Latest Scholarship

February 4, 2019

Immigration and Civil Rights in an Era of Trump

By Kevin Johnson

[Cross-posted from ImmigrationProf Blog]

The following is a lightly edited version of my Martin Luther King Jr. Lecture at Valparaiso University Law on January 23, 2019.

I am humbled, honored, and in, fact, awed by the opportunity to give a lecture named after Dr. Martin Luther King Jr. Some wonderful speakers, including my friend Angela Onwuachi-Willig, have delivered the lecture.

Located on a beautiful campus in a beautiful town, Valparaiso University School of Law has a long and illustrious history. As the website states, “law is more than a job; it is a vocation: a responsibility and opportunity to serve others.” These nicely put words concisely set an admirable goal for all of legal education.

Martin Luther King Jr., a civil rights icon, is not well-known for his positions on immigration. However, the principles for which his life stands can guide us in thinking about immigration law and its enforcement. Several principles, which I paraphrase here, struck me as particularly relevant:

  1. People should be judged by “the content of their character,” not “the color of their skin.”
  2. “The arc of moral universe is long but bends toward justice.”
  3. “I choose to give my life to those who have been left out.”

I have spent time considering how immigration is one of the civil rights issues of the new millennium. Please do not get me wrong. I in no way mean to suggest that there are no other civil rights issues. Criminal justice, voting rights, equal educational opportunities, and employment discrimination unquestionably are among those civil rights concerns that deserve our attention. I modestly assert that immigration is among the issues that deserve consideration.

The title of my remarks – Immigration and Civil Rights in an Era of Trump – were designed to afford me flexibility in what I talk about.  This is especially important because President Trump regularly has something new, novel, and newsworthy to say about immigration. Almost every day, it seems, we hear something new from the Trump administration about immigration. Indeed, as I deliver this lecture, the nation is in the midst of the longest shutdown of the U.S. government in U.S. history, a shutdown that centers on a dispute over whether billions of dollars of congressional funding should be provided for a wall along the U.S./Mexico border.

Immigration news from Washington, D.C. has been a constant since President Trump’s inauguration. Just a few months ago, President Trump threatened to issue an executive order ending birthright citizenship as provided by the Fourteenth Amendment. He also declared the “caravan” of migrants from Central America to be a national “crises” and “invasion.” Through a number of policy changes, the Trump administration has sought to remake the asylum system, with little regard to the rule of law. I could go on but you get the general idea.

President Trump’s immigration initiatives share two fundamental characteristics.

First, he consistently seeks to reduce immigration and specifically to reduce the number of immigrants of color coming to, and living in, the United States. These actions generally are contrary to the law prohibiting racial discrimination.

Second, despite the frequent claim that the administration is committed to simply enforcing the immigration laws, President Trump attacks judges who issue rulings with which he disagrees, calls for changes to our immigration laws that he claims are ridiculous, and all-too-often ignores the law. For example, President Trump, in my estimation, in many instances has sought to limit asylum eligibility in ways not permitted by Congress. To offer another example, few legal scholars believe that President Trump’s has the power call to abolish birthright citizenship. That proposal exemplifies what is becoming more and more apparent:  President Trump feels little need to adhere to the rule of law. This is especially hard for lawyers and law professors to accept.

In the Immigration Act of 1965, Congress amended the immigration laws to explicitly prohibit discrimination in the issuance of visas on the basis of race, sex, nationality, place of birth, or place of residence. Passed in the wake of the Civil Rights Act of 1964, the 1965 Act repealed laws mandating racial and national origin discrimination in the U.S. immigration laws. The momentum of the civil rights movement led by Dr. King transformed immigration law. In so doing, Congress established a blueprint for immigration diversity, allowing millions of people of color to immigrate to the United States. The nation saw a dramatic rise in immigration from Asia; U.S. law had barred Asian immigration from the late 1800s through the first half of the twentieth century.

The trajectory toward a more diverse nation, however, is likely to change due to a myriad of policies embraced by the Trump administration. Those policies can be aptly characterized as waging war on immigration diversity and the rule of law. President Trump’s immigration actions show a desire to change that diversity, to take the nation back to the past to a time when Asians were excluded, when Mexicans were deported with impunity.

President Trump’s racial goals should not be surprising. Unlike any president in modern U.S. history, he regularly makes racially-explosive comments about immigrants. Consider a few:

  •  
    • Mexicans are “rapists” and “criminals”;
    • Salvadorans are MS-13 gang members;
    • Muslims are “terrorists” who should be subject to “extreme vetting”; and
    • El Salvador, Haiti, and nations in Africa are “s***hole countries” and the United States should not be providing safe haven to citizens of those countries.

President Trump has followed up on the incendiary rhetoric with a number of policies, many of them in tension with, if not in outright violation of, the law. In sum, the Trump administration has taken some of the most aggressive immigration enforcement policies in modern U.S. history. The policies almost all aim to restrict noncitizens of color from immigrating to the United States.

I am working now on an article about what I characterize as the “new Latino repatriation.” It shows how many of the administration’s immigration measures in total replicate (1) the Mexican repatriation of the 1930s, in which state, local, and federal governments forcibly “repatriated” persons of Mexican ancestry, including U.S. citizens, to Mexico; and (2) “Operation Wetback” in 1954, a military-style effort to remove Mexican immigrants in the Southwest. Not coincidentally, President Trump has endorsed "Operation Wetback" -- without using its official name -- as a legitimate policy approach to manage migration today.

Consider a few of the Trump administration policies that demonstrate the President’s desire to restrict immigration diversity and, in some instances, have been found to be unlawful.

1.   The Travel Bans

Within days of his inauguration, President Trump issued an executive order that was intended to bar immigrants from a number of predominantly Muslim nations from entering the United States. The original travel ban was not carefully done and included obvious legal flaws. It, for example, was not clear whether it applied to lawful permanent residents. When the courts enjoined the first travel ban from going into effect, President Trump issued a revised version. The courts struck down the second version as unlawful and, in no small part, because of the President’s anti-Muslim statements. Although a 5-4 Supreme Court in Trump v. Hawaii upheld the third draft of the ban, four Justices would have concluded that the executive order was motivated by anti-Muslim animus, not national security concerns.

