February 25, 2021

From 'aliens' to 'noncitizens' -- the Biden administration is proposing to change a legal term to recognize the humanity of non-Americans

[Cross-posted from The Conversation]

By Kevin R. Johnson

A profound change has been proposed by the Biden administration for U.S. immigration law. Following up on candidate Joe Biden’s promise of immigration reform legislation, the U.S. Citizenship Act would eliminate the term “alien” from the U.S. immigration laws.

The country’s bedrock immigration law, the Immigration and Nationality Act, would be amended to say that “[t]he term ‘noncitizen’ means any person not a citizen or national of the United States.”

Some might think that terminology is not a big deal. But as a scholar of immigration and civil rights law, I believe that the one-word change could deeply influence Americans’ views about the rights of noncitizens and, by so doing, the future trajectory of immigration law and policy.

In forging immigration law and policy, it is far easier to deny the humanity of an “alien” than to do so for a “noncitizen.” The use of the word “alien” helps rationalize the severe treatment of noncitizens of color, from detention in cagesfamily separation and more.

Signaling attitude

Consider that, in restricting immigration and deportations, generations of U.S. government officials, but especially those of the fervently anti-immigrant Trump administration, frequently used the term “illegal aliens.”

For instance, President Donald Trump tweeted in 2019 that the U.S. Immigration and Customs Enforcement agency “will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States.”

Officials in other presidential administrations, such as President Barack Obama’s, used “undocumented immigrant” to refer to the same people.

Similarly, use of language by Supreme Court justices telegraphs how a case will come out, as well as suggests a justice’s attitude about immigrants and their rights. In writing for the Supreme Court in 2020 upholding deportation of an asylum seeker without a hearing, Justice Samuel Alito wrote in the first line of the opinion that “[e]very year, hundreds of thousands of aliens are apprehended at or near the border attempting to enter this country illegally.”

In contrast, Justice Sonia Sotomayor, in finding in favor of the immigrants, wrote for the majority, “[t]he Court uses the term noncitizen throughout this opinion to refer to any person who is not a citizen or national of the United States.”

Targeting immigrants

The first federal immigration legislation, the Chinese Exclusion Act of 1882, expressly targeted Chinese immigrants for exclusion from the United States from 1882 to 1965. Over time, the terms “alien” and “illegal alien” replaced the references to the Chinese in the immigration laws.

The word “alien” is the core of the Immigration and Nationality Act of 1952, which as amended constitutes the comprehensive U.S. immigration law. The law governs which “aliens” may be admitted to, and deported from, the United States. Immigration law dictates that the “term ‘alien’ means any person not a citizen or national of the United States.”

The term “illegal alien” has been criticized as a racial code for immigrants of color.. Today, “illegal alien” often is employed to refer to Mexicans and Central Americans.

“Next week ICE will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States,” former President Donald Trump said in mid-2019.

Late in the 2020 presidential campaign, Trump aide Stephen Miller tried to discredit Biden’s immigration policies by saying that Arizona, for example, “will be overwhelmed by hundreds of thousands, millions of illegal immigrants because they get apprehended, they get issued a court date and they get released.”

Terminology matters

In a law review article published more than 20 years ago, I criticized the dehumanizing impacts of alien terminology and how it helps to rationalize the harsh treatment of people:

“Citizens have a large bundle of political and civil rights, many of which are guaranteed by the U.S. Constitution; aliens have a much smaller bundle and enjoy far fewer constitutional and statutory protections…. [T]he use of the term alien helps to reinforce and strengthen nativist sentiment toward members of new immigrant groups, which in turn influences U.S. responses to immigration and human rights issues.”

The legal creation of the “alien” helps to justify the fact that our legal system offers noncitizens only limited rights. Constitutional law scholar Alexander Bickel noted that the use of terms that dehumanize people helps justify the denial of rights because it is easier to deny rights to a nonperson.

