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June 18, 2019

By Playing Politics with DACA, Trump is Toying With Innocent Lives

[Cross-posted from the Globe Post]

Announced in 2012, Deferred Action for Childhood Arrivals (DACA) is one of the signature policies of the Barack Obama administration. It provided temporary relief, including work authorization, for noncitizens brought to the United States as children. Implemented within months of the 2012 election, the policy followed several years of record-setting numbers of removals and the failure of Congress to pass immigration reform.

Making immigration enforcement a cornerstone of his presidential campaign like no other in modern U.S. history, Donald J. Trump promised to dismantle DACA. That policy, however, for the most part, remains in place. Although President Trump blames the courts for barring his efforts to rescind DACA, the true reason is simpler and more sinister: the Trump administration continues to benefit from playing politics with immigrant lives.

The Supreme Court may well soon decide whether to review the lower court rulings halting DACA’s rescission. But even if the Court takes up the cases, it could still take a year or more for a final resolution. Lives will hang in the balance.

Trump’s Aggressive Immigration Measures

Exemplified by the advocacy for a wall along the U.S./Mexico border and the Muslim ban, Trump’s administration has put into place numerous aggressive immigration enforcement measures. Such measures also include ending Temporary Protected Status for Salvadorans, Haitians, Hondurans, Nicaraguans, and others, mass detention of Central Americans seeking asylum, and family separation.

The president also has sought to restrict legal immigration, specifically denigrating lawful family-based immigration as “chain migration” and calling for a new immigration system favoring skilled, educated, and English-speaking immigrants.

President Trump unquestionably sees it as politically beneficial to inject tough immigration talk into the news and, consequently, he often does so. DACA is just another political pawn in the larger immigration game.

DACA and Dreamers

Within days of taking office, President Trump acted on immigration, issuing the first executive order known as the “Muslim ban” and orders on border security and interior immigration enforcement.

Action on DACA took longer, however. Politics, pure and simple, explain the delay. While DACA’s death was rumored for months, a bipartisan group of members of Congress advocated maintaining the policy, which benefited a relatively popular group of immigrants who were in this country without authorization due to no fault of their own.

The political allure of the Dreamers can be seen in the many versions of an immigration bill known as the DREAM Act, which had the support of prominent Republicans as well as Democrats, over more than a decade.

Finally, in September 2017, then-Attorney General Jeff Sessions – not President Trump – announced the rescission of DACA. Yet DACA remains. Courts halted the rescission, questioning the reasoning offered by the Trump administration for rescinding the policy.

Courts Halt DACA Rescission

The U.S. Court of Appeals for the Ninth Circuit found that, because the administration’s claim that DACA was not lawful and simply wrong, the rescission was likely to be found “arbitrary and capricious” and in violation of the Administrative Procedure Act. It allowed an injunction barring DACA’s rescission to remain in place. A couple of weeks ago, the Fourth Circuit found that the decision to rescind DACA “was not adequately explained and thus was arbitrary and capricious.”

The Trump administration could quickly remedy what the courts said was missing: a rational explanation for rescinding the policy. The administration, for example, could say that Congress is the most appropriate branch to address the legal status of the DACA recipients. Importantly, no court has held that DACA is required by the immigration laws or that there is some other legal right to DACA relief. Rather, the courts have held that the Trump administration has not adequately explained its reasoning for dismantling DACA, an easily cured defect.

The Trump administration has not offered an adequate explanation because of politics. The young noncitizens who benefited from DACA are politically active and popular. There is little political upside to the administration to push to end DACA, which has some Republican support. The political benefits of blaming “liberal” courts for keeping DACA alive outweigh any benefits of actually abolishing the policy. In this vein, Trump frequently blames the courts and Congress for sidetracking his efforts to build the border wall, punish “sanctuary cities,” and the like.

DACA recipients and their allies have been active. Immigrant advocates have allowed their voices to be heard. Legal challenges to the DACA rescission, and many other Trump policies, have been largely successful. In early June, the U.S. House of Representatives passed the DREAM and Promise Act of 2019, which would provide relief to young undocumented immigrants, DACA recipients, and holders of Temporary Protected Status.

Human Impact

Immigration is a powerful political issue for President Trump. Although it energizes his base, the administration’s tough immigration stands have human impacts. The efforts to rescind DACA have frightened hundreds of thousands of DACA recipients who see their ability to remain in the United States – the only nation that many of them have ever truly known – placed in question.

Although the courts have required current DACA recipients to renew their relief, some recipients declined to renew, fearing possible removal if they sought any kind of relief from the U.S. government. In addition, the court injunctions did not require the administration to accept any new DACA applications. Thus, even though DACA has not been rescinded, it has been limited, and young immigrants have been harmed.

DACA unquestionably is an important issue. Sadly, the administration continues to play politics with peoples’ lives. Immigrants live and work in – and unquestionably are part of – our communities. Harsh rhetoric questioning their humanity, claiming that the nation is being invaded, and more will offer political benefits to the president but injure real people.

What the United States truly needs is for Congress to overhaul the immigration laws. The nation needs a 21st-century system for legal immigration. It needs a path to permanent legal status for undocumented immigrants, DACA recipients, and Temporary Protected Status holders. Until Congress acts, the nation will continue to see human casualties in the war on immigrants.

 

June 18, 2019

Want to See My Genes? Get a Warrant

[Cross-posted from the New York Times]

Someone broke into a church in Centerville, Utah, last November and attacked the organist who was practicing there. In March, after a conventional investigation came up empty, a police detective turned to forensic consultants at Parabon NanoLabs. Using the publicly accessible website GEDmatch, the consultants found a likely distant genetic relative of the suspect, whose blood sample had been found near the church’s broken window.

