The Real Insidious Part of Dershowitz’s Impeachment Defense

VIKRAM DAVID AMAR, EVAN CAMINKER

Illinois law dean Vikram David Amar and Michigan Law dean emeritus Evan Caminker discuss Harvard Law professor Alan Dershowitz’s explanation of why he stands (virtually) alone in his views on impeachment—that all the scholars who disagree with him are biased partisans. Amar and Caminker explain why this claim is so insidious, with effects lasting well beyond the span of the current presidency.

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United States v. Gonzalez-Fierro

Docket: 18-2168

Opinion Date: February 4, 2020

Judge: David M. Ebel

Areas of Law: Constitutional Law, Criminal Law, Immigration Law

Defendant Rodolfo Gonzalez-Fierro, a Mexican citizen, challenged his conviction for unlawfully re-entering the United States after a prior removal. That conviction was based in part on Gonzalez-Fierro’s prior expedited removal from the United States in 2009. Due process required that, before the United States can use a defendant’s prior removal to prove a 8 U.S.C. 1326(a) charge, “there must be some meaningful review” of the prior administrative removal proceeding. In light of that, Congress provided a mechanism in section 1326(d), for a defendant charged with a section 1326(a) offense to challenge the fundamental fairness of his prior unreviewed removal. But, pursuant to 8 U.S.C. 1225(b)(1)(D), the section 1326(d) mechanism applied only to prior formal removal orders, and not to prior expedited removal orders like Gonzalez-Fierro’s. "Expedited removals apply to undocumented aliens apprehended at or near the border soon after unlawfully entering the United States. Different from formal removals, expedited removals are streamlined - generally there is no hearing, no administrative appeal, and no judicial review before an expedited removal order is executed." Applying the Supreme Court’s reasoning in United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the Tenth Circuit concluded section 1225(b)(1)(D) was unconstitutional because it deprives a defendant like Gonzalez-Fierro of due process. Without section 1225(b)(1)(D), the Court reviewed Gonzalez-Fierro's 2009 expedited removal order, and concluded he failed to establish that removal was fundamentally unfair. On that basis, the Court affirmed Gonzalez-Fierro's section 1326(a) conviction.

Aguilar v. Management & Training

Docket: 17-2198

Opinion Date: February 4, 2020

Judge: Mortiz

Areas of Law: Labor & Employment Law

A group of 122 detention officers who work or worked at Otero County Prison near Chaparral, New Mexico, alleged that their employer, Management & Training Corporation (MTC), failed to pay them for certain activities that they engaged in before they arrived at, when they arrived at, and after they left their posts within the prison. According to the officers, these activities constituted compensable work, so MTC’s failure to pay violated both the Fair Labor Standards Act (FLSA) of 1938, and the New Mexico Minimum Wage Act. The Tenth Circuit concurred that in the context presented, the officers' activities constituted compensable work. The Court rejected MTC's arguments that : (1) the time the officers devoted to these activities was de minimis; and (2) it need not pay the officers for these activities because it did not know the officers were engaging in them. Additionally, the Court concluded that the officers’ rounding claim survived summary judgment. As such, the district court's order awarding summary judgment to MTC, and remanded for further proceedings.