Consider the public debate. Advocates of immigration enforcement claim that today’s faceless “illegal alien” invaders must be stopped. For example, Ken Cuccinelli, the acting director of U.S. Citizenship and Immigration Services in the Trump administration, was a founder of a group more than a decade ago that described “illegal aliens” as “foreign invaders” responsible for “serious infectious diseases, drug running, gang violence, human trafficking, terrorism.”

The Federation for American Immigration Reform, an advocacy group that works to limit immigration, recently issued a press release announcing that “Illegal Alien Population Soars to a Record 14.5 Million Amidst COVID-19 Pandemic.”

Glenn Spencer, the president and founder of American Border Patrol, an advocacy group that tracks migrants crossing the U.S.-Mexico border, has said that “[e]very illegal alien in our nation must be deported immediately. …”

Although a seemingly minor and technical change, the elimination of “alien” from the U.S. immigration laws might transform the entire discussion of immigrants.

Terminology matters. Humans, not faceless invaders, are affected by the immigration laws. “Noncitizen” is more neutral than “alien.” On this score, the U.S. Citizenship Act would take a small but important step toward treating immigrants with humanity.

February 12, 2021

The Biden administration and immigration reform

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

After four years of the Trump administration’s hyper-aggressive immigration measures, Joe Biden ran for president promising dramatic change to U.S. immigration law and enforcement. He quickly moved to change the direction of the nation’s immigration policies.  Whether Biden ultimately succeeds will have big impacts on California, which has the largest population of immigrants of any state in the Union.

In his first days in office, Biden presented an immigration reform proposal with a path to legalization for undocumented immigrants, as well as relief for recipients of the Deferred Action for Childhood Arrival (DACA) policy, placed a moratorium on removals, eliminated the Muslim ban, and more. By so doing, Biden has made it crystal clear that immigration is a top priority of his administration.

California, with 11 million immigrants (25 percent of the nation’s foreign-born persons) and need for labor in the agricultural industry – who are no less than essential workers during the coronavirus pandemic – stands to richly benefit from immigration reform. Growers have consistently complained about the inability to find a reliable supply of labor. A path to legalization, as well as possible guest-worker programs, could well provide that labor.  A durable labor force made possible by immigration reform would benefit the state’s economy as well as ensuring that fruit, vegetables and dairy products are available throughout the pandemic.

But as with many complex issues, the most important and durable changes to the immigration laws will be the most difficult to secure. Presidential actions will only get the nation so far. What is needed is a meaningful and far-reaching reform of the immigration laws, not tinkering at the margins in ways that will not remedy the serious problems in the nation’s immigration system.

Although the near-universal assessment is that the current immigration system is “broken,” Congress for decades has failed to pass immigration reform. Biden will need to rely on his decades of experience as a senator to persuade Congress to pass reform. Whether through a single or many bills, only Congress can accomplish comprehensive immigration reform. Only Congress can create a path to legalization for undocumented immigrants that more closely aligns with the labor needs of the nation. 

By making reform a priority out of the gate, Biden is not repeating the mistake of President Barack Obama, who put off immigration reform until his second term. Instead, during his first term the Obama administration escalated removal efforts so that record numbers of noncitizens – roughly 400,000 – were removed each year, earning the moniker “Deporter-in-Chief” among immigrant-rights advocates. 

To secure immigration reform, a bipartisan approach will be necessary. The truth is that Republicans stand to benefit from immigration reform. That is why, in the past, Republican Senators Marco Rubio and Lindsey Graham have supported immigration reform.  Politically, President Trump’s heartless approach to immigration enforcement has chased Latinos away in droves. Republican candidates in swing states like Arizona, Florida, and Texas cannot write off the Latino vote. Moreover, there are economic gains to be secured through immigration reform, with employers in agriculture, construction and service industries clamoring for immigrant workers.

The deal-breaker may be the creation of a path to legalization for undocumented immigrants. Decried as an “amnesty” by opponents, immigrant rights activists insist on a path to legalization. Realistically, we cannot deport 11 million undocumented immigrants. As President George W. Bush observed, such a massive removal campaign would cost billions of dollars, destroy communities, and devastate the economy. A pathway to legalization undoubtedly will require considerable discussion and debate.

