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September 19, 2017

The Pardon of Sheriff Joe Arpaio and the Rule of Law

[Cross-posted from Latinx Talk]

By Kevin Johnson

In August 2017, President Trump pardoned former Maricopa County (Arizona) Sheriff Joe Arpaio, who a federal court found guilty of criminal contempt for intentionally violating numerous court orders in a civil rights lawsuit. In so doing, President Trump pardoned a flagrant and repeated violator of Latina/o civil rights and sent a deeply troubling message to the entire nation.

For decades, the controversial sheriff’s law enforcement methods had struck justifiable fear into the hearts of immigrants and U.S. citizens of Mexican ancestry. Years ago, the Department of Justice concluded “that discrimination against Latino persons exists in a wide range of [Maricopa County Sheriff Office (MCSO)] practices.  [It] obtained compelling evidence showing that MCSO deputies routinely stop Latinos at much higher rates than similarly-situated non-Latinos...” Letter from Thomas E. Perez, Assistant Attorney General, to Bill Montgomery, County Attorney, Maricopa County, Dec. 15, 2011.

The conduct of former Sheriff Arpaio is part of a long, if not illustrious, history of discrimination in Arizona. The “Bisbee Deportation” of Mexican workers from the state in 1917 is an infamous civil rights milestone. Unfortunately, discrimination against Latina/os in Arizona remains to this day. The Tucson public schools continue to operate under a consent decree entered in a school desegregation case. A federal court this year found that the state acted with a discriminatory intent in eliminating Mexican American Studies from the public schools and thus violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. A series of immigration enforcement, English only, and other laws — some of them vetoed by the governor, others struck down by courts — targeted Latina/os in the state.

Defeated for re-election in 2016, Sheriff Arpaio had made a name for himself in unabashedly focusing on Latina/os in ostensibly enforcing the U.S. immigration laws. Time and again, he stated unequivocally that he would continue to do just that – despite being ordered by the courts to end the discrimination. Arpaio consistently showed cruelty and insensitivity toward inmates under his legal protection. He, for example, made detainees wear pink underwear and suffer the outdoors in scorching Arizona summer heat. Arpaio forced undocumented immigrants in custody to live in a segregated “tent city” that Arpaio himself bragged was a “concentration camp.”

In 2010, the Arizona legislature passed S.B. 1070, a law that Arpaio championed. Section 2(B) of the law, the “Show Your Papers” provision, generated great fear in the Latina/o community; it gave state and local law enforcement officers carte blanche to question people about their immigration status and to expand the already rampant racial profiling of Latina/os. With anti-Latino sentiment lurking in the background, the Arizona legislature passed S.B. 1070 with little, if any, concern for the civil rights of Latina/os. The U.S. Supreme Court in Arizona v. United States (2012) in large part struck down S.B. 1070 as unconstitutional.

After a trial in 2013 that saw overwhelming evidence of racial discrimination, a federal court in Melendres v. Arpaio found that the Maricopa County Sheriff’s Office led by Arpaio engaged in a pattern and practice of racial profiling of Latinos in criminal and immigration enforcement. However, that was not the basis for Arpaio’s criminal conviction. The contempt charge instead resulted from the court’s finding that Arpaio for years had intentionally violated numerous court orders designed to end the discriminatory practices of the Sheriff’s Office. The court held a trial in 2017 affording Arpaio a chance to rebut the charges that he had failed to end the discrimination and was not in contempt of court orders. He failed and the federal judge found that Arpaio simply refused to comply with the court orders and his sheriffs continued to discriminate.

In some ways, Joe Arpaio is the modern incarnation of Birmingham, Alabama’s infamous police chief Bull Connor, an ardent opponent of integration in the 1950s and 1960s who directed fire hoses and violence at civil rights marchers.  Boldly defying the civil rights laws, segregationists in the Jim Crow era, like Arpaio today, had to be schooled on the rule of law. In one famous example, President Eisenhower in 1957 deployed federal troops to enforce the Supreme Court’s decision outlawing segregated schools in Brown v. Board of Education (1954). Only then could African American students attend Little Rock Central High School in Arkansas.

Ironically enough, in advocating aggressive enforcement of the U.S. immigration laws, Trump repeatedly emphasized the need to follow the rule of law. But President Trump’s pardon of Arpaio for flagrant violations of the civil rights laws is wholly inconsistent with any conception of the rule of law.

Presidential pardons by their nature are controversial, with President Ford’s pardon of President Nixon for his role in the Watergate cover-up a famous example. Still, in light of Arpaio’s controversial record, the fact that his pardon for a criminal contempt conviction provoked a firestorm of controversy should not be surprising. Still, an American President never has pardoned a person who repeatedly, willfully, and intentionally refused to comply with court orders aimed at ending mass violations of the civil rights of racial minorities.

Arpaio in effect took the view that the rule of law did not apply in Maricopa County, Arizona. This explains why Attorney General Jeff Sessions reportedly told President Trump that he could not drop the charges against Arpaio. And it explains why Republicans and Democrats alike have condemned the Arpaio pardon.

President Trump justified the pardon by saying that the sheriff “was just doing his job.” However, Arpaio’s “job” as a law enforcement officer does not include breaking the law or engaging in a pattern and practice of racial discrimination against Latinos.  Nor does Arpaio’s job as sheriff include intentionally violating court orders. The efforts to nullify a court order vindicating the civil rights of vulnerable minorities are precisely the kinds of unlawful actions of the Southern segregationists of yesterday. In important respects, the Arpaio pardon is akin to jury nullification popular in the days of Jim Crow when juries, whatever the evidence, simply would not convict whites – including police — of killing African Americans.

We live in a time of deep political division. The nation has seen civil unrest unfold as violent clashes take place between white supremacists and counter-protesters. President Trump and his followers have inflamed passion by claiming that immigration laws must be enforced with impunity, whatever the civil rights consequences. The pardoning of Joe Arpaio is entirely consistent with the enforcement-at-all-costs mentality and the sacrificing of Latina/o civil rights for immigration enforcement.