2.    “Chain Migration” and Reforming Legal Migration

President Trump has called for ending “chain migration” and dramatically restricting family-based immigration to the United States. In that vein, he has expressed support for the RAISE Act, which would reduce legal immigration by one-half through reducing family-based immigration. That change would have the greatest impact on prospective immigrants from Mexico, India, and China, the nations that today send the most immigrants to the United States. And cutting legal immigration would likely increase pressures for undocumented migration, as many noncitizens without lawful options for rejoining family will seek to rejoin family members without authorization.

The Trump administration also has sought to restrict legal immigration with a proposed rule that would tighten the “public charge” exclusion. The result is that many immigrants now decline to seek public benefits to which they are lawfully entitled. The rule also would limit migration of poor and working people to the United States, an outcome contrary to the “huddled masses” welcomed in the famous inscription on the Statue of Liberty. In a similar vein, the Trump administration has drastically cut the numbers of refugees admitted into the United States each year.

3.    “Zero Tolerance” Policies

The Trump administration’s “zero tolerance” policies have targeted migrants from Mexico and Central America. In response to Central Americans seeking asylum, the Trump administration adopted a harsh detention and family separation policy, blaming the policy on the Democrats and the courts.  A public outcry and litigation compelled the Trump administration to end family separation.  As the 2016 midterm elections neared, similar rhetoric was used against asylum seekers from Central America – known as the “migrant caravan” – who were in route to the U.S. border.  Working to build a “crisis” mentality among the general public, President Trump has been waging war on asylum.

a.    Central American Asylum Applicants

Courts have played important roles in halting the administration from engaging in racially charged policies designed to stop Latinx families from immigrating to the United States. In particular, the courts have upheld the rights of immigrant children subject to detention under what is known as the Flores settlement, to which President Clinton's Justice Department agreed in 1997.  The Trump administration has railed against compliance with the settlement.  It has proposed to undo the Flores settlement so that the administration can indefinitely detain immigrant children and their families.

Other presidents have taken steps to deter Central American asylum seekers from seeking relief in the United States. But none have taken measures as harsh as those adopted by the Trump administration.

b.   Sanctuary Cities

The Trump administration has challenged “sanctuary” states and cities for refusing to fully cooperate with the U.S. government in immigration enforcement. Although the courts have for the most part blocked those efforts, the administration has tried to halt the flow of federal funds to “sanctuary” cities.   Seeking to capitalize politically on tragedies, President Trump has been quick to blame sanctuary jurisdictions for crime.  It is odd that conservatives -- the traditional defenders of state and local rights when it comes to civil rights -- today challenge local authority and autonomy with respect to immigration and immigrants.

c.    DACA

The Trump administration has sought to eliminate the Obama administration's Deferred Action for Childhood Arrivals (DACA) policy for undocumented youth.  The policy benefited hundreds of thousands of young undocumented immigrants, with more than 80 percent from Mexico and Central America. Courts have enjoined the rescission of DACA.

d.    TPS

The Trump administration announced the end of Temporary Protected Status for Haitians, Salvadorans, Nicaraguans, Hondurans and nationals of other developing nations. TPS allows nationals of nations hit by mass violence or natural disaster to remain temporarily in the United States.  More than 200,000 Salvadorans are threatened with the loss of TPS relief. To this point, courts have enjoined the end of TPS for nationals of El Salvador and other nations..

e.    Removals           

The Trump administration has aggressively increased removals and adopted approaches that would ensure that more than 95 percent of the noncitizens removed are from Mexico and Central America.  Although many of the crime-removal programs are being carried forward from the Obama administration, the new administration has expanded the efforts and the crimes for which removal will be sought.

****

These policies together would significantly reduce diversity in the number of immigrants admitted to, and permanently reside, in the United States. Importantly, such policies violate the spirit if not the letter of the 1965 amendment to the immigration laws and Congress’s goal of promoting diversity in immigration.   The courts have halted many of the more egregious violations of the law.  The defunding of sanctuary cities has been halted.  DACA’s rescission has been halted. Stripping of TPS has been stopped.  Although the travel ban eventually went into effect, litigation refined and narrowed the ban.

Conclusion

Courts time and again have prohibited the Trump administration from pursuing immigration policies that violate the law. Legal and political attention must continue to be paid to these policies in order to prevent the country from returning to its pre-1965 law that fostered predominantly white immigrants white nation.  Put simply, the unlawful war on immigrant diversity should not be permitted to continue. Political organization has been one response to the Trump immigration enforcement measures.  The rise and fall of DACA energized immigrants’ rights activism and marked the ascendance of a political movement. That may be one of the most important long term impacts of DACA.  An “Abolish ICE” movement has emerged.  Congress has the opportunity to act to reform and improve the immigration laws.

I think that Martin Luther King Jr. would condemn the unjust immigration initiatives of the Trump administration.  He would object to judging immigrants by the color of their skin, not the content of their character.  He would see the current initiatives as contrary to the arc of justice.  Last but not least, Dr. King would call for us to protect immigrants who are “left out” and deserve our protection.

February 4, 2019

Commemorating a Major Environmental Disaster–One With a Transformative Legacy

By Rick Frank

[Cross-posted from LegalPlanet]

1969 Santa Barbara Oil Spill Sparked the Beginning of America's Modern Environmental Era

This week marks the 50th anniversary of one of the most serious and consequential environmental disasters in American history–the Santa Barbara offshore oil spill of 1969.  On January 28, 1969, an offshore oil rig (Platform A) owned and operated by the Union Oil Company and operating in federally-controlled waters in the Santa Barbara Channel off the California coast, blew out.  Over the next 10 days, between 80,000-100,000 barrels of crude oil spilled into the Channel and onto California beaches, stretching from San Luis Obispo County south to San Diego–though the majority of the spill-related damage occurred in Santa Barbara and Ventura Counties.  That oil spill killed approximately 3,500 seabirds and an unknown but substantial number of marine mammals including dolphins, elephant seals and sea lions.  The spill was not completely capped until early 1970

A half century later, the Santa Barbara oil spill remains the third largest oil spill in U.S. history, after only the Deepwater Horizon spill in the Gulf of Mexico (2010) and the Exxon Valdez oil spill in the ocean waters of Alaska’s Prince William Sound (1989).