Put simply, Biden set the table for immigration reform on day one of his presidency. Still, an incredible amount of work must be done. As Californians, we will be directly affected by immigration reform and should not stand on the sidelines.

February 11, 2021

Who decides whether California misjudged the Bay Area's housing needs? (And why it matters)

[Cross-posted from the California Planning & Development Report]

By Christopher Elmendorf

Housing advocates YIMBY Law and YIMBY Action sued the state of California last week, arguing the Department of Housing and Community Development misjudged the housing need of the San Francisco Bay Area. The suit raises important questions at the intersection of transportation, climate, and housing policy.

The activists’ complaint has merit. But, the Legislature, not the courts, should resolve it.

Here’s what’s at stake. Every eight years, each city in California must adopt a housing element to accommodate their share of regional housing need, including the need for multifamily housing. Regional housing need determinations (RHNDs) are the state’s principal lever for making cities zone for dense, relatively affordable housing.

Senate Bill 828, enacted in 2018, substantially revised and improved the process by which HCD determines regional need. Previously, the state had relied almost exclusively on forecasted household growth. The obvious problem with this approach is that household-growth trends are the byproduct of land-use policy. Restrictive zoning impedes population growth. And as housing prices rise, young adults shack up with roommates or move back with their parents rather than forming new households. Using the forecasted number of households to judge the adequacy of a region’s land-use plans gets things exactly backwards.

SB 828 tells HCD to top off the baseline, household-forecast RHND with adjustments for cost-burdened and overcrowded households. These adjustments, along with an updated adjustment for vacancy rates, are supposed to better align the supply of housing in California with “healthy housing markets” in other regions of the nation.

Taking its new charge to heart, HCD delivered housing targets for the Bay Area and Southern California that are 2-3 times larger than what these regions had to plan for in previous cycles, from 187,990 units to 441,175 units in the Bay Area and from less than a half-million to over 1.3 million in Southern California.

So why are housing activists suing instead of celebrating? Because HCD appears to have overlooked an older adjustment factor, one which the Legislature added with a landmark climate change bill back in 2008: jobs-housing imbalance.

Escalating home prices have displaced much of the Bay Area’s working class to the Central Valley. As a result, the Bay Area now has the dubious distinction of being a national leader in “supercommuters”—people for whom a one-way trip from home to workplace takes more than 90 minutes. Although there is no settled methodology for adjusting a region’s housing target on account of such imbalances, I and colleagues have explored a couple of different approaches, which suggest that making the jobs-housing adjustment would probably increase the Bay Area’s RHND by roughly 25%.

YIMBY Law’s legal argument looks iron-tight at first glance. The statute says that HCD “shall make determinations in writing” on each of the adjustment factors, Gov’t Code 65584.01(b)(2). As best I can tell, no jobs-housing determination was ever made. An agency’s failure to make an assessment the law requires is normally reversible error.

But this is not a normal case.

There is a strong argument from the structure of the statute that the courts have no jurisdiction to review HCD’s regional need determinations. The RHND is the linchpin of a very complicated, multi-stage process that unfolds on a tight timeline prescribed by statute. The timeline does not accommodate a protracted legal battle – especially when, not incidentally, millions of Californians are under-housed.

Consider what must get done. “At least 26 months” before the housing elements of cities in a region come due, HCD “shall meet and consult” with the region’s council of governments “regarding the assumptions and methodology to be used to determine the region's housing needs.” After reviewing the council’s data and arguments, “the department shall make determinations in writing” regarding methodology. Next, HCD applies the methodology and cranks out the RHND, which shall achieve “a feasible balance between jobs and housing . . . .”

The council of governments then has 30 days to raise objections, and HCD is given 45 days to resolve objections. The statute says nothing about appeals by any other person or entity, or appeals to any authority other than HCD.