Someone related to the person on GEDmatch did indeed live in Centerville: a 17-year-old high school student. Alerted by the police, a school resource officer watched the student during lunch at the school cafeteria and collected the milk carton and juice box he’d thrown in the garbage. The DNA on the trash was a match for the crime scene evidence. This appears to be the first time that this technique was used for an assault investigation.

The technique is known as genetic genealogy. It isn’t simply a matter of finding an identical genetic match between someone in a database and evidence from a crime scene. Instead, a DNA profile may offer an initial clue — that a distant cousin is related to a suspect, for instance — and then an examination of birth records, family trees and newspaper clips can identify a small number of people for further investigation.

The identification of Joseph DeAngelo in the Golden State Killer case also relied on genetic genealogy. He was charged with 26 counts of murder and kidnapping after a genealogist helped investigators in California identify a third cousin of Mr. DeAngelo’s through GEDmatch and other genealogical records.

While there may be broad public support for a technique that solved serial murders, just because technology allows for a new type of investigation doesn’t mean the government should be allowed to use it in all cases.

Genetic genealogy requires lots of DNA samples and an easy way to compare them. Americans have created millions of genetic profiles already. A 2018 study published in Science predicted that 90 percent of Americans of European descent will be identifiable from their DNA within a year or two, even if they have not used a consumer DNA service. As for easy access, GEDmatch’s website provides exactly this opportunity. Consumers can take profiles generated from other commercial genetic testing services, upload them free and compare them to other profiles. So can the police.

We should be glad whenever a cold case involving a serious crimes like rape or murder can be solved. But the use of genetic genealogy in the Centerville assault case raises with new urgency fundamental questions about this technique.

First, there is now no downward limit on what crimes the police might investigate through genetic genealogy. If the police felt free to use it in an assault case, why not shoplifting, trespassing or littering?

Second, there’s the issue of meaningful consent. You may decide that the police should use your DNA profile without qualification and may even post your information online with that purpose in mind. But your DNA is also shared in part with your relatives. When you consent to genetic sleuthing, you are also exposing your siblings, parents, cousins, relatives you’ve never met and even future generations of your family. Legitimate consent to the government’s use of an entire family tree should involve more than just a single person clicking “yes” to a website’s terms and conditions.

Third, there’s the question of why the limits on Americans’ genetic privacy are being fashioned by private entities. The Centerville police used GEDmatch because the site owners allowed an exception to their own rules, which had permitted law enforcement access only for murder and sexual assault investigations. After user complaints, GEDmatch expanded the list of crimes that the police may investigate on its site to include assault. It also changed default options for users so that the police may not gain access to their profiles unless users affirmatively opt-in. But if your relative elects to do so, there’s no way for you to opt out of that particular decision. And what’s to stop GEDmatch from changing its policies again?

Finally, the police usually confirm leads by collecting discarded DNA samples from a suspect. How comfortable should we be that a school resource officer hung around a high school cafeteria waiting to collect a teenager’s “abandoned” DNA?

All of these issues point to one problem: Police use of genetic genealogy is virtually unregulated. Law enforcement agencies and cooperating genetic genealogy websites are operating in a world of few limits. There are not only few rules about which crimes to investigate, but also unclear remedies in the case of mistakes, the discovery of embarrassing or intrusive information, or misuse of the information.

If these concerns sounds similar to other technology and privacy problems we’re facing, they should. Our genetic and digital identities raise similar questions of autonomy, civil liberties, and intrusion by public and private entities.

Without legal limits, genetic genealogy will become a more popular tool for the police. Rather than wait for the courts to deal with difficult and novel issues about genetic surveillance and privacy, state legislatures and attorneys general should step in and articulate guidelines on how far their law enforcement agencies should go. Congress and the Federal Trade Commission should take further steps to protect the privacy and security of consumer genetic data.

If the police are to be given unlimited access to the genetic information of your entire family tree, they should have it at the end of a public debate, not by default.

June 10, 2019

Supreme Court rulings come at a cost in public confidence

[Cross-posted from The Hill]

 

Costs cumulate. Not only insofar as their separate consequences add up, but also in the sense that often the cumulative effect of independent actions is greater than their sum total might suggest.

This is true of regulation; indeed, the classic conservative critique of big government holds that while each one of several regulations may seem justified when examined under a cost-benefit analysis in isolation, government often substantially underestimates the total burden the regulatory state imposes on individuals and businesses. The concern here is not simply that individual compliance costs add up — although they surely do. It is that, cumulatively, too much regulation is stifling and drains energy and initiative from the private sector.

But what is true for legislative regulation is also true for constitutional adjudication. This is a basic issue the Supreme Court needs to consider as it decides important cases this term that seek federal judicial intervention to police the excessively partisan gerrymandering of congressional district lines by elected officials. In short, the Justices need to focus not only on these cases in isolation, but on the cumulative consequences of the court’s decisions in recent years on public confidence in American democracy.

In 2010 in Citizens United v. Federal Election Commission, the court ruled that government was powerless to prohibit corporations and unions from making independent expenditures to endorse or oppose candidates running for electoral office. According to the court, these expenditures, however massive they might be, and however substantial the access and influence such donors received in return, would not “cause the electorate to lose confidence in our democracy.” That prediction seems dubious in hindsight. It seems clear that these now-permissible expenditures, combined with other factors, have convinced many voters that the electoral game is rigged in favor of wealthy and powerful interests in our society.