In many ways, however, the January 1969 Santa Barbara spill remains the most consequential and transformative environmental disaster in American history.  That’s true for several related reasons.  First, it was the inaugural such environmental disaster captured and broadcast into millions of U.S. households on the evening news.  For weeks, the major TV networks provided gripping, daily accounts of the biological damage and adverse economic effects produced by the Platform A blowout.  And that had a profound effect on the national psyche, with televised footage of dead and dying animals, fouled beaches and oil-saturated ocean waters underscoring in the most stark way the myriad costs associated with oil and gas development in coastal waters.

Second, the Santa Barbara oil spill provoked a strong and immediate response from government leaders.  Local officials complained bitterly to the media and public about the lack of adequate environmental controls and oil spill response efforts, noting presciently that the federal government that had issued the oil and gas leases–thereby earning substantial royalties from the oil companies’ offshore development activities–had an inherent conflict of interest when it came to regulatory oversight of those same activities.  Federal officials had a more muted reaction to the spill: President Richard Nixon visited the area to view the spill and cleanup efforts on March 21st, telling the assembled crowd, “…the Santa Barbara incident has frankly touched the conscience of the American people.”  But on April 1st, a hastily-adopted, temporary federal drilling ban was lifted, and oil and gas development in federal waters resumed off the California coast.

Longer term, however, the Santa Barbara spill would have a direct and positive effect on American environmental policy and law.  Later that year, Congress would enact the National Environmental Policy Act (also a half century old this year).  And NEPA was but the first in a torrent of environmental legislation passed by Congress over the next decade–including the Clean Air Act, Clean Water Act and Endangered Species Act–that to this day remains the basic framework of federal environmental law.

Environmental activism is another direct outgrowth of the 1969 Santa Barbara oil spill.  The next year, U.S. Senator Gaylord Nelson of Wisconsin led efforts to organize the first Earth Day, an annual celebration of the environment and environmental values that continues to this day.  Additionally, local, state and national environmental organizations saw their membership ranks swell in the wake of the Santa Barbara oil spill.

The Santa Barbara oil spill also catalyzed a state government response that quickly made California a national and international leader when it comes to environmental policy and law.  In the immediate wake of the disaster, the Republican-dominated California Legislature created an interim Committee on Environmental Quality, directing it to develop recommendations for state environmental legislation.  The most important outgrowth of that initiative was passage in 1970 of the California Environmental Quality Act; modeled on but significantly stronger than NEPA; CEQA remains California’s most important, cross-cutting environmental law, as well as the most powerful “little NEPA” statute in the nation.  And when the California Legislature balked at passing a law specifically designed to prevent ocean and coastal damage exemplified by the Santa Barbara oil spill, state voters responded by enacting an initiative measure in 1972 creating the California Coastal Commission and the most powerful system of coastal regulation and preservation in the nation.

Last but not least, the Santa Barbara spill had a transformative on academia and education.  In direct response to an environmental disaster that severely damaged its own coastal campus, the University of California, Santa Barbara immediately created the nation’s first environmental studies program, featuring such luminary professors as human ecologist Garrett Hardin and environmental historian Roderick Nash.  Fifty years later, environmental studies programs are an essential part of the curriculum at most of the nation’s colleges and universities.  Similarly, environmental law is a key area of specialization at U.S. law schools, and environmental law centers and clinics play a critical role at many of America’s top law schools–including the three University of California law schools that contribute to this blog site.

To be sure, the 1969 Santa Barbara oil spill was a major environmental disaster, one that caused considerable environmental damage to the ocean environment and economic havoc to California’s coastal communities.  But the silver lining (if one can call it that) to that disaster from a half century ago is that it–perhaps more than any other single event–brought the need for ecosystem protection and environmental regulation to America’s collective consciousness and ushered in the modern era of environmental law, policy and advocacy.

As we reflect on the 50th anniversary of the Santa Barbara spill, that’s a most welcome legacy of a truly horrific event.

January 22, 2019

Newsom’s picks for environmental protection and water chiefs will reveal his priorities

By Rick Frank

[Cross-posted from the San Francisco Chronicle]

One of the keys to former Gov. Jerry Brown’s success as California’s chief executive over the past eight years was the stellar group of individuals he recruited as his top environmental and water officials. Gov. Gavin Newsom’s initial, senior environmental appointments suggest that he is wisely following in Brown’s footsteps. Californians can only hope his water leadership team turns out to be equally strong.

Newsom’s first two environmental appointments are his most important, and his choices are impressive indeed.

Jared Blumenfeld will serve as his secretary for environmental protection. Blumenfeld and the governor have a long history together: After working in Newsom’s mayoral administration as San Francisco’s director of the environment, Blumenfeld served with distinction as Region IX (West Coast/Pacific Rim) administrator for the U.S. Environmental Protection Agency in the Obama administration. In his new state role — a Cabinet position in the Newsom administration — Blumenfeld will oversee the sprawling California Environmental Protection Agency, supervising California’s pollution control, toxic waste management and water rights programs.

Wade Crowfoot was named secretary for natural resources. Crowfoot, another alum of Newsom’s mayoral administration, also previously served as deputy Cabinet secretary and senior adviser to Brown. Most recently, Crowfoot has been the chief executive of the Water Foundation, a think tank focused on water issues in California and the American West. At the Natural Resources Agency, Crowfoot will lead California’s natural resource management efforts, including the state’s climate change adaptation planning initiatives.

Also, California Air Resources Board Chair Mary Nichols — perhaps the single most high-profile and widely respected environmental official in the Brown administration — has agreed to continue in that role for at least the first phase of Newsom’s administration. That’s very good news, especially because it assures Nichols’ continuing leadership in achieving California’s ambitious, pioneering greenhouse gas reduction goals. Nichols has guided the air board since 2007 and served an earlier stint in the 1980s.

