August 29, 2020

Episode 44: 'The Hatch Act and the Election'

Episode 44: “The Hatch Act and the Election”

[Cross-posted from]

By Elizabeth Joh

Episode 44 of the “What Trump Can Teach Us About Con Law” podcast explores the legality of President Trump using the White House as a backdrop for the Republican National Convention under the Hatch Act, explains the Electoral College, and tackles the president’s recent comments casting doubt on mail-in voting. Listen to the episode

August 24, 2020

Democrats must invest in the future of the party -- Latinos

[Cross-posted from The Boston Globe]

By Luis R. Fraga, Luz E. Herrera, and Leticia Saucedo

Last week, America watched a new type of Democratic National Convention. It was more representative of our country and we were glad to see Latino entertainers, workers, immigrants, mothers, daughters, and elected officials representing constituencies at different levels of government.

Who was not highlighted in a prime time speaking role was former presidential candidate and secretary of Housing and Urban Development in the Obama administration, Julián Castro. Representative Alexandra Ocasio-Cortez of New York was included only at the invitation of former presidential candidate and Senator Bernie Sanders. While she maximized her 90 seconds, party protocol ate up her speech time. Why did the DNC miss this opportunity to showcase the promise of a progressive Latino voice for the future of the Democratic Party?

Castro was the first presidential candidate to advance a police reform plan that called for a national use of force standard, sentencing reform, the end of qualified immunity, cash bail reform, and investment in public defenders, and diversion programs. He called for the federal government to seek accountability for excessive use of force months before George Floyd’s tragic death forced people across the political spectrum to publicly affirm that Black Lives Matter.

As the former mayor of San Antonio, Texas, the 7th largest city in the country, Castro made important contributions to improving the lives of Americans. He did not just present lofty ideas, he established policies to directly address them. Castro ran a bold presidential campaign that highlighted the plight of immigrant children detained and caged by the Trump administration on the US border. He advocated the repeal Section 1325 of the immigration code that makes it a crime for immigrants to enter the United States without legal status. He set the agenda on immigration which many other Democratic presidential candidates subsequently adopted.

As the only Latino candidate for president, Castro deserved more than an offer of a cameo in a pre-recorded panel, he deserved a keynote speech like other former presidential candidates. This is the source of concern; role models matter and are crucial in creating a pipeline of future leaders.

Just as the convention provided a platform to bring moderate Republicans into the Democratic Party tent, it was also an opportunity to appeal to the progressive elements — including Latino progressives — who make the Democrats attractive to so many. As party officials court the Republican base and more conservative sectors of the Democratic Party, they must also pay tribute and respect to all parts of the base if the party is to remain relevant, and thrive.

This year, 32 million Latinos will be eligible to vote in November 2020 — that is the largest non-white voting bloc and that is projected to grow as the overall Latino population becomes 28 percent of the US population by 2060. Some 800,000 Latinos turn 18 every yearNinety-three percent of these are US citizens by birth. It’s time to include Latinos at all levels of the political conversation, not only as political surrogates or as tools for a diversity photo-op, but as full members of the Democratic Party.

Latinos have not been elected to the highest office in America — yet. Giving Castro a primetime role at the DNC would have been an investment in the future of the Democratic Party, an acknowledgement that it regards Latinos as part of the movement. Not giving him or Ocasio-Cortez prominent roles is disheartening; accomplished Latinos must be included in a significant way.

The DNC has always counted on the Latino constituency to go along. A large percentage of Latinos will probably vote for the Democratic ticket this fall because the status quo is unacceptable. However, voting for the Democratic ticket in 2020 doesn’t mean Latinos will forget this slight.

Luis R. Fraga is a professor and director of the Institute for Latino Studies at the University of Notre Dame. Luz E. Herrera is a professor and associate dean of Experiential Education at the Texas A&M University School of Law.

August 3, 2020

Episode 43: "The Trump SCOTUS term"


[Cross-posted from]

By Elizabeth Joh

Episode 43 of the “What Trump Can Teach Us About Con Law” podcast reviews some of the big cases of the past Supreme Court term and considers the constitutionality of the federal policing of the Portland protests. Listen to the podcast


August 3, 2020

How to control the spread of coronavirus over state and county lines

[Cross-posted from CalMatters]

By Katherine Florey

Many Americans took advantage of May’s long Memorial Day weekend by venturing out of town for the first time in weeks, to gather with family or visit resorts. A few weeks later, COVID-19 cases began a vertiginous rise.