But Citizens United is just one debit in the public-confidence-in-the-electoral-process side of the ledger. In 2013, in Shelby County v. Holder, the court essentially eliminated the pre-clearance element of the Voting Rights Act of 1965, a provision that required certain states and local governments, because of their history of race discrimination, to seek clearance from the federal government before they made changes to their electoral practices. Because of that ruling, numerous laws and executive decisions that would have been blocked by the pre-clearance requirement have been implemented and have made voting more difficult. Again, the impact of the decision is to further erode public trust in the political system.  

The court’s willingness to uphold Voter ID laws in recent years is yet another withdrawal from the public confidence bank. 

The merits of each of these decisions can be debated in isolation. But the aggregate, compounding impact of these cases, and the private and public conduct they permit, is to cumulatively increase the influence of the wealthy and powerful in the electoral process and to facilitate actions by current government officials to manipulate electoral rules and practices in ways that entrench their party’s status, and correspondingly, to undermine the confidence of the American people in the political system.

Foundational principles are at stake here. The legitimacy of government depends on the consent of the governed. For many Americans, purported consent based on what appears to be an unfair, undemocratic electoral process conveys no such legitimacy.

It is not difficult to appreciate the court’s reluctance to wade into the districting thicket, and to try to develop judicially manageable ground rules for reviewing the drawing of district lines. But if the court doesn’t try — if it continues to refuse to adjudicate challenges to gerrymandered districts — and allows grossly politically manipulated district lines to stand, no matter how egregiously unfair and undemocratic they may be, it risks reaching the tipping point where no national governmental institution, including the court itself, will be able to command the respect of the polity.

Chief Justice Roberts once famously analogized the role of the court to that of a baseball umpire calling balls and strikes. In all sports, referees and umpires — in addition to policing garden-variety violations of the rules — must be willing to call out conduct that compromises the essential nature and spirit of the game. Permitting egregious gerrymandering in a democracy is like allowing the home team to throw bean balls at opposing players. If umpires allow home teams to engage in foul play without sanction, we should not be surprised when neither the umpire’s credibility nor the outcome of games commands respect.

May 24, 2019

Episode 32: 'Contempt Power'

What is Congress' contempt power, and how can lawmakers us it to force cooperation with their investigations? Episode 32 of "What Trump Can Teach Us About Con Law" answers these questions.

May 6, 2019

What 'Hillbilly Elegy' reveals about race in 21st-century America

[Cross-posted from Kentucky.com, and excerpted from Appalachian Reckoning: A Region Responds to Hillbilly Elegy, West Virginia Press, 2019]

My initial response to the publication of Hillbilly Elegy and the media hubbub that ensued was something akin to pride. I was pleased that so many readers were engaged by a tale of my people, a community so alien to the milieu in which I now live and work. Like Vance, I’m from hillbilly stock, albeit the Ozarks rather than Appalachia. Reading the early chapters, I laughed out loud—and sometimes cried—at the antics of Vance’s grandparents, not least because they reminded me of my childhood and extended, working-class family back in Arkansas.

I appreciated Vance’s attention not only to place and culture, but to class and some of the cognitive and emotional complications of class migration. I’m a first-generation college graduate, too, and elite academic settings and posh law firms have taken some getting used to. Vance’s journey to an intellectual understanding of his family instability and his experience grappling with the resulting demons were familiar territory for me. In short, I empathize with Vance on many fronts.

Yet as I read deeper into Hillbilly Elegy, my early enthusiasm for it was seriously dampened by Vance’s use of what was ostensibly a memoir to support ill-informed policy prescriptions. Once I got to the part where Vance harshly judges the food stamp recipients he observed while bagging groceries as a high school student, I was annoyed by his highly selective dalliances into the social sciences and public policy. A few more chapters in, Vance was advocating against the regulation of payday lenders, and I began to realize that Hillbilly Elegy was a net loss for my people.

The chattering classes’ “shock and awe” response to Hillbilly Elegy—(white) people actually live like that?!?—demonstrates apparent widespread ignorance of white socioeconomic disadvantage and the dysfunction it frequently spawns, a feedback loop that, in recent years, has taken on the character of a death spiral. One reason for such ignorance is that the public face of poverty in America today is almost exclusively Black or Brown. Only in the aftermath of the 2016 election has the media renewed attention to white socioeconomic disadvantage. Also, the widespread praise of Hillbilly Elegy suggests that elites across the political spectrum are willing to make scapegoats of poor whites. Progressive folks (among whom I count myself) would vigorously protest Vance’s tough-love stance if he were writing about poor people of color, calling them lazy and criticizing them for “bad choices.” Most progressives seem unfazed, however, that Vance’s assessments and policy proposals throw low-income whites under the proverbial bus.

One very poignant vignette in J.D. Vance’s Hillbilly Elegy comes in the book’s conclusion. Vance holds up 15-year-old Brian, whom Vance is mentoring, as an illustration for what our country—and “hillbillies”—are getting and doing wrong. Vance writes of taking Brian to a fast-food restaurant and noticing “little quirks that few others would,” such as the fact that Brian didn’t want to share his milkshake and that the young man “finished his food quickly and then looked nervously from person to person. I could tell that he wanted to ask a question, so I wrapped my arm around his shoulder and asked if he needed anything. ‘Y-Yeah,’ he started, refusing to make eye contact. And then, almost in a whisper: ‘I wonder if I could get a few more french fries?’ He was hungry. In 2014, in the richest country on earth, he wanted a little extra to eat but felt uncomfortable asking. Lord help us.”