Far less settled is how Newsom will fill his administration’s most important positions regarding state water policy. One of Newsom’s key tests confronts him immediately: State Water Resources Control Board Chair Felicia Marcus’ term expires this week. Newsom should reappoint Marcus to another term as chair of the water board, which both oversees California’s multifaceted water pollution control programs and administers the state’s always fractious water rights system. She’s done a masterful job over the past six years — most prominently in leading California’s successful efforts to respond to the unprecedented 2012-2017 drought. Marcus has the experience, leadership ability and people skills to continue to lead the board effectively in the coming years as the state works to craft regulations to protect cities, farms and fish.

Another critical decision for the new governor is whom to appoint as director of the state Department of Water Resources. In the past, the department director’s most important job was to oversee operation of the State Water Project. In recent years, that role had become more complicated — and contentious — because of Brown’s support of California Water Fix (also known as the delta tunnels) project. Brown proved unable to get his legacy water initiative to the finish line. It’s still an open question whether Newsom will continue to pursue or abandon the controversial tunnels.

In either case, Newsom’s water resources director will be the state’s point person in addressing a State Water Project that’s in precarious shape — both as an unreliable water delivery system and because of its undisputed, deleterious effect on a delta ecosystem in a state of ecological collapse.

The Department of Water Resources recently has taken on an increasingly prominent role under the Sustainable Groundwater Management Act, a law passed in 2014 that sets in motion a plan to manage the state’s groundwater basins, which supply a significant amount of the state’s water. That landmark legislation gives the department a lead role in assisting regional “groundwater sustainability agencies” to formulate plans to make California’s chronically over-drafted groundwater basins sustainable in the future. It will be the department’s job to evaluate those plans over the next several years to ensure that the water pumped out doesn’t exceed the amount recharged by nature or man.

To fulfill these responsibilities, Newsom’s director of water resources will have to command the respect of state water agencies, agribusiness and environmental groups. That, in turn, will require technical ability, vision, leadership and extraordinary diplomatic skills.

Newsom’s selection will serve as an early indicator of the governor’s water policy priorities.

 

January 14, 2019

President Trump Again Calls for Billions for a Wall and for Congress to Address the 'Border Crisis'

By Kevin R. Johnson

[Cross-posted from ImmigrationProf]

Last night (Jan. , President Trump delivered a prime time speech titled "Humanitarian and National Security Crisis on the Southern Border."  Here is the textHere is the CNN "fact check." 

It was President Trump's first prime time speech from the Oval Office [watch here].  The President apparently sought to build support for his adamant stand to force Congress to fund the "border wall," a position that has led to the shutdown of the federal government. 

I eagerly watched the speech in real time and was struck by President Trump's flat and relatively subdued reading of the remarks -- remarks that differed little from his general stump speech on "the wall," the looming border "crisis, and immigration generally.  The speech was a relatively short 8-9 minutes. 

President Trump discussed what he characterized as "uncontrolled illegal migration."  He repeated the claim that undocumented immigration most hurts African American and Hispanic workers, which contrasts sharply with his general insensitivity toward African American and Latino civil rights.  The President Trump also emphasized that drugs flow across the border that kill millions of Americans annually and cost the nation billions of dollars. 

In building up the sense of crisis, the President mentioned "criminal gangs" and human traffickers. Ultimately, Congress must address this "crisis of the heart" and "crisis of the soul."  

President Trump invoked various crimes committed by undocumented immigrants, including the recent tragic killing of a sheriff in the Central Valley of California, and MS13.  He rhetorically asked "how much more American blood must we shed?"

President Trump stated that he has made a proposal to Congress that would end the "crisis."  The proposal -- explained in this fact sheet -- would add resources to border enforcement, including $5.7 billion for a "steel barrier" along the U.S./Mexico border.  He sees the barrier and heightened enforcement measures as "just common sense."

President Trump went on to criticize the Democrats for the government shutdown and depriving the government of the resources to do what is needed to ensure border security.  His is the "only solution" that defends the borders and will reopen the federal government.  To facilitate matters, President Trump said that he would invite congressional leaders to meet. 

After President Trump's speech, House Speaker Nancy Pelosi (D-CA) and Senate Democratic Leaders Chuck Schumer (D-NY) responded. Watch the video.  They blamed President Trump for the shutdown and for attempting to create a climate of "misinformation, malice, and fear" surrounding immigration and the border.  Pelosi emphasized that the migrant children at the border "are not a security threat but a humanitarian challenge."  Schumer stated that President Trump's attempt to concoct a crisis was an effort to "divert attention" from his failing government.

After listening to President Trump and the Democratic response, I found myself uncertain about the prospects for coming to an agreement that will allow for a reopening of the U.S. government.  The President is not moving.  The Democrats are not moving.  Only time will tell where the nation goes from here.  Perhaps it has been said too often in the first years of the Trump administration but it does seem as if we are in uncharted waters.  And no one can say what lays ahead.

UPDATE (4:15 PST Jan. 9): President Trump in his speech talked of meeting with Democratic leaders.  It appears that the meeting did not go well as the dueling speeches did not leave much room for negotiation.  According to CNN, President Donald Trump walked out of discussions to end the government shutdown, calling the talks with congressional Democrats "a total waste of time."

 

January 7, 2019

Assessing–and Celebrating–California Governor Jerry Brown’s Environmental Legacy

By Rick Frank

[Cross-posted from LegalPlanet]

Governor Brown Easily Ranks as the Top Environmental Governor in State History

Don’t it always seem to go

That you don’t know what you’ve got

`Til it’s gone

        –Joni Mitchell (“Big Yellow Taxi”)

On this, the last day of Jerry Brown‘s tenure as California’s governor, it’s appropriate to reflect on Governor Brown’s environmental legacy.  And a most formidable legacy it’s been.

Brown has, quite simply, been the most environmentally conscious and effective governor in California’s 169-year history–by a wide margin.  While he’s served four full four-year terms as Governor, it is over his most recent two terms (2011-19) that Brown’s environmental leadership and achievements have been most prominent.

To a considerable degree, the success of Governor Brown’s administration can be attributed to the assemblage of top leaders he recruited and appointed to the state’s most important environmental positions.  Here’s a brief list:

California Secretary for Environmental Protection Matt Rodriquez has been the most effective CalEPA Secretary in the history of that office.  Leading a sprawling cabinet-level agency, Rodriquez has ably led California’s pollution control and water resource management efforts.  One of his most important achievements has been directing California’s successful efforts to transform environmental justice from an aspiration into a tangible set of goals and programs.