In pardoning Arpaio, the president demonstrates that, despite his stated commitment to enforce the immigration laws at all costs, he is not equally committed to enforcement of civil rights laws. That lack of commitment also can be seen in his response to the troubling recent clashes in Charlottesville. President Trump has made the political decision, consistent with the one to dismantle the Deferred Action for Childhood Arrivals program, to side with those opposed to federal civil rights law — and against the rule of law. That is not the message that the nation needs at this time.

September 17, 2017

RAISE Act: Kevin Johnson and global scholars explain "merit-based" immigration

[Cross-posted from The Conversation]

Editor’s note: In February, U.S. Republican senators Tom Cotton and David Perdue, with President Donald Trump, unveiled an immigration bill called the RAISE Act. It would create a “merit-based” points system for evaluating foreigners applying to come to the U.S. through an employment visa.

 

The senators said that in drafting it, they had looked to best practices for points-based systems like those in Canada and Australia. As Congress takes up the issue of immigration, we turned to our global network of scholars to get their perspective on how points systems work.



Kevin Johnson – University of California, Davis, United States

The RAISE Act would drastically reshape American immigration. It will also likely have the unintended consequence of increasing undocumented immigration.

Approximately one million immigrants are granted lawful permanent residence in the U.S. every year. 

The RAISE Act would cut annual legal immigrant admissions by one-half, primarily by eliminating family-sponsored immigration visas for those who are not spouses or minor children of U.S. citizens and permanent residents. This would reduce the total number of family-sponsored green cards from 226,000 to 88,000. Cuts to family-based immigration would primarily affect prospective immigrants from Mexico, China, India, the Philippines and Cuba.

These changes would transform the overall U.S. immigration system from primarily family-based to employment-based. Under the current system, most employment-based immigrants are highly skilled and make up only about 14 percent of those who receive green cards.

Under the RAISE Act, employment-based immigrants would make up a majority of those who receive green cards. The bill would create new criteria for evaluating the most highly skilled applicants.

In the proposed points system, applicants would earn points for meeting certain criteria such as age (preference for person between ages 26 and 30), investing US$1.35 million in the U.S. and having a degree. Extra points are awarded for degrees earned in the U.S. and in a STEM field. Nobel Prize winners, professional athletes and English language speakers would also get extra points.

The bill also seeks to eliminate the Diversity Visa program, which allocates 50,000 visas a year for countries with low rates of immigration to the United States. In addition it would cap refugee admissions at 50,000, which would be the lowest ceiling set in modern U.S. history. 

Halving legal immigration will likely increase the pressures for undocumented immigration. The current limits on legal immigration have already brought roughly 11 million undocumented immigrants to the U.S. 

This is especially the case because the merit-based system will not address the high demand in the United States for low- and medium-skilled workers in the agricultural, construction and service industries. 

Alex Reilly – University of Adelaide, Australia

In 2015-16, Australia accepted 189,770 permanent migrants through its skilled and family immigration streams. In addition, Australia permanently resettled just under 18,000 refugees and other humanitarian migrants. This has been the level of migration to Australia for more than 10 years, adding nearly 1 percent to the Australian population of 24 million every year. This is a considerably larger proportion than the U.S. admits through its migration programs.

Twenty years ago, more migrants came through the family stream than the employer stream. In 2015-16, 67.7 percent of migrants came through the skilled stream and 30.8 percent through the family stream. This change is a direct result of government policy prioritizing skilled migration because of its contribution to the economy.

However, these figures are deceptive, as numbers in the skilled migration stream include partners and dependents of primary applicants. So approximately half of all skilled migrants are actually family members of skilled migrants who do not have to meet the eligibility requirements of the primary applicant.

There are two pathways for skilled migration. The first, general skilled migration, requires applicants to have occupations on the skilled occupation list. Most of these skills are in professional areas such as medicine or engineering, or trades in demand in the economy such as plumbers and electricians. The list is updated regularly based on an assessment of Australia’s economic needs.

Visas for this group are awarded on a points system similar to what is being proposed in the U.S. Points are awarded for age, English language proficiency, skilled employment outside Australia, skilled employment in Australia and qualifications that are linked to occupations on the skilled occupation list. There are also points available for an Australian education, being accredited in a community language, studying in regional Australia, partner qualifications and completing a professional year in Australia. Although migrants in this skilled stream are highly qualified, they do not necessarily find employment in their area of expertise and many remain underemployed. 

The second pathway is for skilled migrants with an employer sponsor. This pathway is open to migrants with wider range of skills and has the advantage of migrants being in guaranteed employment when they first arrive in Australia. Employers must demonstrate that they have a skilled position available, and that there are no Australians willing or able to take up the position. This requires employers to have advertised jobs locally before seeking migrants to do the work. 

Almost all employer-sponsored migrants apply from within Australia, and 44 percent of independent skilled migrants also apply from within Australia, transitioning from temporary work, international student and working holiday maker visas. This reflects the very high number of temporary migrants working and studying on these visas in Australia – 750,000 in December 2016.

Mireille Paquet – Concordia University, Montreal, Canada

In 2015-2016, Canada admitted 271,845 permanent immigrants. Canada’s permanent migration inflows resemble those of Australia but are generally smaller than those received by the United States. Immigration is the largest contributor to population growth in Canada since the early 2000s.

The permanent immigration program is divided into three main streams: economic, family and humanitarian. The economic stream accounted for about 60 percent of the total permanent immigration to Canada in 2015-2016. Family made up 24 percent of the total immigration to the country. These proportions have remained relatively stable over the last 15 years, with economic immigration representing the largest share of those selected for permanent settlement in the countries. 

The economic stream for permanent immigration is currently divided into several programs. The Federal Skilled Workers Program is often used as the flagship example of Canada’s approach to selecting immigrants in relation to their expected economic contributions. U.S. President Donald Trump has praised it on the grounds that it would create economic mobility for both native-born Americans and immigrants.