Vance’s outrage is palpable, and justifiably so. I share that outrage. I have often wondered what people who fail to support food programs (e.g., SNAP/food stamps, free and reduced-price school lunches) think they are accomplishing by keeping kids hungry. I tend to conclude that this stance is explained by a desire to visit the sins of the parents (perceived or real) on their children. Never mind that hungry kids don’t perform well in school, are more likely to have disciplinary problems, and—as a result—further aggravate parental stress. Never mind that when kids go hungry, their potential is thwarted, and their future—as well as that of our nation—is put at risk. Childhood hunger is a pipeline to adult dysfunction.

Yet Vance is apparently among those who see no role for food programs that could alleviate Brian’s hunger. His solution to hungry kids like Brian is for their parents to get and stay married and go to church. His solution is for Brian’s parents not to be white trash. But marriage and church don’t feed the kids, regardless of the kids’ skin color. Why, then, are liberals not outraged at Vance’s policy prescription for a hungry white teenager in Appalachian Kentucky? Progressives would be apoplectic if Vance were saying this about a hungry Black teenager in Detroit?

This acceptance of Vance’s message by elite whites across the political spectrum is bad news for people of color as well as for poor whites because it is one more way in which affluent whites prevent cross-racial coalition building among the socioeconomically disadvantaged. Indeed, it reminds me of what Dr. Martin Luther King Jr. observed about white elites during Reconstruction, about the genesis of the Jim Crow era: that elite whites used Jim Crow to segregate the races, to thwart coalition building, to prevent poor whites from seeing what they had in common with Blacks.

Elite whites are still driving wedges between poor whites and Blacks, though I would like to think progressive elites are doing so unwittingly. But vilifying poor whites while expressing concern for the interests of poor Blacks only drives deeper that wedge between two constituencies who desperately need to be in coalition with each other. The acceptance of Hillbilly Elegy’s politics—a politics inflected with race as much as with class—is yet more evidence of that unfortunate phenomenon.

Read more here: https://www.kentucky.com/opinion/op-ed/article229945864.html#storylink=cpy
April 22, 2019

Ep. 31: "Executive Privilege"

In light of all the recent news surrounding the Mueller investigation's findings, episode 31 of the "What Trump Can Teach Us About Con Law" podcast looks at "executive privilege," a term that is relatively new and that rarely has been tested in court.

 

April 10, 2019

Enhanced Scrutiny on the Buy-Side

[Co-written with the Hon. J. Travis Laster and cross-posted from Harvard Law School Forum on Corporate Governance and Financial Regulation]

Editor’s Note: Afra Afsharipour is Senior Associate Dean for Academic Affairs and professor of law at UC Davis School of Law; The Honorable J. Travis Laster is vice chancellor of the Delaware Court of Chancery. This post is based on their recent article, published in the Georgia Law Review, and is part of the Delaware law series; links to other posts in the series are available here.

Empirical studies of acquisitions consistently find that public company bidders often overpay for targets, imposing significant losses on bidder shareholders. Research also indicates that the losses represent true wealth destruction in the aggregate and not simply a wealth transfer from bidder shareholders to target shareholders.

Numerous studies have connected bidder overpayment with managerial agency costs and behavioral biases that reflect management self-interest. Agency theorists in law, management, and finance argue that agency costs explain bidder overpayment—that is management pursues wealth-destroying acquisitions at the expense of shareholders. Numerous studies provide evidence that acquisitions offer significant benefits to bidder management—particularly bidder CEOs—in the form of increased compensation, power, and prestige. For example, studies have found that CEOs are financially rewarded for acquisitions in the form of large, new options and grants, but are not similarly rewarded for other types of major transactions. A second, complementary contributor to bidder overpayment is behavioral bias, such as overconfidence and ego gratification. Managers may overestimate their ability to price a target accurately or their ability to integrate its operations and generate synergies. They may also get caught up in the competitive dynamic of a bidding contest, leading to the winner’s curse. Studies have shown that social factors can undermine decision making and lead to poor acquisitions. These factors include the existence of extensive business or educational ties between the managers of the bidder and target firms, the presence of fewer independent directors on the bidder’s board, and the desire to keep up with peers.

For purposes of corporate law, these concerns implicate the behavior of fiduciaries—the officers and directors of the acquiring entity—and raise questions about whether those fiduciaries are fulfilling their fiduciary duties.

Beginning in the 1980s, to address circumstances that present a high risk of self-interest, the Delaware courts began to develop an intermediate standard of review known as enhanced scrutiny. The situations evaluated in these cases did not encompass the flagrant self-dealing often observed in traditional duty of loyalty cases, but instead involved the potential risk of soft conflicts and fiduciary self-interest. Much of Delaware’s enhanced scrutiny jurisprudence was developed through scrutiny of decisions by sell-side fiduciaries. We argue that the enhanced scrutiny framework has become a means of screening for improperly motivated actions “when the realities of the decision-making context can subtly undermine the decisions of even independent and disinterested directors.” (Reis v. Hazelett Strip-Casting Corp., 28 A.3d 442, 457 (Del. Ch. 2011)).