Secretary for Natural Resources John Laird has been quietly effective in directing California’s natural resource management agencies, implementing the California Environmental Quality Act and leading the state’s climate change adaptation efforts.  One of Laird’s first challenges was to address–successfully–some longstanding problems the Brown Administration inherited at the state Department of Parks and Recreation and the Department of Conservation’s Division of Oil and Gas.  Once those reforms were implemented, the Natural Resources Agency has operated smoothly and well under Laird’s direction.

The Brown Administration’s most high-profile environmental official is Mary Nichols, Chair of the California Air Resources Board.  Nichols actually served as Governor Brown’s CARB Chair twice–in his first administration in the 1970’s and `80’s, and then again during his most recent two terms as governor.  Under Nichols’ stellar leadership, CARB has emerged as the nation’s most respected and effective regulatory agency concerning both conventional air pollution control and in implementing California’s pioneering greenhouse gas emission reduction goals.  (Fortunately, Nichols has agreed to continue her leadership role at CARB for at least the first phase of Governor-elect Gavin Newsom’s incoming administration.)

Similarly, Felicia Marcus has proven to be a most effective leader of the influential State Water Resources Control Board.  The Board oversees California’s myriad water pollution control efforts, and also administers the state’s complex (and always-controversial) water rights system.  A veteran environmental lawyer and policymaker, Marcus has been especially effective in leading California’s drought response efforts during Governor Brown’s recent tenure.  The five-member Water Board appointed by Governor Brown is the most progressive in the history of the Board.  (One of incoming Governor Newsom’s most consequential, initial personnel decisions will be whether to reappoint Marcus as Chair of the Water Board.  He should.)

Ken Alex has worn two environmental hats in the Brown Administration over the past eight years: as Director of the Governor’s Office of Planning and Research, he has revived a previously-moribund office, led the state’s land use planning efforts and chaired California’s Strategic Growth Council, which is responsible for coordinating the state’s multifaceted climate change programs.  Alex also has been Governor Brown’s most prominent day-to-day environmental advisor “inside the horseshoe.”  One of his most outstanding achievements has been leading Governor Brown’s efforts to forge greenhouse gas reduction agreements with scores of subnational governments around the world.

Another excellent Brown appointee has been Chuck Bonham, Director of California’s Department of Fish and Wildlife.  Once a backwater agency primarily responsible for issuing fishing and hunting licenses and setting fish and game limits, the Department in more recent years has been delegated a wide array of environmental responsibilities: administering California’s Endangered Species Act; oil spill response; CEQA consultation; and ecosystem management.  The Department of Fish and Wildlife has in the 21st century been one of the “lightning rod” agencies of California state government.  But under Bonham’s steady leadership, the Department has prospered and earned widespread respect.

Governor Brown also deserves kudos for his thoughtful appointments to numerous other state boards and commissions responsible for environmental policymaking.  His appointees to the California Public Utilities Commission have dramatically improved the policies and culture of that previously-troubled agency.  Brown’s appointees to the California Energy Commission and California Coastal Commission have similarly made those bodies more effective and respected.  And Governor Brown’s appointments to the bistate Tahoe Regional Planning Agency include Clem Shute and Bill Yeates, two of California’s most well-respected and thoughtful environmental lawyers.

Ultimately, however, it all comes back to Governor Jerry Brown.  And Governor Brown’s environmental accomplishments go well beyond making a stellar batch of executive appointments.  Over the past eight years, Brown has demonstrated a commanding and prescient vision when it comes to energy policy, water issues and–most importantly–climate change policy.  That vision has been especially critical over the last two years of Brown’s governorship, when he’s emerged as a state bulwark against the misguided and unprincipled environmental policies emanating from Washington, D.C.  Finally, Governor Brown’s environmental leadership extends to serving as California environmental educator-in-chief: he’s been willing to speak directly and clearly to 40 million Californians about climate change, renewable energy, finite state water supplies and wildfire response.  And he’s done so most effectively over the past eight years.

To be sure, Governor Brown’s environmental record is not perfect: for example, he’s received criticism from environmental groups for his policies regarding oil drilling and fracking.  In recent months, Brown has seemed too willing to bend environmental rules to direct more water to California’s agribusiness interests.  And he leaves office without having been able to forge strong public support behind one of his legacy projects, bringing a high speed rail system to California.

But it would be a mistake to let the perfect be the enemy of the good when it comes to Governor Brown’s environmental legacy.  There’s little doubt that history will view Brown as the most visionary and effective environmental governor in state history.  And that, to this observer, is a most accurate assessment.

As Joni Mitchell aptly observed, you don’t know what you’ve got `til it’s gone.  As he departs the Governor’s Office, let’s take a moment to reflect on and celebrate Jerry Brown’s environmental record.

Here’s offering a tip of the cap, Governor Brown.  When it comes to California’s environment, you will be most sorely missed.

 

January 2, 2019

Episode 30: "The 25th Amendment"

The latest episode of the "What Trump Can Teach Us About Con Law" podcast explores President Grover Cleveland's secret surgery, the 25th Amendment, and what the Constitution tells us about presidential fitness, disability and President Donald Trump.

 

January 2, 2019

Top 10 immigration stories of 2018

By Kevin R. Johnson

[Cross-posted from ImmigrationProf]

Trump

1. President Donald J. Trump

Day in and day out in 2018, President Trump was at the center of the nation's immigration news.  Building on his immigration policies during his first year as President, Trump continued to push the most aggressive set of immigration enforcement measures of any modern U.S. President.  Indeed, he ended the year on a high profile note.  When Congress refused to meet his demand for $5 billion in funding for a wall along the U.S./Mexico border, President Trump was willing to shut down the entire U.S. government at year end.  As of this writing, there is no end to the shutdown in sight. 

From day one of his campaign for the presidency, Trump has pushed the border wall.  And nothing has changed.  Earlier this month, the President tweeted the image below of a design for the wall, remarking: "Our Steel Slat Barrier which is totally effective while at the same time beautiful."