To be considered, candidates must meet baseline criteria for work experience, language proficiency in at least one of the two official languages – French or English – and education. Candidates are then assessed using a 100-point selection grid that considers factors such as education, experience, age, arranged employment in Canada and adaptability. Adaptability refers to spouse or partner language level, past work studies in Canada for the applicant and spouse or partner, and the existence of relatives in Canada.

To be eligible, a candidate must score 67 points or higher. The pool of eligible candidates are then ranked. The highest-ranking individuals receive invitations to apply for permanent residence. This system, called Express Entry, relies on a comprehensive ranking system that involves a total of 1,000 factors. The minister of immigration issues the number of invitations to be extended every month.

Despite a sophisticated assessment system, research demonstrates that immigrants to Canada still face challenges in finding jobs and achieving economic mobility in the short and medium term. Gender, race and geographic position in the country and employment sector are all factors that affect economic integration of immigrants to Canada.

September 14, 2017

Bigger Pies, Better Resource Allocation, or Information? Three Futures for Education Rights Litigation

By Chris Elmendorf & Darien Shanske

[Cross-posted from Education Law Prof Blog]

Education is special in the eyes of the law. State constitutions rarely require the government to spend money on anything, let alone to spend it well. Yet virtually every state constitution provides for a system of free public schools, and many courts have treated state governments as having a legally enforceable duty of care with respect to education.

But what exactly does this duty of care entail? One might expect this question to be reasonably well settled, as public-interest lawyers have been litigating education rights cases since the early 1970s. It is not. Two competing visions of the duty of care are playing out today in cases across the country. One holds that the state’s primary responsibility is to provide an ample fiscal “pie” for local school districts. Funding arrangements must ensure that all districts can afford to pay for decent facilities and programs. This vision motivates many of the claims that were filed in response to school-funding cutbacks during the Great Recession. The other vision holds that the state’s primary duty is to allocate efficiently whatever funds it appropriates for education. Informed by conservative critiques of public-sector bloat and interest-group politics, this vision calls on courts to redirect wasteful spending and unfetter local school administrators, but without touching the “political” question of how much to spend. The better-allocation vision undergirds a recent and exhaustively detailed trial court ruling in Connecticut, as well as challenges to teacher-tenure and seniority rules now pending in Minnesota, New York, and New Jersey.

Conservative opponents of bigger-pie litigation have long argued that the empirical evidence of the effect of school spending on student outcomes is too shaky to warrant judicial intervention. Liberal critics of the new teacher-tenure lawsuits have started making precisely analogous arguments in better-allocation cases, with no apparent sense of irony. But no one has asked whether states themselves might bear constitutional responsibility for the lack of reliable information about likely effects of plaintiff-sought reforms.

In a forthcoming law review article, we pose and answer this question, developing a new, information-centric vision for education rights litigation. Under our account, the states’ primary responsibility today is to structure their educational systems so that researchers and policymakers can figure out which interventions or reforms would actually improve the constitutional performance of the school system. Courts uniformly agree that the constitutional function of public schools is to prepare children for a lifetime of productive participation in economic, political, and civic life. But researchers know very little about the effects of educational reforms on adult outcomes—and the states bear much of the blame for this.   

As our article explains, states exercise enormous control over the production of knowledge about education, especially about long-run effects. This control is wielded through the architecture of administrative data systems; through the rules for assigning students, programs, and funding to schools; through the manner in which educational reforms are implemented; and through the terms on which the state provides access to administrative data.

States already possess constitutionally urgent information about the outcomes that schoolchildren realize as adults. This information is scattered across tax, voting, health, welfare, and criminal justice agencies. But, for the most part, state record-keeping systems have not been designed to enable linkage of educational and other records—and record-linkage is necessary to understand the long-run impact of educational reforms. Some states have actually banned the use of critical administrative datasets for research purposes. Likewise, in rolling out educational reforms, states rarely consider whether the rollout will enable credible tests of the reform’s effects. (Typically this requires well-defined “treatment” and “control” groups, which are similar to one another on average.)

Judicial recognition of a state duty of care with respect to the production of knowledge about education wouldn’t turn children into lab rats. States would still have to protect student records from privacy-compromising disclosures, and state officials, not researchers, would continue to set priorities.

But states would no longer be free to ignore how their own decisions affect what can be learned about the long-run effects of the state’s educational policies and programs. At a minimum, states would have to issue and periodically update a plan that identifies barriers to learning about how the state’s educational objectives can be achieved, and that explains what the state intends to do about it. Arbitrary barriers, such as flat prohibitions on the linkage of educational and other administrative records, would be vulnerable to constitutional attack. And in “bigger pie” and “better allocation” litigation, courts would consider not only whether the plaintiffs’ evidence is strong enough to order statewide reforms, but also whether the difficulty of learning about the effects of spending levels or allocative constraints without the cooperation of the state warrants a test of the plaintiff-sought remedy, which would be implemented temporarily in a randomly selected subset of schools or school districts. 

Our informational gloss on the state’s duty of care with respect to education offers a way forward in the many states whose courts have, on separation-of-powers grounds, declined wade into the Stygian swamp of funding and allocative disputes. Courts can address barriers to the production of knowledge about education without touching large-scale questions about how much to spend on education and how to spend it. Whatever else the states may owe to disadvantaged children, at least the states must make it possible to learn whether their efforts to better educate those children are doing any good.

September 14, 2017

End of DACA is an Opportunity for Real Immigration Reform

By Kevin R. Johnson

[Cross-posted from the Daily Journal]

After months of speculation and rumor that has frightened immigrant communities across the United States, President Donald Trump has announced the end of the Deferred Action for Childhood Arrivals program. President Barack Obama created the program known as DACA to help protect undocumented immigrants brought to the United States as children from deportation. Since 2012 DACA has provided relief, and work authorization, to nearly 800,000 undocumented minors.