In the article, we expand on three primary reasons to extend enhanced scrutiny to decisions of buy-side fiduciaries. Most importantly, the core conflict-derived rationale that supports applying enhanced scrutiny to actions by sell-side fiduciaries applies equally on the buy-side M&A scenarios. The decision to undertake a significant acquisition differs from other routine business judgments taken by directors and officers. As in the sell-side scenario, acquisitions are often large transactions that are plagued by subtle personal interests that affect the decision-making process. Empirical evidence suggests that in acquisitions, particularly significant acquisitions, the business judgment of boards is contaminated by the interests of managers on whom boards of directors rely. The board’s judgment is even more contaminated in public company acquisitions where the potential for realization of the value of the transaction is uncertain, but the prestige and compensation connected with purchasing another public company is high.

In addition, the sell-side concern that contingently compensated advisors may magnify the confounding incentives faced by senior managers applies to the buy-side as well. Like potential sellers, potential acquirers regularly hire investment bankers under contingency fee arrangements, which gives the bankers powerful financial incentives to pursue and close deals. Unlike on the sell-side, where the acquisition of a client and the resulting disappearance of a source of business may mitigate the advisor’s eagerness to support a sale, similar relationships on the buy-side reinforce the financial incentive. A longstanding advisor’s personal relationship with management may give the advisor additional reason to support an acquisition that management favors, particularly if a successful acquisition may lead to a bigger company that will purchase more companies in the future.

The real-world decision-making context in which boards operate also supports extending enhanced scrutiny to buy-side decisions. At present, there is reason to suspect that without a jurisprudential prod like enhanced scrutiny, directors may not be sufficiently involved in the buy-side acquisition process—just as they were less involved in the sell-side acquisition process before the systemic shock of cases such as Van Gorkom and Revlon. Descriptive accounts indicate that boards are reluctant to become deeply involved in acquisitions, preferring to leave the process in the hands of management and their advisors, with the board restricting itself to advisory and oversight roles. Although the board theoretically retains ultimate approval authority, once management and its advisors begin to feel committed to a deal and have expended significant resources to move forward on a transaction, abandoning plans can be quite difficult.

Although doctrinally coherent, we caution that extending enhanced scrutiny to the buy-side presents several concerns. Most significantly, applying enhanced scrutiny to buy-side decisions would open the door to well-documented stockholder litigation pathologies that have undermined the effectiveness of the sell-side regime. In recent years, the Delaware courts have strived to lessen the impact of these pathologies. One powerful intervention has been to lower the standard of review from enhanced scrutiny to the business judgment rule if the transaction receives fully informed stockholder approval. Logically, this innovation also would apply to bidder fiduciaries.

It seems likely, therefore, that a principal consequence of applying enhanced scrutiny to bidder decisions would be to induce more buy-side stockholder votes. There are substantial reasons to believe that buy-side stockholder votes would be an effective tool to limit the bidder overpayment phenomenon. And recent empirical literature finds that voting by stockholders can provide an important counterbalance to guard against the self-interest and biases that lead to bidder overpayment.

On balance, extending enhanced scrutiny to decisions by buy-side fiduciaries should lead to a superior regime in which stockholders can provide a meaningful check on bidder overpayment.

The complete article is available for download here.

 

April 1, 2019

California must act to protect state's remaining wetlands from Trump's destructive plans

[Cross-posted from Sacbee.com, and co-written by David Mogavero]

California’s wetland resources provide an abundance of human and environmental benefits: flood protection, filtration of water pollutants, surface and groundwater supplies, wildlife habitat, open space, public recreational opportunities and more.

Sadly, historical filling and development projects have reduced our wetlands to a mere 10 percent of their original extent. The loss of coastal wetlands is even more alarming: 95 percent of the formerly abundant lagoons and marshes along California’s coastline have been destroyed.

In 1972, Congress enacted the Clean Water Act, which included a program designed to preserve the nation’s dwindling wetlands. This federal program has never been wholly successful in achieving that goal. In recent decades, litigation over the extent of federal authority to protect wetlands, federal regulators’ failure to delineate clearly that authority and, now, the Trump administration’s overt plans to open wetland areas to development have combined to threaten America’s few remaining wetlands.

California has the ability to fill this alarming regulatory gap, at least here in the Golden State. California’s State Water Resources Control Board possesses independent power to protect and preserve the state’s remaining wetlands. Indeed, it has broader authority to do so than do federal regulators. Years ago, Gov. Pete Wilson announced a “no net loss” goal for California wetlands, but the board is only now considering a specific policy to do just that.

In January, the board released a final draft of its proposed state wetlands policy. Earlier this month, it held a well-attended public workshop to receive public testimony. Real estate interests and land speculators have expressed their opposition to that proposal on three main grounds. They say:

The board plan is rushed and premature.

The draft policy unduly elevates environmental concerns over economic considerations.

Adoption of the plan would undermine California’s efforts to address its current housing crisis.

Each of these criticisms is utterly without merit.

First, industry’s claim that the water board is rushing to judgment is patently false. In fact, the board has been debating its wetlands policy for nearly a decade in a transparent and publicly-inclusive process that has involved no less than a dozen opportunities for public engagement and comment.

Second, the draft policy is measured and moderate. That’s underscored by the fact that 11 of California’s most respected environmental organizations have filed formal comments with the board complaining that the draft wetlands policy is too lax and urging the board to consider strengthening it. We agree that the board’s draft wetlands policy is, if anything, too weak rather than too stringent. We certainly do not believe that this policy should be weakened any further.

Finally, industry’s claim that adoption of the proposed wetlands policy will undermine achievement of the state’s affordable housing goals is its most cynical and specious. That’s because there are literally hundreds of thousands of acres of undeveloped or underdeveloped properties currently available for building new housing across California.

