Do we still have federal statutes that refer to "habitual drunkards"?
Anyone so labelled isn't eligible for cancellation or voluntary departure in deportation (removal) proceedings. Judge Reinhardt authors a majority opinion today holding that this statute violates the Equal Protection Clause. The way he frames the issue is this: "[I]s it rational for the government to find that
people with chronic alcoholism are morally bad people solely
because of their disease?
The answer is no."
Judge Clifton dissents. He thinks the statute is fine. Plus, he begins his dissent with a point about how the issue was raised, saying: "The words 'equal protection' did not appear in the
opening brief filed on behalf of Petitioner Solomon Ledezma-Cosino.
Given that, it is not surprising that they did not
appear in the government’s answering brief, either. Ledezma
did not file a reply brief. So how did the issue arise?
The argument deemed persuasive in the majority opinion
is an argument of the majority’s own creation. Ledezma did
not make that argument until urged to do so by the majority
at oral argument and via a subsequent order for supplemental
briefing. Perhaps that pride of authorship helps to explain
why the majority finds the argument persuasive, despite its
obvious and multiple flaws."
Judge Reinhardt's majority opinion is joined by a district judge sitting by designation.
I don't think you've heard the last word about this case. Because votes en banc and/or for review by Supreme Court seem likely to me.