I laud the Obama administration for the courage and ingenuity to create DACA. Trump should not have ended the program that has benefited so many immigrants. But, there may be a silver lining in Trump's dismantling of DACA: He is delaying the end of the program for six months. This gives Congress time to pass a law that would provide enduring protections for the DREAMers, the term used to refer to undocumented college students who have become a potent political force. And it even could spur more far-reaching immigration reform.

The end of DACA has been met with expressions of nothing less than grief and a firestorm of bipartisan criticism. House Speaker Paul Ryan and Republican Sen. Orrin Hatch of Utah, for example, lobbied the president not to end the program. DACA seemed to have more supporters than ever. In the coming weeks, the nation is likely to see a great many protests and calls for political action.

It is worth remembering that Obama created DACA after Congress failed for years to enact comprehensive immigration reform. As he emphasized at the time, the deferred action program was a limited, and temporary, response to congressional gridlock on immigration. In my estimation, the creation of DACA was a constitutional and eminently sensible approach to a most sympathetic cohort of immigrants.

California has more DACA recipients than any other state - thousands of college students use the program that allows them to obtain authorization to work their way through school. In short, DACA students are seeking a better life than their parents.

In light of the fact that virtually all agree that the current immigration system is broken, Democratic and Republican political leaders should welcome the opportunity to reconsider immigration reform. Critics of DACA say it was flawed from the beginning because Obama created it through executive order. They instead argue that Congress is the appropriate branch of government to provide relief to undocumented immigrants. Whether one buys that argument or not, Congress now must act to protect DACA recipients and, in so doing, can once again tackle immigration reform.

In the end, DACA is just one piece of the larger immigration debate. The reform of our immigration laws is, needless to say, a complex problem. In 2013 a bipartisan group of senators passed carefully-crafted legislation aimed at reforming the legal immigration system, bolstering enforcement, and providing legal status to the 11 million undocumented immigrants in the United States. But the Republican-controlled House of Representatives never put the legislation to a vote.

The immigration reform proposal on the table today unfortunately would not solve any of these problems, but rather make them worse.  During the summer, Trump expressed support for a proposal called the Reforming American Immigration for Strong Employment (RAISE) Act, co-sponsored by Republican Senators Tom Cotton of Arkansas and David Purdue of Georgia. The Act would drastically reshape American immigration and likely increase pressures on undocumented immigration.

The RAISE Act would reduce legal immigration by 50 percent over the next decade. The government annually grants lawful permanent residence to approximately 1 million immigrants from countries including Mexico, China and India. About two-thirds of visas in the United States are allocated because applicants have family members already in the country. But this bill would eliminate all family sponsorship beyond spouses and minor children of U.S. citizens and legal permanent residents.

Besides dramatically reducing family-based immigration, the RAISE Act would replace the current selection scheme with a points system based on "merit." Applicants would earn points that favor high-paying job offers, advanced degrees and huge financial investments of more than $1 million in the United States. People who are closest to age 25 and have high English proficiency scores would also receive preference. The act would do nothing to help ensure the the lawful admission of workers in agriculture and the service industries, which today employs many undocumented workers.

The changes proposed under the RAISE Act would only exacerbate the current problem of undocumented immigration. The United States has roughly 11 million undocumented immigrants largely because of the unrealistic restrictions on legal immigration under current laws. California is home to nearly a quarter of the nation's undocumented immigrants.  

If Congress enacts a system like the RAISE Act, it will not address the high demand in the United States for low- and medium-skilled workers. Who will fill the jobs in agriculture, construction and service industries that undocumented immigrants overwhelmingly perform today?

By eliminating DACA Trump is giving Congress a historic opportunity for immigration reform. This is a chance for lawmakers to enact more profound immigration reform that is fair, enforceable, and lives up to the nation's ideals. Such reform is just what the nation needs in these troubled times.

September 12, 2017

Undocumented Immigrants Should Not Have to Risk Deportation for Talking to Police

By Kevin R. Johnson

[Cross-posted from the Sacramento Bee]

In 2015, the San Francisco Sheriff's Department released an undocumented immigrant as required by local ordinance. He later allegedly murdered Kate Steinle. This undeniable tragedy stirred a national controversy over "sanctuary laws."

But many state and local governments had similar laws and policies that require the release of noncitizens from custody in the absence of a federal warrant. The Los Angeles Police Department, among others, limits police inquiry into the immigration status of crime victims, witnesses and suspects, a policy that dates to the late police Chief Daryl Gates' tenure in 1979.

The basis for such policies stems from an important principle: effective law enforcement requires trust of all residents, including immigrants. To build that trust, local government cannot appear to be part of the federal immigration enforcement machine. For that fundamental reason, there traditionally has been a separation between local police and federal law enforcement.

Consistent with that long tradition, a proverbial flood of jurisdictions across the country responded to record numbers of removals by the Obama administration. The goal was to enact laws and policies to protect state and local government autonomy. In 2014, the California Legislature passed the TRUST Act, which said state and local law enforcement did not have to cooperate with the U.S. government for arrests of noncitizens who committed minor crimes.

Now the Legislature is considering the California Values Act, Senate Bill 54 by Senate President Pro Tem Kevin de León, D-Los Angeles. The bill is a response to President Donald Trump's repeated threats of mass deportations, made all the more real with the rescission last week of the Deferred Action for Childhood Arrivals (DACA) program.

SB 54 would provide safeguards to ensure that immigrants can visit government offices, work with police, take their children to school and go to the doctor without fear of deportation. In line with policies already in place, it also would allow local and state jurisdictions to refuse to comply with federal immigration enforcement if an undocumented immigrant has not committed a major crime.

The act responds to a palpable fear among immigrants, who are anxious about any interactions with state and local government officials. Specifically, they believe that information provided to those local officials could end up in the hands of federal immigration enforcement authorities. And who could blame them?

In recent months, U.S. Immigration and Customs Enforcement officials have gone to state and local courthouses to make targeted arrests of undocumented immigrants facing criminal charges, even traffic infractions. Immigration officials have gone so far as to arrest an undocumented immigrant after he dropped his child off at school.