These properties are generally located in existing communities close to jobs, shopping, schools and transit, thus allowing Californians to substantially reduce their commutes and costs, and consequently shrink their cost of living.

Focusing new housing in existing communities also accomplishes multiple other important public policy objectives, such as reducing state greenhouse gas emissions, encouraging investment in existing communities and increasing the tax base to pay for existing infrastructure maintenance.

Conversely, building in remote, currently undeveloped regions of the state is the only type of housing project that endangers California wetlands. It also contradicts the explicit state policy of encouraging infill development. It’s precisely the type of housing that polls indicate most Californians no longer want.

The water board’s proposed wetlands policy is measured, reasonable, critically needed and long overdue. The board should adopt it without further delay.

Richard M. Frank is professor of Environmental Practice and director of the California Environmental Law & Policy Center at U.C. Davis School of Law. David Mogavero is senior partner of Mogavero Architects in Sacramento.

Read more here: https://www.sacbee.com/opinion
/op-ed/article228596469.html#storylink=cpy
Read more here: https://www.sacbee.com/opinion/op-ed/article228596469.html#storylink=cpy

 

April 1, 2019

A consumer DNA testing company's alarming new marketing pivot

[Cross-posted from Slate.com]

Sometimes a marketing pivot serves a truth-telling function. A new television ad for the consumer DNA database FamilyTreeDNA asks the public to share their DNA with the company not to find out whether they’re at high risk for breast cancer, whether their ancestors were black, or what their Spotify playlist should include. Instead, the father of Elizabeth Smart, who was abducted in 2002, observes that “when a loved one is a victim of a violent crime, families want answers. … If you are one of the millions of people who have taken a DNA test, your help can provide the missing link.”

FamilyTreeDNA makes explicit the use of consumer DNA testing that law enforcement agencies have increasingly relied on to solve cases. When police identified Joseph DeAngelo in 2018 as the suspected Golden State Killer responsible for a series of rapes and murders in California several decades ago, they did so with the aid of genetic genealogy: the combination of genetic matching and traditional genealogical methods. Police uploaded crime scene DNA to GEDmatch, a free service where people submit genetic information (typically from consumer testing services like 23andMe) to find relatives and ancestors. A genetic genealogist combined the identification of those genetically related to the then-unknown suspect with genealogical aids like birth records and newspaper clippings. DNA taken from his trash and car door confirmed the match between DeAngelo and the crime scene evidence.

The two largest DNA testing companies take the position that they will provide customer data only with a lawful order like a subpoena or a warrant. Indeed, 23andMe is explicit in its position of using “all practical and legal administrative resources to resist such requests.” FamilyTreeDNA distinguishes itself by not just allowing law enforcement access to its consumer data but embracing the tactic. It asks consumers to contribute genetic information for the express purpose of helping the police solve crimes.  (If you’ve taken a DNA test elsewhere with a competing company, you can upload your file for free to FamilyTreeDNA.) This marketing shift follows its earlier acknowledgment that the company had already been working with the FBI.  As a result, the company is effectively crowdsourcing criminal investigations.

But when you volunteer your DNA sample, you’re volunteering your genetic family tree, without having asked your parents, siblings, cousins, and distant cousins if they agree. That upends the usual way we think about providing information to law enforcement. You can’t give the police lawful consent to search your third cousin’s house, even if your third cousin (who you may never have met) is suspected of having been involved in a serious crime. Why are we allowing a distant relative to grant police permission to your DNA?

When you volunteer your DNA sample, you’re volunteering your genetic family tree.

And genetic genealogy creates difficulties for the relative who objects to your volunteering the genetic family tree to law enforcement. A woman whose DNA on GEDmatch recently helped lead to the arrest of a second cousin twice removed told a local Iowa newspaper that before she got the test done, her brother raised concerns about getting a family member arrested. But her brother’s objections didn’t mean much.  The consumer DNA companies don’t appear to allow relatives to raise privacy objections to submitted genetic samples. And should a relative later be charged with a crime with the help of genetic genealogy, the Fourth Amendment would be unlikely to allow the relative turned suspect to object to the way he was identified. Even if a relative convinced you that the submission of a DNA sample to a consumer database was regrettable, it turns out that “deleting your DNA” is a very difficult thing to do.

Becoming a genetic informant on your extended family isn’t the only issue here. On its website, FamilyTreeDNA says law enforcement access to its database is limited to cases “identifying the remains of a deceased individual or a perpetrator of a homicide or sexual assault.” Today law enforcement agencies appear to be relying on these consumer DNA databases for long-unresolved homicide cases. And few would object to solving the Golden State Killer case, which involved dozens of violent crimes spanning more than a decade. For now, the genetic genealogy used in that case is time-consuming, and following all of the potential leads raised by a partial DNA match takes considerable police resources.

But if history is any guide, these means will become easier and cheaper to use.  Police already use direct DNA matches to solve crimes like auto theft and burglary.  Imagine if a distant relative’s decision to submit DNA led to your 13-year-old self being arrested for spitting on the bus.

Perhaps you wouldn’t object. Perhaps you think everyone committing a crime, no matter how minor, should be caught. Then, legislators should have a direct and open conversation about a population-wide database: a DNA sample compelled from every person in the United States for the purposes of law enforcement. If that is the goal, we should arrive there directly, not as a de facto matter.

