, flattery, lies and manipulation that you will find in the political arena is humility, and the beginning of true humility is understanding that you are saved by grace and that is none of yourself. It is all from Him.
If you are an instrument — if you are His instrument — He will use you to save lives. You will do good. But if you cling to your own understanding and try to serve the dual masters of your own desires and His will, you will do well, and that only for yourself.
Once you have let God put you through the spiritual boot camp of facing your sins, you will be ready for maintenance. My own recipe when I was in office was to pray the Rosary every day, go to Mass as often as I could, go to confession every week — although this can be problematic with some priests, so you may have to go monthly if your pastor gets upset by weekly confessions — and read the Bible every day. I usually read the Bible through in a year and a half.
There are other ways to keep yourself in spiritual shape. I have since found that just sitting with Jesus in the Eucharist is a wonderfully healing experience."
Thursday, July 23, 2015
As we look for ways to strengthen marriage in the United States, my daughter, Michelle Scaperlanda McWay, has an excellent article in Verily, entitled "What I Learned About Marriage by Hiking the Camino with My Husband"
Tuesday, May 26, 2015
The Order enjoining the Obama administration from implementing DAPA (granting temporary legalized status to as many as 4.3 million persons residing in the United States without authorization) will remain in force until after the 5th Circuit Court of Appeals has a chance to decide the merits of the case.
After President Obama announced a program (DAPA) "[a]llowing parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years ... provided they have lived in the United States continuously since January 1, 2010, and pass required background checks." If implemented, this action would grant temporary legal status to up to 4.3 persons residing in the United States without legal authorization. Texas and 25 other states sued in U.S. District Court in Texas to set aside the administration's action on the grounds that a) the administration failed to follow the rulemaking procedures set out on the Administrative Procedures Act (the APA) and that the President had violated the separation of powers by usurpsing Congress' legislative authority.
The Disctrict Court enjoined implementation of the program and held that the Obama administration had violated the APA. It did not rule on the constitutional grounds, but it was pretty clear from the Court's ruling that if forced to reach the constitutional issues, it would conclude that the administration had acted unconstitutionally.
Today the 5th Circuit denied the Obama administration's request to lift the stay. It will hear the merits of the administration's appeal in July, but its opinion today gives us clues to how it will approach the merits. The administration should not be encouraged. Here are a few snippets:
Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the Secretary’s decision—at least temporarily— not to enforce the immigration laws as to a class of what he deems to be low-priority aliens. If that were all DAPA involved, we would have a different case. DAPA’s version of deferred action, however, is more than nonenforcement: It is the affirmative act of conferring “lawful presence” on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.
“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’”Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification.
[N]or does deferred action pursuant to DAPA mean merely that “no action will thereafter be taken to proceed against an apparently deportable alien.” Under DAPA, “[d]eferred action . . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States,” a change in designation that confers eligibility for federal and state benefits on a class of aliens who would not otherwise qualify.
[W]e would expect to find an explicit delegation of authority to implement DAPA—a program that makes 4.3 million otherwise removable aliens eligible for lawful presence, work authorization, and associated benefits—but no such provision exists.
The Secretary “direct[ed] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion,”and there was evidence that the DACA application process itself did not allow for discretion, regardless of the approval rate.
DAPA modifies substantive rights and interests—conferring lawful presence on 500,000 illegal aliens in Texas forces the state to choose between spending millions of dollars to subsidize driver’s licenses and changing its law.
Thursday, February 19, 2015
As I have written elsewhere, I favor comprehensive immigration reform, including some form of amnesty for many of the 11-12 million people currently residing in the United States without authorization. But, a formal repreive - even a temporary one - for those residing here illegally must, under our Constitution, come via legislative action not executive fiat. Last November, frustrated by congressional impasse, President Obama directed Homeland Security to give a formal 3 year repreive (called DAPA) to 4 to 5 million persons living in the United States without authorization. It is my assessment that this action and subsequent action by the Secretary of Homeland Security amounted to unconstitutional legislating by the Executive (I may elaborate in a later post).
