MBA president issues statement on executive orders

Thursday, Feb. 9, 2017
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MBA President Jeffrey N. Catalano

When the Massachusetts Bar Association was incorporated in 1910, it adopted the motto "Fiat Justitia" -- Let Justice be Done. Over the course of the MBA's 100 year existence, we have been called upon to live up to that creed. At various times, we have spoken on matters of great importance to our jurisprudential system and the rights of others under the state and federal constitutions. Some matters were controversial at the time, but history has looked favorably upon our actions on those occasions. As this state's largest bar association, we have always understood that apathy is not an option in matters of justice. That is because unchecked infringements on the rights of one diminishes us all.

We are now presented with another occasion to act arising out of recent presidential executive orders (EO) relating to immigration. We do so humbly appreciating the words of Martin Luther King Jr. who said, "Even when pressed by the demands of inner truth, men do not easily assume the task of opposing their government's policy."

Yet, in a state whose constitution served as the model for the U.S. Constitution, it is particularly incumbent upon this bar association to be a bulwark against any threats to due process rights under both constitutions. These threats arise when actions are taken that may deport or detain people without a fair hearing; or that may separate mothers from children, such as in the New Bedford factory sweeps; or that unfairly discriminate against or burden people seeking refuge on our shores.

Accordingly, the MBA is proud to be the first state bar to pass a historic Immigration Resolution reaffirming our support for the due process and constitutional rights of those who are subjected to deportation or detention under new EOs. This Resolution, proposed by the MBA's Richard Cole, received the overwhelming support of our section councils, county bars and affinity bars, and the House of Delegates at our meeting on January 26, 2017.

It endorses actions by our governments to "[e]nsure that appropriate legal measures are taken to prevent and prohibit any discriminatory immigration-related enforcement practices by federal, state, or local law enforcement officials or agents that target or profile persons based on their race, ethnicity, national origin, religion, sexual orientation, gender identity or gender expression." In addition, the Resolution endorses "immigration enforcement programs that . . . prevent expansive detentions or deportations that result in family separations and negatively impact the education of students."

Following that Resolution, the MBA provided a Declaration in support of the commonwealth's motion in federal District Court to extend the temporary restraining order on the ban due to harm to the commonwealth and its residents. The Declaration I drafted with MBA Chief Legal Counsel Martin Healy expressed the concern that the EO would cause unfair discrimination and detrimentally impact foreign attorneys practicing here, as well as law firms that represent multi-national companies, and Massachusetts law schools with international faculty and students.

This week the MBA, under the leadership of Kevin Curtin, became the only state bar association to co-sponsor the American Bar Association's Resolution urging that the executive branch ensure that any executive orders concerning border security, immigration enforcement and terrorism be within the bounds of laws, treaties and other agreements.

Sometimes these occasions to act seem laden with partisanship, but that is never the MBA's motivation. And, the MBA must not let any such misperception deter us in our pursuit of the overarching goal of reaffirming our rights, regardless of which party is in power.

Underlying all of our measures is confidence in the nobility of our intentions to protect the unalienable rights of everyone. While national security is a compelling government interest, there is also much at risk if we do not challenge arbitrary and discriminatory actions against our most vulnerable people by our highest authorities.

Throughout our efforts, we followed an orderly and fair process that obtained overwhelming consensus. We are very honored by the wide-spread praise we have received for our work. We realize that this feeling may not be unanimous. However, this great bar association has an opportunity to demonstrate that what unites us is far stronger than that which divides us. And that which must unite us was eloquently stated by Chief Justice Edward F. Hennessy of the Supreme Judicial Court when he addressed the MBA in 1986:

[W]e are becoming an increasingly pluralistic nation. Of all things that threaten us, I think racial, religious and ethnic hatred is the most clear and present danger to our country, particularly as we observe the horror of terrorism in other nations ...

Wouldn't it be a great thing if the lawyers of America were to become a permanent, outspoken cadre for fairness, equality, and decency for all persons and all groups, and against bigotry and discrimination.

Thirty years later, the MBA is again prepared to continue its most important mission of ensuring that "Justice be Done" -- always and in every matter.

Jeffrey N. Catalano
MBA President

This statement was also sent directly to all MBA members via email on Feb. 10.