And that leads to perhaps the biggest question raised by FamilyTreeDNA’s ad spot. These are urgent questions about the proper balance between privacy and law enforcement and individual and familial rights. Yet it is a private company making these policy choices, changing the conversation, and shaping its terms. Few would respond well to the question: “Join us as a genetic informant!” But many will likely be moved to “help bring closure to families and victims.” Nor should we forget that while contributors may feel altruistic, the company has many motives. Although uploading your genetic file is free, you can “unlock” all of the company’s features for only $19.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

March 26, 2019

Justices' Immigration Detention Ruling May Have Small Impact

[Cross-posted from Law360]

In ramping up immigration enforcement, the Trump administration has expanded the use of detention. As with many of his policy initiatives, President Donald Trump has added his own rhetorical and policy flourish to aggressive enforcement efforts.

Through an executive order issued within days of his inauguration, he declared the end of “catch and release” of noncitizens (i.e., allowing them a possibility of bonding out of custody pending their removal hearings) and later instituted a policy of separating Central American parents and children in immigration detention. This latter policy provoked a national — and bipartisan —furor that led to its speedy abandonment.

Nonetheless, immigrant detention continues to be central to the Trump administration’s response to Central American asylum seekers. At a critical juncture in contemporary immigration enforcement, the U.S. Supreme U.S. Supreme Court ’s 5-4 decision last week in Nielsen v. Preap[1] expanded executive power to detain immigrants.

Along with noncitizens associated with terrorism, “criminal aliens” are often targeted for harsh treatment under the U.S. immigration laws. A large portion of the removals from the United States of lawful permanent residents each year are of immigrants convicted of crimes. The executive branch, including when Barack Obama was president, lost in the Supreme Court several removal cases based on relatively minor criminal convictions.[2]

Congressional amendments in 1996 toughened the immigration statute to require mandatory detention of certain categories of “criminal aliens." In Demore v. Kim (2003),[3] the Supreme Court upheld the lawfulness of detention of immigrants convicted of certain crimes pending their removal from the United States under 8 U.S.C. § 1226(c).

Less than two years ago, the court grappled with the right to a bond hearing for immigrants convicted of crimes placed in detention in Jennings v. Rodriguez (2018);[4] after holding re-argument in the case, the court, in an opinion by Justice Samuel Alito, held that the statute did not require a bond hearing and remanded the case to the court of appeals to address the constitutionality of mandatory detention.

The contemporary use of detention by the Trump administration heightened the attention paid to the Supreme Court’s review of the complicated statutory question of immigrant detention in Nielsen v. Preap. Entering the United States as a refugee from Cambodia in 1981, Mony Preap had several convictions, mostly small-time drug convictions.

Released from criminal custody in 2006, he was not arrested by the U.S. immigration authorities until 2013. The U.S. government placed two other plaintiffs, Juan Lozano Magdaleno (who entered the United States from Mexico in 1974) and Eduardo Vega Padilla (a Mexican citizen who entered the country in 1966), into immigrant detention five and 11 years, respectively, after their release from state custody.

Two class actions and a group of habeas corpus cases challenged the lawfulness under the immigration statute of U.S. government arrests of lawful permanent residents long after release from state custody. Importantly, the lawsuits did not challenge the statute on constitutional grounds but only claimed that the detention was not authorized by the statute.

8 U.S.C. § 1226(c) provides that the U.S. government “shall take into custody any alien [described in subsequent sub-sections as being convicted of certain crimes and being related to persons engaged in `terrorist activities’] ... when the alien is released, without regard to whether the alien is released on parole, supervised release or probation ....” (emphasis added). The U.S. Court of Appeals for the Ninth Circuit had held that the statute only authorized detention immediately upon the release of the immigrant from state custody.

In immigration cases that come before the Supreme Court, the issues raised generally boil down to the interpretation of the immigration statute, which is famous for its complexity, and, when appropriate, the deference properly afforded the agency’s interpretation. In the end, the proper textual interpretation of Section 1226(c) was at the center of the disagreement among the justices in the case of Nielsen v. Preap. The court found that the statutory language was clear and that resort to deference doctrines was unnecessary.

Justice Alito, joined in full by Chief Justice John Roberts and Justice Brett Kavanaugh, and in large part by Justices Clarence Thomas and Neil Gorsuch, held that the Ninth Circuit’s interpretation of Section 1226(c) was contrary to the plain text and structure of the statute. The court instead found that the statute allowed detention even if the U.S. government did not assume custody until after — indeed long after — release from state custody.

Telegraphing the final outcome, Justice Alito’s opinion began as follows:

"Aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being decided ... Congress has decided, however, that this procedure is too risky in some instances. Congress therefore adopted a special rule for aliens who have committed certain dangerous crimes and those who have connections to terrorism." (emphasis added).

Thus, in interpreting the statutory language, the court emphasizes at the outset the importance of the fact that the detention at issue involves immigrants who “committed certain dangerous crimes” and those with “connections to terrorism,” two particularly disfavored groups of noncitizens under the immigration laws.

In concluding that the plain language of Section 1226(c) allowed immigrant detention long after release from state custody, the majority engaged in a textual analysis that only a grammarian could love. The majority painstakingly reviewed the language of the statutory provision in question and emphasized that it applies to noncitizens convicted of crimes as well as relatives of terrorists.