With attractions from Disney World to California wineries reopening, the summer vacation season seems to have fueled another surge.

From the start, travel within the United States has powered COVID-19’s ever-increasing reach – in contrast to many European countries, which contained the disease in part by restricting travel while planning carefully for its safe resumption. Vacation spots from Sun Valley, Idaho, to Myrtle Beach, S.C., have become COVID-19 hotbeds. Tourism has caused cases to soar in the South Lake Tahoe region, where – as is often the case with rustic travel destinations – hospital and ICU capacities are worrisomely limited.

As well as fueling the virus’s spread, travel makes containment more difficult. When exposure is local, contact tracers can follow up. After two hairstylists tested positive for COVID-19 in Missouri, the county health department was able to quarantine all 140 exposed clients for two weeks. Such careful tracing isn’t possible when visitors hail from far-flung locations. While more traffic in Las Vegas’s newly reopened casinos comes from California than Nevada, Nevada doesn’t track infections in out-of-state visitors.

Despite the issue’s importance, our current state and county patchwork of reopenings too often ignores existing patterns of travel. Worse, it creates new ones. People in still-closed communities who might otherwise have patronized local businesses have driven long distances to get a haircut or meet friends in a dine-in restaurant.

It doesn’t have to be this way. States have substantial constitutional latitude to restrict travel and other activities when necessary to control contagious disease, as the Supreme Court famously held in Jacobson v. Massachusetts. Although some authorities had cast doubt on Jacobson’s continuing viability, U.S. Supreme Court Chief Justice Roberts relied on it in rejecting a challenge to California’s pandemic-driven limits on religious services.

Historically, states have used quarantines to contain viruses geographically – and, amid COVID-19’s resurgence, many are rushing to impose them. But quarantines have limitations. They can degenerate into tit-for-tat animosity. As New York and Florida have traded places as COVID-19 hotspots, their governors have seemed all too eager to quarantine each other’s residents, sparking legal challenges

Maybe most damningly, quarantines often do not work. Enforcement is difficult; changing conditions can soon render them irrelevant. Some courts have signaled that, Jacobson ruling notwithstanding, their tolerance for long-lasting quarantines may not be unlimited. Usually, less blunderbuss measures are preferable.

First, reopening plans should acknowledge that activities that encourage travel increase risk. A destination restaurant is more likely to bring COVID-19 to a low-prevalence community than a diner filled with locals. Establishments that cater to out-of-towners should be priorities for enforcement of mask, distancing and capacity rules – both to make them safer and to discourage visitors looking for mask-free havens. Businesses should gather contact information from tourists where they can, and communities should plan for tracking infections that spread across county and state lines. 

Second, reopening plans and renewed closures alike should be regionally coordinated based on both existing travel patterns and new ones they may generate – a consideration too often lacking in plans like California’s, which evaluates counties mostly in isolation. A county with little COVID-19 nonetheless must exercise caution if community transmission is still rampant in neighboring areas. Conversely, reopening lower-risk businesses might make sense if keeping them closed will just drive residents to seek out services elsewhere.

Many countries successfully battling the virus have adopted comprehensive measures to limit travel. Some of these, such as the designation of “green zones” in some European countries, require more trust, compliance and centralized planning than is likely possible in the United States. Nonetheless, the United States should borrow the habit of thinking about COVID-19 in terms of its true geography, not political boundaries. After all, that’s how the virus operates too.

August 3, 2020

Rural California suffers a painful shortage of lawyers

[Cross-posted from the Daily Journal]

By Lisa Pruitt and Kelly Beskin ‘21

Rural America lags behind the rest of the nation in access to health care, broadband, quality of education and nearly every other measure of well-being. On July 28, the American Bar Association hosted an online program featuring leaders and scholars of the legal profession discussing ways to address another rural deficit: the painful shortage of lawyers.

Although about a fifth of the nation's population lives in rural areas, these places are home to only 2% of small law practices. These so-called legal deserts are significant barriers to justice for their residents.

This access to justice crisis is also playing out in rural California. While the statewide ratio of attorneys to residents is 1:626, just over 3% of lawyers have addresses in "rural" and "frontier" areas as those terms are defined by California's Office of Statewide Health Planning and Development. The ratio of lawyers to residents thus varies dramatically from region to region, county to county, and from city to town to unincorporated area.

Read more …