Detention, including the family separation policy discussed separately below, has been one of the focal points of the Trump administration's immigration enforcement policy.  The conditions of detention have been under fire.  That is likely to continue because, in December, two children in immigrant detention died, provoking controversy and concern.

The Trump administration's initiatives are too many to list here.  Still, a few are worth highlighting.  The Trump administration announced the end of Temporary Protected Status for approximately 200,000 Salvadorans.  The administration also stripped TPS status from Hondurans, Nicaraguans, Sudanese, and Haitians.  It also proposed tightening the "public charge" rule for admissions and limiting eligibility to asylum seekers to those who presented themselves at ports of entry.  The Department of Commerce's proposed a citizenship question on the 2020 Census provoked controversy and litigation.

2. U.S. Government Shutdown Over Border Wall

With Congress and the President at an impasse over border wall funding, the U.S. government suffered a partial shutdown.  There also was an earlier shutdown over immigration.  Although the news was jolting in the beginning, the nation handled the holidays well-enough without a budget and a federal shutdown.

A two-year-old Honduran asylum seeker cries as her mother is searched and detained near the U.S.-Mexico border (John Moore/Getty Images )

3. Family Separation Policy

To deter Central Americans, including many women and children fleeing rampant gang and other violence, from coming to the United States, the Trump administration adopted a policy of separating parents and children  in immigrant detention.  The family separation policy provoked mass protests and bipartisan resistance.  Pictures like the one above galvanized the nation.  Ultimately, President Trump ended family separation.  But his administration took months to reunite families.

=caravan

Central American immigrants take part in a caravan heading to the United States on the road linking Ciudad Hidalgo and Tapachula, Mexico, on October 21, 2018. Pedro Pardo / AFP / Getty

4.  The Caravan

Over the year, President Trump on several occasions attacked the "caravan" of Central Americans coming to the United States.  Photos of the caravan provoked concern.  Republicans, including President Trump, used the specter of "the caravan"  to build support for extreme immigration enforcement measures.  President Trump characterized the caravan as an invasion and tried to use it in an attempt to spark a Republican comeback in the midterm electionsMission was not accomplished and the Democrats regained control of the House!

 

 Sct

5.  Supreme Court

The Supreme Court continued its steady diet of  immigration cases and immigrants continued to win more than they lost.  In the 2018 Term, the Court struck down as unconstitutional two provisions of the immigration laws.  At the same time, in a 5-4 vote, the Court upheld the third draft of the "travel ban" in Trump v. Hawaii

This Term, the Court heard arguments in an immigrant detention case.  The Trump administration has made detention a core part of its overall immigration enforcement strategy.

More recently, the Court in December refused to stay an injunction barring implementation of President Trump's new restrictive asylum policy.

At some point in the future, the Court will likely decide whether the Trump administration should be permitted to rescind DACA, which to this point been enjoined by three federal courts.  See below.

330px-Jeff_Sessions _official_portrait

6.  Jeff Sessions Steps Down as Attorney General

Attorney General Jeff Sessions was an immigration hawk and Trump loyalist.  Among other things, he oversaw efforts to pressure immigration judges to close open cases and narrow asylum eligibility.  Sessions also took on -- mostly losing -- efforts to fight "sanctuary" states and cities.  Because of President Trump's unhappiness with Sessions over his recusal in the Robert Mueller investigation,  Sessions was forced out.  He took so many insults and barbs from the President that some Democrats almost felt sorry for him.

7. The Rescission of DACA

In September 2017, Attorney General Sessions announced the rescission of DACA.  As I have written, the rise and fall of DACA will likely affect the future of immigration law.  Three courts have enjoined the rescission of the policy and Ninth Circuit affirmed an injunction.  It may take a while but the Supreme Court ultimately will likely decide the fate of the DACA rescission.

8.  Midterm Elections

Despite President Trump and others seeking to make immigration enforcement the central campaign issue, the Republicans kept the Senate but lost the House.  The new Democratic House is likely to put the administration, and its immigration policies, under scrutiny.

330px-Associate_Justice_Brett_Kavanaugh_Official_Portrait

9.  Brett Kavanaugh is confirmed as a Justice on the Supreme Court.

It was not pretty but the Senate confirmed conservative Brett Kavanaugh as an Associate Justice on the Supreme Court.  Given his record on the U.S. Court of Appeals for the District of Columbia Circuit, which does not hear many immigration cases, it is hard to predict how he will approach immigration cases.  With a limited record on immigration, there are only hints of his views on the topic, including some from dissents in cases involving a teen immigrant detainee seeking an abortion and an immigration employment case.

10.  Death on the Border Continues

Maybe this does not make the headlines, but deaths of migrants on the U.S./Mexico border continue.  Increased enforcement in major border cities has resulted in migrants traveling through mountains and deserts where they are more likely to die.

Death on the Border: The Thousands of Bodies Along the US-Mexico Border

The death toll mounts but nothing seems to happen.  Is there anyone out there?

HONORABLE MENTION

UC_Berkeley_School_of_Law_logo.svg

Boalt Hall Changes Name:  Yes, this has an immigration angle.  UC Berkeley School of Law has long gone by the name "Boalt Hall."  It was named after John Boalt, who  published an anti-Chinese screed at the height of the Chinese exclusion era.  A committee recommended a name change and UC Berkeley School of Law, or Berkeley Law, is now the official name of the school.  Here is the Berkeley Law explanation of the name change.

December 10, 2018

Trump must obey decades-old asylum law

By Kevin R. Johnson

[Cross-posted from the Sacramento Bee]

President Donald Trump, determined to demonstrate he is tough on immigration, is attempting to eliminate a path to legal immigration status that American leaders have respected for more than three decades.

Last month, Trump issued an order that would prohibit people who enter the country unlawfully from seeking asylum because they fear persecution. A federal judge rightly concluded that the order violated the law.

The president has cast asylum-seekers from Central America as criminals and terrorists. In reality, many are women and children fleeing brutal and deadly violence and lawlessness — in other words, the people for whom the Refugee Act of 1980 was written.

The act provides that “(any) alien who is physically present in the United States (whether or not at a designated port of arrival), irrespective of such alien’s status, may apply for asylum.”