Relying on, among other things, definitions from a couple of dictionaries, and a book on interpretation co-authored by the late Justice Antonin Scalia (A. Scalia & B. Garner, "Reading Law: The Interpretation of Legal Texts" (2012)), the majority found that the immigrants were subject to mandatory detention “even if (as with respondents) the Secretary did not arrest them immediately `when’ they were `released.’” Justice Alito justified that conclusion by noting that “respondents’ unsparing deadline will often be missed for reasons beyond the Federal Government’s control,” (citation omitted), such the refusal of state and local government to cooperate with federal immigration officials.

Among the cases that the majority relied on in support of its interpretation of 8 U.S.C. § 1225(c) was its decision in United States v. Montalvo-Murillo (1990).[5] In that case, the court held that “a provision that a detention hearing ‘shall be held immediately upon the [detainee’s] first appearance before the judicial officer’ did not ban detention after a tardy hearing.” (citation omitted).

The majority concluded that, because the statute was not ambiguous, the canon of construction calling for the interpretation of the statute to avoid constitutional questions did not apply. In reaching that conclusion, the court relied on Jennings v. Rodriguez, in which the court reached a similar conclusion in finding that the statutory provision in question did not provide for a periodic bond hearing for immigrants held in detention.

Going out of its way to emphasize that no constitutional questions were before the court, the majority concluded its analysis of the statute as follows: “While respondents might have raised a head-on constitutional challenge to § 1226(c), they did not. Our decision today on the meaning of that statutory provision does not foreclose as-applied challenges — that is, constitutional challenges to applications of the statute as we have now read it.” Based on that invitation, expect future as-applied constitutional challenges.

For a plurality of the court, Justice Alito, joined by the chief justice and Justice Kavanaugh, relied on Jennings v. Rodriguez to conclude that the immigration statute allowed for judicial review. As in that case, the immigration statute’s framework could be challenged even though the statute bars review of discretionary judgments by immigration officials in individual removal cases. In addition, Justice Alito reasoned that, because there was at least one named plaintiff with a live case when the class was certified, the case was not moot.

Although agreeing with the majority’s analysis of Section 1226(c), Justices Thomas and Gorsuch disagreed on the issue of judicial review. Justice Thomas reiterated what he said in his concurrence in Jennings v. Rodriguez — that the court lacked jurisdiction of class actions under 8 U.S.C. § 1252(f)(l), which he reads as barring such review. Justice Kavanaugh “wrote separately to emphasize the narrowness of the case before us ...” He emphasized that the sole question before the court was the interpretation of the statute to determine whether the executive branch had “to immediately detain the noncitizen when the noncitizen is released from custody ..” (emphasis in original).

Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, dissented. As highlighted in news reports on the decision, Justice Breyer
firmly rebutted Justice Kavanaugh’s claim that the issue decided by the court was “narrow”:

"Under the Government’s view, the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community. These aliens may then be detained for months, sometimes years, without possibility for release; they may have been convicted of only minor crimes ... Moreover, for a high percentage of them, it will turn out after months of custody that they will not be removed from the country because they are eligible to receive a form of relief from removal ... Thus, in terms of potential consequences and basic American legal traditions, ... the question before us is not a 'narrow' one ... "

Justice Breyer’s dissent emphasizes that the language and structure of the statute, as well as the canon of constitutional avoidance, all undercut the majority’s interpretation of the statute. He emphasized the importance of the question because, under the majority’s interpretation, the immigrant would be detained without the opportunity to bond out of custody — and thus would be detained even if not determined to be a flight risk or a danger to the community.

Like the majority, Justice Breyer closely parsed the language of the statute. He, however, did not find the interpretation “plain” and reached a contrary conclusion. His interpretation was that “[t]he words `when the alien is released’ require the Secretary to detain aliens under subsection (c) within a reasonable time after their release from criminal custody — presumptively no longer than six months.”

Offering an interesting insight into the former law professor’s mind, Justice Breyer employed an analogy of a recipe for cooking an Angus steak to illustrate his point of statutory construction. Justice Breyer also would invoke the canon of constitutional avoidance to interpret the statute to avoid constitutional questions that might be raised in the event of an arrest years after release from state custody and the denial of a bond hearing. Justice Breyer concluded that “[i]n my view, the Court should interpret the words of the statute to reflect Congress’ likely intent, an intent that is consistent with our basic values ... I fear that the Court’s contrary interpretation will work serious harm to the principles for which American law has long stood.”

Nielsen v. Preap is but another step in the expansion of executive power over immigrant detention. The court so held in a time when the U.S. government is aggressively detaining immigrants and promises to do more. Although continuing that trend, the holding will not likely have a huge impact on immigration law and immigration detention.

As Justice Kavanaugh made clear, the court did not address the constitutionality of detention without the possibility of bond, an issue that it remanded to the lower court in Jennings v. Rodriguez. The constitutional question thus remains alive and likely will be before the court again. More generally, all of the justices carefully parsed the text of the statute and considered the statutory structure. They took the task of judicial review seriously. In that way, the court’s approach continues the court’s move toward the “normalization” of immigration law, applying ordinary methods to interpreting the immigration statute.

[1] https://casetext.com/case/nielsen-v-preap-2

[2] See, for example, Moncrieffe v. Holder, 569 U.S. 184 (2013) (vacating removal order based on conviction for possession of small amount of marijuana) https://www.law.cornell.edu/supct/cert/11-702.

[3] 503 U.S. 510 (2003) https://www.law.cornell.edu/supct/html/01-1491.ZS.html

[4] 138 S. Ct. 830 (2017) https://www.supremecourt.gov/opinions/17pdf/15-1204_f29g.pdf

[5] 495 U.S. 711 (1990) https://caselaw.findlaw.com/us-supreme-court/495/711.html