The Trump administration no doubt will attack the California Values Act, as it has attacked "sanctuary cities" generally. In a January executive order, the administration threatened to eliminate all federal funding to so-called sanctuary cities. A federal court in San Francisco ruled that the defunding proposal was unconstitutional.

The U.S. Supreme Court has also weighed in by striking down state laws, such as Arizona's "Show Your Papers" law, SB 1070. That law mandated that state and local law enforcement officers participate in immigration enforcement. Although state and local officials cannot regulate immigration as Arizona tried to do, they can determine how to provide essential services to immigrants in their communities. That is precisely what the Values Act seeks to do.

California's Values Act is not an attempt to regulate immigration. Rather, it is an attempt to serve and protect all California residents, consistent with federal law. De León's bill is a legitimate effort by the state to determine how it interacts with, and protects, its citizens.

September 12, 2017

What Do Dreamers Do Now?

By Rose Cuison Villazor

[Cross-posted from the New York Times]

DAVIS, CALIF. - On Tuesday Attorney General Jeff Sessions announced the White House's plan to rescind protections for young immigrants who arrived in the United States illegally as children, but with a six-month grace period to let Congress respond. The program, Deferred Action for Childhood Arrivals, grants those who qualify for the program a reprieve from deportation, which they must renew every two years.

The White House claims that DACA, which President Barack Obama announced in 2012 and which has broad bipartisan support, is illegal, but deferred action is a widely accepted legal principle. Over the last five years, DACA has become a core part of America's immigration landscape: DACA has been granted to more than 800,000 immigrants, allowing them to attend school, work and contribute to their communities. Its repeal would upend the lives not only of these "Dreamers," as participants are called, but also of their families, co-workers and employers.

The announcement leaves the Dreamers with countless questions. While authorities have said they won't prioritize DACA participants after the program ends, how easily could that change? Will Congress come through with a replacement? The announcement says that information provided in DACA applications would not be proactively shared, with some exceptions - but does that leave open the possibility that information may be shared upon request from enforcement agencies?

At least two things are clear, however. First, the government must continue to treat current DACA recipients as people with deferred action, who should not be removed unless they violate the terms of DACA. Officials say that some recipients will be allowed to keep their status and even renew; the government should make this clear and apply it to all current DACA participants. The Department of Homeland Security has its own standard operating procedures that specify the process of how one's particular DACA approval may be rescinded. The government must continue to comply with its own guidelines and not revoke a person's deferral arbitrarily.

Second, and most important, is what the government does with the information Dreamers gave it as part of their application - information that amounts to an admission of their having entered the country illegally, albeit without their knowledge, since they were children at the time. United States Citizenship and Immigration Services, which administers DACA, should delete all their information.Every weekday, get thought-provoking commentary from Op-Ed columnists, the Times editorial board and contributing writers from around the world.

Applicants gave that information with the assurance that it would not be shared with Immigration and Customs Enforcement or Customs and Border Enforcement, the agencies that otherwise would be charged with deporting them. As the Citizenship and Immigration Services' own guidance states, "information provided in this request is protected from disclosure to ICE or C.B.P.," unless the applicant commits a crime or poses a national security threat.

Dreamers divulged information to the government, expecting that their information would not be shared. The information includes not only potentially incriminating information like date of initial entry and length of stay in the United States, but also details like their names, addresses, school information and Social Security numbers - precisely what the government needs to locate and detain them quickly.

As Zachary Price of the University of California Hastings College of the Law has argued, using such information would constitute entrapment. Courts have thrown out convictions of defendants who were prosecuted based on actions, statements or information they provided when they were assured that their conduct would not lead to adverse action. Dreamers facing deportation could apply the same logic here. Absent that information, it would be much harder, though not impossible, to deport them. Allowing the government to use their information would be, to quote the Supreme Court in a leading entrapment case, "shocking to the universal sense of justice."

This is information that Dreamers would not have given the government without such nondisclosure assurances. They thought they could trust the government. In fact, in some cases lawyers advised clients who were considering applying not to, precisely, they said, because the government couldn't be trusted.

Allowing the government to use the information obtained through DACA to find these individuals and remove them would not only be heartless, but would set a dangerous precedent. Even if Congress, sometime in the future, were to enact a legislative equivalent of DACA, what are the chances that undocumented immigrants would once again put their faith in a government database?

In an interview President Trump gave days after his inauguration, he said that he was looking at the DACA program with a "big heart." Seven months later, many are heartbroken about the loss of a program that has brought thousands of Americans a sense of belonging despite their lack of "papers." But as in so many cases under this still-young administration, the expansive cruelty of the executive branch may yet be tempered by the powers and wisdom of America's legal system.

September 8, 2017

School Improvement Hinges on Access to Student Data

By Chris Elmendorf & Darien Shanske

[Cross-posted from Education Week]

The state should know lots about those students: their standardized-test scores, whether they voted, their criminal records, their income, etc. The state replies that it does not have this information collected in a manner that is accessible. And, to add insult to injury, the state explains that it would not release the information anyway because of privacy concerns.

You decide to proceed with pre-K in your district regardless, but, so that future researchers can learn something, you ask the state if you can assign pupils to the pre-K class through a random lottery given that there will not be enough spots for everyone. The state refuses. A local education researcher asks if you can work together to at least keep track of key administrative data for the children within and without the program. To do that, you need help from the state, but again the state refuses.

That scenario is neither fanciful nor uncommon. Despite some improvements, many states do not maintain the data in a usable manner that education researchers need, much less do they use program rollouts as a regular opportunity to conduct controlled experiments. On the one hand, this failure makes sense. Organizing and managing administrative data is not costless, especially if privacy concerns are properly taken into account. Furthermore, as a matter of practical politics, not much of a constituency exists for the collection of good data that will yield conclusions many years in the future-a time frame that for most politicians or administrators makes no sense.