The law has long been interpreted as allowing undocumented immigrants apprehended in the United States to apply for asylum when the government seeks to remove them from the country.

Noncitizens must apply within a year of arriving and must satisfy a formidable burden of proof, showing persecution or fear of persecution based on their race, religion, nationality, membership in a particular social group or political opinion. If they can prove their case, they are afforded lawful permanent resident status and ultimately can become eligible for citizenship.

Large groups of migrants sought asylum under other presidents, but no other modern president took the extreme step of eliminating eligibility for an entire group of potential applicants.


Read more here: https://www.sacbee.com/opinion/op-ed/article222580505.html?fbclid=IwAR3ObPmigzYsv1jcxlOfH1sAvBRCew1YOHYaBhJqEO0uC3v0rt3b97-4HAY#storylink=cpy

President Jimmy Carter detained thousands of Cubans who fled communism in the Mariel boatlift in 1980. President Ronald Reagan detained asylum-seekers fleeing civil wars in Central America. Asylum claims in those cases were considered even for migrants who unlawfully entered the country.

Presidents George H.W. Bush and Bill Clinton took a more questionable approach toward Haitian asylum-seekers, but it still complied with the letter of the law. Coast Guard cutters interdicted boats of Haitians on the high seas and returned them to Haiti. They could apply for asylum at the U.S. embassy in Port-au-Prince but were kept from reaching the country.

The Haitian approach evolved into the “feet wet, feet dry” policy in which migrants who made it to U.S. territory were permitted to apply for asylum while those who were halted on the seas were returned to their homelands.

Courts have repeatedly stopped the Trump administration’s immigration enforcement policies for violating the law. Courts barred the administration from stripping federal funding from “sanctuary” jurisdictions. Courts halted the rescission of the Deferred Action for Childhood Arrivals policy. Courts stopped the elimination of temporary protected status for Salvadorans, Haitians, and others. While the Supreme Court ultimately upheld the third draft of the “Muslim” ban, the lower courts invalidated two versions of the ban.

Asylum is a cherished form of relief under U.S. law. It helps correct for our failures as a nation, such as turning our backs on Jews fleeing Nazi persecution during World War II. Congress carefully crafted the Refugee Act to ensure the availability of humanitarian relief for bona fide refugees.

President Trump should not be permitted to break the law by fiat and declaring some noncitizens ineligible, even if he finds compliance with the law costly, inefficient or annoying.


Read more here: https://www.sacbee.com/opinion/op-ed/article222580505.html?fbclid=IwAR3ObPmigzYsv1jcxlOfH1sAvBRCew1YOHYaBhJqEO0uC3v0rt3b97-4HAY#storylink=cpy

Read more here: https://www.sacbee.com/opinion/op-ed/article222580505.html?fbclid=IwAR3ObPmigzYsv1jcxlOfH1sAvBRCew1YOHYaBhJqEO0uC3v0rt3b97-4HAY#storylink=cpy

Read more here: https://www.sacbee.com/opinion/op-ed/article222580505.html?fbclid=IwAR3ObPmigzYsv1jcxlOfH1sAvBRCew1YOHYaBhJqEO0uC3v0rt3b97-4HAY#storylink=cpy

The act provides that “(any) alien who is physically present in the United States (whether or not at a designated port of arrival), irrespective of such alien’s status, may apply for asylum.”

The law has long been interpreted as allowing undocumented immigrants apprehended in the United States to apply for asylum when the government seeks to remove them from the country.


Read more here: https://www.sacbee.com/opinion/op-ed/article222580505.html?fbclid=IwAR3ObPmigzYsv1jcxlOfH1sAvBRCew1YOHYaBhJqEO0uC3v0rt3b97-4HAY#storylink=cpy
December 10, 2018

Auctioning the Upzone: A New Strategy for Inducing Local-Government Compliance with State Housing Policies

By Christopher Elmendorf and Darien Shanske

[Cross-posted from Legal Planet]

California’s housing policies–a topic that for years received precious little attention from state officials–has suddenly become the Golden State’s hottest political and policy issue.  The California Legislature passed no fewer than 15 new housing bills in 2017, and then doubled down on that accomplishment by enacting 16 more laws in its just-concluded 2018 session.  Taken together, they represent incremental (if not sweeping) progress in addressing California’s chronic housing shortage.

With California Governor-elect Gavin Newsom about to take office, attention turns to if and how he will deliver on his campaign pledge to create 3.5 million new housing units by 2025.  Legal Planet colleagues Ethan Elkind and Meredith Hankins have recently weighed in on the topic.  Here’s a slightly different take on these same housing issues, courtesy of U.C. Davis academics:

In January of 2018, California State Senator Scott Wiener shocked the political firmament with a bill that would have zoned every tract of land in the state near a bus, rail, or ferry stop for 8-10 story buildings. His bill, SB 827, was soon watered down and then defeated, but not before launching a national debate about housing costs, “NIMBYism,” and the critical importance of increasing residential density near mass transit.

Though SB 827 was uniquely far-reaching, it was not a one-off. Sen. Wiener has introduced a very similar successor bill, SB 50, for the 2019-2020 legislation session, and a state senator in Washington has floated a proposal to establish density minimums around transit stations in the greater Seattle region. Out of the limelight, state housing agencies and to some extent state courts are also pressing local governments to allow denser housing.

The debate thus far about state-mandated upzoning has centered on questions about the proper balance between statewide vs. local interests. An equally if not more important question has received too little attention: what will it take to get local governments—the entities that actually issue building permits—to comply with the state’s policy? SB 827 did nothing to displace local control over permitting, design standards, demolition restrictions, impact fees, affordable-housing requirements, and more. SB 50 is no different. If the bill passes, localities that don’t want tall buildings near a transit station could make them incredibly difficult to build.

The history of state efforts to make local governments allow more housing is a history of mostly minor interventions that were met, swamped, and defeated by local champions of the status quo. A bold, state-led upzoning program is unlikely to achieve very much unless it is paired with an equally bold mechanism to secure local governments’ cooperation.