26 states sued to enjoin the enforcement of DAPA, and this past Monday a federal judge granted a preliminary injunction halting the implementation of DAPA. In a circumspect opinion, the judge ruled that Homeland Security failed to comply with the notice and comment requirements of the Adminstrative Procedures Act. The court very properly declined to address the constitutional separation of powers issues at the preliminary injunction stage because "[j]udging the constitutionality of action taken by a coequal branch is a 'grave' and 'delicate duty' that the federal judiciary is called on to perform. ... if there is a non-constitutional ground upon which to adjudge the case, 'it is a well-established principle governing the prudent exercise of this Court's jurisdiction that normally the Court will not decide a constitutional question.'"
Based upon its conclusion (rightly I think) that the administration engaged in substantive rulemaking rather than prosecutorial discretion, I have little doubt that this court will find a separation of powers violation if it reaches the constitutional issue, but I applaud the judge's efforts to avoid the constitutional issue.
Tuesday, December 16, 2014
Wednesday, December 3, 2014
Although I favor comprehensive immigration reforms, including relief for many of those persons living and working in the United States in an undocumented status, I think the President unconstitutionally crossed the line between prosecutorial discretion (an Executive function) and policy making (a legislative function) when he signed an Executive Order, which will allow several million undocumented persons to remain in the United States. For my reasoning, see this post on Aleteia.
Thursday, November 13, 2014
Join us tomorrow for a symposium titled Chae Chang Ping v. U.S.: 125 Years of Immigration's Plenary Power Doctrine hosted by the Oklahoma Law Review. The symposium will be held in the Bell Courtroom of the law school from 9:30 to 12:30 on Friday, Nov. 14. CLE credit is available. Speakers include Rose Cuison-Villazor, Kevin Johnson, David Martin, Margaret Taylor, and yours truly. Unfortunately a cancelled flight will keep Victor Romero from joining us.
Monday, September 22, 2014
Thousands of faithful and faithfilled Catholics along with members of other Christian faiths attended a Holy Hour and Eucharistic Procession at St. Francis Church in OKC yesterday afternoon to pray for Oklahoma City as a group of satanists prepared to hold a public black mass (sans consecrated host) at the OKC Civic Center. As reported by Anamaria Scaperlanda Biddick, "Archbishop Coakley said during the Eucharistic Holy Hour and outdoor Eucharistic procession that he and several bishops, dozens of priests and some 3,000 lay persons 'gather not to protest.' He urged attendees to 'put aside the outrage,' and instead 'adore, and listen to the holy Lord, and open our hearts to the promptings of the spirit.' It was a beautiful and reverant event reminding Catholics of the Lord's presence in the Eucharist, a fact that even the satanists seem to understand.
In recent column, Archbishop Coakley continued to urge people to stay away from the Civic Center before and during the staging of the black mass: "I am aware that other groups are planning to show their opposition to the blasphemous event that evening at the Civic Center. I urgently ask everyone to avoid confrontations with those who might oppose them. Our witness ought to be reverent, respectful and peaceful."
In another show of disobedience to the local ordinary, the schismatic SSPX was one of the "other groups" who ventured downtown to the Civic Center. Their presence, along with other groups, completely changed the narrative as it played out on local television.
The Archbishop's focus was on reverant prayer, Christian unity in Christ's body, and continued conversion of those attending the Holy Hour in addition to conversion of those staging the blasphemous event. The protests by SSPX and others at the Civic Center allowed the media to frame the narrative as one of clashing First Amendment rights - the free speech rights of the protestors against the religious freedom rights of the satanists.
Lost in this narrative was the authentic Catholic response: 1) a belief that Christ really is present in the Eucharist, 2) the devil, evil, and demonic forces are real and are dangerous to people and communities who open themselves up to these forces, 3) through Christ's passion, death, and resurrection, final victory, but skirmishes remain as long as this life endures, and 4) our response is prayer, the Eucharistic, and continued conversion and not clash of modern rights.
FYI, 88 people bought tickets to the black mass and 42 of those attended. Please pray for their souls. Many have told me that the Catholic Church should have just ignored this event because by opposing it and responding to it, it received much more media attention than it otherwise would have received. My response: If this had been a blasphemous b-movie, I would have agreed. But, as the Archbishop said, there is a very real danger to a community because "satanic ritual invokes powers of evil and invites them into our community."
Update: Here is Archbishop Coakley's homily given during the Holy Hour.
Saturday, September 20, 2014