At the same time, the failure to generate high-quality data is untenable. Education is by far the biggest expenditure made by state and local governments. The cost of collecting good data and making the information available is not even a rounding error compared with state and local education budgets. It would be one thing if educational researchers were doing well enough with the data they have, but the expert consensus is that they are not. And this is not because there is a lack of researchers or analytic methods. (Indeed, something of a revolution is going on in the social sciences when it comes to the use of administrative data. For example, a much-celebrated recent study by Raj Chetty and colleagues demonstrated that social mobility in the United States depends greatly on where a child grows up, based on careful analysis of years of tax-return data.)

If education research is not to be left behind, states need to devote resources to collecting the data and making those data available to researchers. There are models for doing so. In some Nordic countries, each citizen is given an administrative-record number that is used throughout the government. When a researcher requests data, the government provides the data, but using a different set of numbers to protect privacy. That arrangement has enabled education research that would be difficult or impossible to carry out elsewhere, such as studying the effect of publicly provided day care on labor-market outcomes decades later&-just the question our hypothetical superintendent was hoping to answer.

"If education research is not to be left behind, states need to devote resources to collecting the data and making those data available to researchers."

The policy prescription is clear: States should aim to collect and disseminate first-rate educational data. A good place to start on this project is with the checklist provided by the nonprofit Data Quality Campaign, which emphasizes the record-keeping arrangements needed to track students over time and across administrative databases.

States should also organize themselves so that opportunities for controlled experiments are not squandered. In many cases, states already roll out programmatic changes in pieces; it would not cost much more to do so in a manner that enables credible inferences about the reform's effects.

What if a state refuses to take reasonable steps to assess the effectiveness of its biggest outlay? Can the states be forced into self-reflection? We think the answer is yes.

Virtually every state constitution provides for a system of free public schools. Most states have been sued under those provisions, with the plaintiffs claiming that states are not distributing funds equitably or just not spending an adequate amount. Plaintiffs have a mixed record in such suits, though it should be noted that many states changed their educational system because of the threat of such a lawsuit.

As a result, there are many states where the constitutional provision concerning education has been litigated and in which the courts have held that the state has a legally enforceable "duty of care" with respect to education. We argue in a forthcoming law review article that if this duty of care means anything, it must at least mean that states take reasonable efforts to enable the assessment of how their public education systems are performing. That is, leaving aside whether states must spend more money or spend more fairly, they must at least have some reasonable system in place to assess their compliance with the constitutional command to provide a decent public education.

Especially in states with courts that have proven willing to impose dramatic solutions, such as spending and other mandates, we think that even the threat of litigation should motivate state officials to provide education researchers the data they need. To be clear, our vision of states' duty of care with respect to education wouldn't turn children into lab rats. States would still have to protect student records from privacy-compromising disclosures, and state officials-not researchers-would continue to set priorities. But whatever else the states may owe to disadvantaged children in particular, at least the states must make it possible to learn whether their efforts to better educate those children are doing any good.

 

September 1, 2017

With pardon, Trump shows no commitment to U.S. civil rights laws

[Cross-posted from the Davis Enterprise]

By Kevin R. Johnson

Over the weekend, a bipartisan group of political leaders - including Arizona Sens. Jeff Flake and John McCain, as well as House Speaker Paul Ryan, R-Wis. - condemned President Trump's pardon late last week of Maricopa County (Arizona) Sheriff Joe Arpaio.

For more than two decades, the controversial sheriff struck fear into the hearts of immigrants and U.S. citizens of Mexican ancestry in Arizona. A respected federal court judge appointed by President George W. Bush, Murray Snow, found that Arpaio, and his sheriff's office, aggressively - and lawlessly - used racial profiling to enforce immigration laws.

Defeated for re-election in 2016, the controversial sheriff had made a name for himself in unabashedly claiming that he wanted to aggressively enforce U.S. immigration laws. But publicity stunts showed cruelty and insensitivity toward inmates under his protection.

Arpaio, for example, made inmates wear pink underwear and suffer the heat outdoors in scorching Arizona summers. Undocumented immigrants were forced to live in a segregated "tent city" that Arpaio bragged was a "concentration camp."

The nation has faced similar civil rights issues raised by Arpaio's refusal to follow the rule of law. Southern segregationists in the 1950s and 1960s expressed views not that different from those expressed by contemporary alt-right activists and white supremacists. They, too, had to be schooled on the rule of law.

In one of the most famous examples, President Eisenhower in 1957 deployed federal troops to enforce the Supreme Court's decision outlawing segregated schools in Brown v. Board of Education (1954) so that African-American children, known as the Little Rock 9, could attend Little Rock Central High School in Arkansas.

Presidential pardons at times have been controversial. President Ford's pardon of President Nixon for his role in the Watergate cover-up is a leading modern example. However, an American president never has pardoned a person who repeatedly, willfully and intentionally refused to comply with court orders aimed at ending mass violations of the civil rights of racial minorities.

Arpaio was pardoned despite a judge's ruling that found him guilty of criminal contempt. A neutral federal judge, Susan Bolton, presided over the trial on criminal contempt and, after hearing testimony from Arpaio himself, found him guilty.

In addition to the civil rights violations, Arpaio undermined the fundamentals of the legal process. For a law enforcement officer to be found liable for criminal contempt is serious business. This explains why Attorney General Jeff Sessions reportedly told Trump that he could not drop the charges against Arpaio. And it explains why Republicans and Democrats alike are condemning the Arpaio pardon.

Trump has founded his presidency on enforcing the U.S. immigration laws. But his pardon of Arpaio is inconsistent with the rule of law. The president justified the pardon by saying that the sheriff "was just doing his job." However,"his job" as a law enforcement officer does not include breaking the law.

First, Arpaio was found to have engaged in a pattern and practice of racial discrimination in law enforcement against Latinos. Second, Arpaio was punished for intentionally violating court orders. Both offenses are antithetical to the rule of law. The efforts to nullify a court order vindicating the civil rights of vulnerable minorities are precisely the kinds of actions of the Southern segregationists of the 1950s and 1960s.