Two of us have just posted a new white paper proposing such a mechanism. We argue that states should confer on local governments a right to auction the new development rights created by upzoning pursuant to state policy. Local governments that comply with state policy (and whose upzone-plus-auction plan is approved by a state agency) would recoup the development value thereby created. This is akin to a state subsidy for local compliance, but it comes at no cost to the state’s budget, and, critically, the size of the subsidy—that is, the revenue generated for the local government through the auction—would depend on the credibility of the local government’s commitment to allowing development in the upzoned area. Our proposal would also facilitate state monitoring of local land-use regulation, as the price at which development-allowances trade would provide a forward-looking signal about otherwise hidden or obscure local barriers to development.

Though the notion of auctioning the right to develop housing may seem strange, our proposal has a near analogue in existing transferable development rights (TDR) programs. The principal difference is that TDR programs reallocate development value among landowners, whereas our model would reward local governments for upzoning and permit streamlining.

Our proposal also resembles California’s cap-and-trade regime for greenhouse gas emissions. Just as the owner of a power plant who wishes to burn fossil fuels must purchase emissions allowances for the carbon dioxide that would be released, so too would a landowner who wishes build in the expanded zoning envelope have to acquire and redeem “development allowances.” Each development allowance would permit its owner to build, say, 100 square feet of housing in excess of the baseline, up to a maximum defined by the new zoning map. To illustrate, imagine a parcel of 2500 square feet that had been zoned for a floor-to-area ratio of two, i.e., two square feet of housing for every square foot of lot size. Let us stipulate that after upzoning, the maximum floor-to-area ratio is eight. This means that the owner of the parcel, who previously could build no more than 5000 square feet, may now construct as many as 20,000 square feet. But to obtain a permit to build 20,000 square feet, she would have to acquire and redeem 150 development allowances ([20,000 – 5000]/100 = 150).

To protect landowners’ reasonable expectations, the state legislature should carefully define the development baseline—that is, the minimum level of development for which local governments maynotdemand development allowances. A landowner who seeks only to build something similar to what most others have already built should not have to pay for the privilege. Nor should local governments make landowners pay for the density allowed under longstanding zoning classifications. Accordingly, we recommend defining the baseline as the greater of (1) the typical density of parcels that have already been developed for housing within the local government’s territory, and (2) the locally permitted density for the parcel in question as of the date of the state law authorizing the auctions.

We acknowledge that courts and legal commentators have often resisted the idea of putting zoning up for sale. A generation ago, the economists William Fischel and Robert Nelson argued that local governments should have more or less unfettered discretion to sell rezoning for cash. Their proposals went nowhere. Liberals generally regard the sale of zoning as corrupt, and conservatives see it as extortionate. If local governments could profit from selling development rights, wouldn’t they just ban all development everywhere to obtain maximum leverage for negotiating upzones?

Our proposal sidesteps the usual zoning-for-sale objections, because it vests authority to approve the rezoning (plus auction) in a different government than the one which profits from it. Local governments could only sell those development rights created by upzonings that advance the state’s policies, and with the approval of the state’s housing agency. The state policy of promoting dense development near transit would continue to be shaped by environmental, economic, and equity goals, not the prospect of filling state-budget holes with auction revenues (the state wouldn’t pocket the revenues). Moreover, state lawmakers could easily allay concerns about “exploitative downzoning” by setting a development baseline that precludes local governments from requiring landowners to redeem allowances if they merely seek to develop at previously-allowed densities. In a legal challenge, the public-profit aspect of our scheme could be defended not as a way of raising revenue, but as a rational means by which the state fosters local-government compliance with its policies.

This is not to say that the right to auction development rights is an absolutely surefire bet for wrangling local governments into compliance with state housing policies. Our white paper considers various legal and policy objections. But new tools are clearly needed if existing residential neighborhoods are to be rezoned and repurposed for substantially denser housing. The development-rights auction belongs in the mix.

November 19, 2018

How Professor Imwinkelried and I 'reversed' 28 50-year-old convictions last week

By Gabriel J. Chin

Often, the most essential part of lawyering is not brilliant legal analysis, factual investigation, or even winning the case.  Instead, the outcome turns on mundane details such as, say, collecting a judgment, or getting your client out on bail. That lesson was vividly driven home for me last week when I was reading Knight v. State, 161 So.2d 521 (Miss. 1964), a unanimous affirmance by the Mississippi Supreme Court of Freedom Rider Edythe Pauline Knight’s conviction for disturbing the peace after she had been ordered out of the “whites only” section of the Jackson, Mississippi bus terminal.  Based on its clean history on Westlaw, I’ve cited the decision a number of times in my scholarship, in part because of the court’s finding that for many, belief in segregation is “as deep or deeper than religion itself.” But I chanced to browse some other decisions citing the case, and noticed that Justice Douglas in his dissent in City of Greenwood, Mississippi v. Peacock, 384 U.S. 808 (1966), said that Knight had been reversed in Thomas v. Mississippi, 380 U.S. 524 (1965). 

The opinion in Thomas, a per curiam reversal, does not itself mention Knight; the text claims to reverse only Thomas’s case.  But Mabie Law Library reference librarians Peg Durkin and Kristin Brandt obtained the Supreme Court papers in Thomas and, lo and behold, the certiorari petition in Thomas was filed on behalf of Thomas, Knight and 27 other individuals, each convicted in separate cases. 28 cases shown as good law had actually been reversed, but that fact slipped through the cracks of the legal system.

I raised this issue with Professor Ed Inwinkelried, who is technically retired but seems to come to the office every day. As the author of many books and treatises, I suspected he would have contacts with Westlaw. Indeed he did, and when he brought it to the attention of the right editor, Westlaw immediately updated the status of all of the cases. Over fifty years after the fact, Knight and 27 companion cases are now shown as reversed by Thomas, including the conviction of Congress of Racial Equality founder James L. Farmer, who would later receive the Presidential Medal of Freedom.

Of course, these 28 individuals knew their convictions had been reversed in 1965, and now the historical record has been corrected. But there are still consequences. Not just scholars, but also courts and other authorities treated these decisions as valid. As high court decisions, they were influential, and have been cited by other Mississippi courts and administrative authorities, such as attorney general opinions. It would be very difficult to determine the impact of these cases on the development of the law, but is nearly certain that they would not have been cited if it had been clear that they had been reversed.