We are living in a time of deep political division and disturbing challenges to our Constitution. The nation has seen civil unrest unfold as violent clashes, including in California this past weekend, take place between white supremacists and counter-protesters. Trump and his followers have inflamed passions by claiming that immigration laws must be enforced with impunity.

In pardoning Arpaio, however, the president does not appear to be equally committed to enforcement of civil rights laws. He has demonstrated this through his pardon of Arpaio, as well as in his response to the troubling events in Charlottesville.

Trump seems to be siding with those opposed to federal civil rights law - and against the rule of law - by his continued attacks on the independence of the judiciary. That message is not what the nation needs at this time.

 

August 31, 2017

Argument Preview: California Cannabis Coalition et al. v. City of Upland

by · May 26, 2017

[Cross-posted from SCOCAblog]

The California constitution subjects tax increases proposed by a local government to vote at a general election, but does this requirement also apply to an initiative measure proposed by the people themselves? The particular provision of the California constitution at issue, Article XIIIC, section 2(b), added by Proposition 218 in 1996, does not indicate whether or not it also applies to initiative measures. The Court of Appeal decision[1] under review in this case found that this provision did not govern initiative measures. Therefore, under this reasoning, initiative measures do not need to be submitted to a vote at a general election.

Viewed from 20,000 feet, one can see there are two plausible ways to approach the absence of clear instruction as to whether initiative measures are covered by this provision. One might argue that there is a deep principle of California law that the people's power of initiative is to be jealously guarded[2] and thus the judgment of the Court of Appeal should be affirmed. On the other hand, one might argue that Proposition 218 was clearly intended to make it harder to raise taxes. And permitting votes on initiative measures to raise taxes at special elections would make it easier to raise taxes (at least assuming the limitations added by Proposition 218 are effective).

The (somewhat simplified) facts of this case seem to be as dry as the question presented, even though they involve cannabis. The California Cannabis Coalition wanted to place an initiative on the ballot at a special election. The measure arguably imposed a tax on medical marijuana dispensaries and so the City argued that the measure must be put on the ballot at a general election, per the state constitutional rule governing the imposition of taxes.

This case has been much written about in tax circles and drew multiple amicus briefs, almost all arguing that the special Proposition 218 rules should govern initiative measures. Among the amici making this argument are the strange bedfellows The California League of Cities and the California Taxpayer's Association. Indeed, the City is represented by the Howard Jarvis Taxpayer's Foundation. On the other side, the high-powered firm of Munger, Tolles & Olson wrote an amicus brief on behalf of the San Diego Chargers in support of the California Cannabis Coalition.

What then is really going on here? Proposition 218 does not just require that all measures imposing a tax be voted on at a general election. It also requires, crucially, a two-thirds supermajority for the passage of special taxes.[3] This is a high hurdle. If the strictures of Proposition 218 do not apply to initiative measures, then this is a way for the people to tax themselves with only a majority vote.  Imagine the residents of a so-called sanctuary city opting to increase their taxes to counter a loss of federal funds.

Given this broader context, it is easy to understand the interest of advocacy groups that are generally hostile to taxes. Apparently the cities are not happy about the Court of Appeal's ruling because they are worried about losing relative control; the cities will have their revenue measures limited by Proposition 218 but initiatives from the voters will not be so limited. And the Chargers, well, they are apparently interested in getting some help from the public in financing a new stadium and a lower threshold for a tax initiative measure would likely be very helpful.[4] That is, it will be easier to get a majority of San Diego residents to back a tax to help the Chargers, but much harder to get a supermajority.

As indicated, I think the text can be mustered to support either position. Furthermore, the legislative history of the ballot measure, such as it is, contains passages supporting both sides. Proposition 218 was certainly about limiting taxes, but also about limiting taxes by making sure that the voters-not just local politicians-get to vote on taxes. Therefore, the case will be decided on the basis of the background principles that the court brings to its analysis and in particular the importance of the power of the initiative.

It should be noted-though it was not by the Court of Appeal-that there is a California Supreme Court decision that is nearly exactly on point and dispositive. In 1978, Proposition 13 added the requirement that the legislature could only increase taxes with a supermajority.[5] The question then arose whether this requirement also applies to tax increases imposed by the voters. In Kennedy Wholesale,[6] the court acknowledged the broad language of that provision could also apply to initiative measures, but held the requirement did not apply to initiative measures, at least in significant part because of the background assumption about protecting the power of the initiative.[7] To be sure, this case can be distinguished on the basis of different text, different ballot history and even the difference between state and local taxation. But crafting such a distinction will be difficult. First, a different canon of interpretation imputes to the voters knowledge of the law, which would include Kennedy Wholesale. The canon is supposed to put the burden on the party seeking to change the law and thus the absence of any indication that Proposition 218 limits the power of initiative is a problem. Second, if there is an important distinction between state and local level fiscal rules, then this implicates many cases in which the courts have toggled between the two in deciphering California's fiscal constitution.

A final note about political economy. It is an empirical question how significant it would be if the California Supreme Court upheld the Court of Appeal, but there are a few points worth noting.

First, in a world in which the Court of Appeal is affirmed, there will still need to be elections about tax increases (there is an argument made by the appellants that local governments could collude with initiative proponents to get tax increases imposed without an election, but this is a red herring because local governments cannot impose taxes without a vote of the electorate). In other states with similar tax limitation measures, such as Missouri,[8] there is often just the requirement that tax increases be subject to a vote. The underlying political intuition seems to be that taxes are so inherently unpopular that forcing voters to focus on them is tantamount to limiting them. Consider what has happened at the state level since Kennedy Wholesale. The voters of California have indeed approved tax increases via a majority vote, but they have not done so often.

Second, it is true that upholding the Court of Appeal would create an asymmetry between the powers of the people and the powers of government officials. Leaving aside the possible merits of such an arrangement, it is worth noting that the California Supreme Court has already created a not-dissimilar asymmetry through its interpretation of Article XIIIC, section 3. As things currently stand, voters can reduce fees by initiative even after the government has gone through all the procedural requirements for imposing the fee that are mandated by Article XIIID, which was also added by Proposition 218.[9]

Third, it is already the case that general-purpose governments, namely cities and counties, can increase taxes with a majority vote.[10] It is also common practice for these governments to ask for non-binding guidance on how to spend the money that they raise from general tax increases.[11] Thus, it is not clear how much this decision would affect cities and counties.

Finally, the power of initiative is specifically authorized for only cities and counties in the California constitution,[12] and so this decision will have no immediate effect upon special districts, including school districts. That said, the power to impose taxes by initiative could be given to the electors of school districts.[13] Suppose that school district electors were so empowered and that tax increase measures could pass with a bare majority instead of a two-thirds supermajority, as is currently the case. But how much would this matter? School districts have had the ability to finance new capital projects through a 55% vote since 2000 (assuming certain conditions are met).[14] All of this is not to say that there would not be a significant impact should the Court of Appeal decision be affirmed-perhaps schools will find it easier to raise taxes for non-capital costs if current law were changed-only that matters should be kept in perspective.

[1] 245 Cal.App.4th 970.

[2] Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) at 250.

[3] Special taxes are defined in Article XIIIC, section 1(d) as "as any tax imposed for specific purposes, including a tax imposed for specific purposes, which is placed into a general fund." The two-thirds requirement is found in Article XIIIC, section 2(d).

[4] http://www.dailybulletin.com/general-news/20160721/how-the-fate-of-the-san-diego-chargers-could-hinge-on-uplands-marijuana-battle.

[5] Cal. Const. art. XIIIA, § 3.

[6] Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) at 248-49.

[7] Id. at 253.

[8] Mo. Const. art. X, § 22(a).

[9] Bighorn-Desert View Water Agency v. Verjil (2006).

[10] Cal. Const. art. XIIIA, § 2(b).

[11] Coleman v. County of Santa Clara (1998).

[12] Cal. Const. art. II, § 11.

[13] The electors of school districts can use the power of initiative to impose term limits on board members. See Cal. Educ. Code § 35107(c).

[14] Cal. Const. art. XIIIA, § 1(b)(3).

 

August 17, 2017

Sorry, Donald Trump Jr. is Not a Traitor

By Professor Carlton F.W. Larson

[Cross-posted from the Washington Post]

We now know that Donald Trump Jr., a high-level adviser to his father's presidential campaign, attempted to obtain opposition research from the Kremlin. To Trump's opponents, this finally proves explicit collusion between Trump's campaign and the Russian government. Still, it was astonishing to see the defeated candidate for the vice presidency of the United States, Tim Kaine, argue that the son of the incumbent president may have committed treason. He was not the only one to make the allegation, which proliferated on social media; journalists bombarded White House spokeswoman Sarah Huckabee Sanders with questions about "treason."

Assume everything that is being alleged against Donald Trump Jr. is true: that is, he knowingly met with a representative of the Russian government for the purpose of obtaining information, probably illegally obtained, that was harmful to the campaign of Hillary Clinton. Is this treason against the United States?

As a technical legal matter, no, and not even close. Article 3 of the United States Constitution limits the crime of treason to two specific offenses: levying war against the United States, and adhering to their enemies, giving them aid and comfort. It was deliberately crafted to exclude a wide variety of political offenses, such as criticizing the government.

None of the Trump Jr. allegations suggest conduct analogous to levying war against the United States, which generally requires some use of force in an attempt to overthrow the government. Nor does it amount to adhering to the enemy; for purposes of the Treason Clause, an enemy is a foreign nation or group with which the United States is in a state of war, either declared or actual. We are not in a state of war with Russia. In the 1950s, Julius and Ethel Rosenberg were executed for espionage, not treason, because the Soviet Union, although an implacable adversary, was not technically an enemy. We were formally at peace with the Soviet Union then, and we are formally at peace with Russia now.

So for purposes of American treason law, the details of Donald Trump Jr.'s relationship with Russia are irrelevant. He could be a paid foreign agent of Russia; he could take an oath of allegiance to Russia; he could even bug his father's White House bedroom on behalf of Russian intelligence. None of those actions would amount to treason in the narrow sense that our Constitution defines it.

Nonetheless, Trump Jr.'s alleged conduct raises serious questions under other provisions of federal law, all of which will be closely evaluated by Robert Mueller's investigative team. A determination that Trump Jr. did not commit treason is a far cry from finding his actions to be legal. It is against the law, for instance, for U.S. political campaigns to accept anything of value from foreigners.

In a broader sense, though, I understand Kaine's invocation of treason. Coordinating with a foreign government to interfere in American elections is fundamentally wrong, deeply un-American, and, as noted, almost certainly illegal under a variety of federal statutes. In many other countries, this conduct would be obviously treason, no questions asked. Although I am not familiar with the details of Russian law, I have no doubt as to how Vladimir Putin would treat a Russian citizen who coordinated with the CIA to interfere with a Russian election.

American law, however, is different. We have chosen to define treason narrowly, and the body of law dealing with treason is arcane and not always easy to understand. As the U.S. Supreme Court put it in 1945, the Treason Clause's "superficial appearance of clarity and simplicity . . . proves illusory when it is put to practical application. There are few subjects on which the temptation to utter abstract interpretive generalizations is greater or on which they are more to be distrusted. The little clause is packed with controversy and difficulty."

The upshot is a significant gap in our legal vocabulary. We do not have a good term to describe behavior that is not technically treasonous but nonetheless constitutes a betrayal of the United States. I do not have a good solution to fill this gap, but our political and legal discourse would be improved if we had one. In the meantime, even well-trained lawyers such as Kaine will instinctively reach for the label of treason in circumstances similar to those of Donald Trump Jr.