One way or another, the RHND must be finalized quickly, because “at least 18 months prior” to the due date for housing elements, the region’s council of governments must distribute a “draft allocation” of the RHND to cities and counties. (The localities’ shares of the RHND are called their “RHNAs.”) A rapid-fire sequence then unfolds: cities may appeal the draft allocation to the council of governments, the council holds public hearings on appeals, the council adopts a final allocation following additional hearings, and HCD reviews the final allocation for consistency with the RHND, revising it if necessary. Each step has tight timeframe for completion, usually 45 or 60 days.(Meanwhile, many cities in Southern California have appealed to the Southern California Association of Governments and are threatening to sue the state, because of allocations they consider too high.)

The timeframes must be tight because cities need to know their RHNA well in advance of the date their housing element comes due. Cities that lack sufficient capacity under current zoning to accommodate their RHNA must include a site-specific rezoning plan in their housing element. Using an HCD-issued spreadsheet, they must identify which parcels will be rezoned and the densities that will be allowed following rezoning.

The Housing Accountability Act requires cities to approve projects on such sites if the project’s density is “consistent with the density specified in the housing element,” even if the project is “inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation.”

Because a city’s housing element controls its development in this and other ways, a city may not adopt a housing element without completing environmental reviews required by the California Environmental Quality Act. This takes time. Yet if it takes too much time—such that the city fails to adopt a housing element on schedule—the city is likely to be found out of compliance. And a city without a compliant housing element apparently forfeits its authority to use its zoning code or general plan as the basis for denying any project with at least 20% low-income or 100% moderate-income units. Hence the need for speed.

The Legislature recognized the need for speed when it exempted regional housing need determinations and allocations from CEQA.

If every city or interest group dissatisfied with an RHND or RHNA could litigate the question in court, it’s doubtful that any city in the housing-constrained and disputatious regions of our state would be able to adopt a housing element on time. HCD and the courts would then face enormous pressure to ad lib waivers of the statutory deadlines—waivers which the statute does not authorize.

A decade ago, the Court of Appeal wrestled with these issues in a case brought by the City of Irvine. Irvine challenged not the RHND, but the very large share of the target that had been allocated to the city. The Court of Appeal concluded that Legislature must have intended to preclude judicial review of RHNAs, because the “the length and intricacy of the process created to determine a municipality's RHNA allocation” did not leave space for plodding, deliberative judicial proceedings.

The same goes for challenges to the regional determination of need (RHND). However, it’s not clear that City of Irvine will control YIMBY Law’s case. Generally speaking, judicial review is available by default in California unless the Legislature has “clearly” withdrawn it, and the housing statutes are silent on judicial review of the RHND. Moreover, the decision in City of Irvine seems to rest in part on the court’s belief that large RHNAs have no material consequences for cities, owing to provision of state law that allows cities to set less ambitious “quantified objectives.” That line of thinking, shaky at the time, has been totally undermined by developments in the years since. To give just one example, Senate Bill 35 (2017) tied a city’s obligation to permit certain projects ministerially to the city’s progress toward its RHNA, not some lesser quantified objective.

So what’s to be done? YIMBY Law’s suit necessitates a one-time legislative fix. While the jobs-housing adjustment is pretty inconsequential for most California regions (because the region encompasses the “commute sheds” of its major cities), this factor cannot be ignored for the Bay Area. Making the adjustment would also bring the Bay Area’s RHND close to parity with Southern California’s. (Whereas Southern California’s RHND for the upcoming cycle is more than three times larger than its last one, the Bay Area’s new target is only about 2.3 times as large, notwithstanding the Bay Area’s higher housing prices and rents.)

It would be simple enough for the Legislature to pass a bill raising the Bay Area’s RHND by 25% (the midpoint of my estimates of the jobs-housing adjustment), while ratifying HCD’s determination in all other respects. If it wished, the Legislature could also extend Bay Area cities’ deadline for submitting housing elements by a few months, though this seems unnecessary. And, to avoid any confusion, the legislature could provide that the 25% jobs-housing increment shall be distributed pro-rata to all cities and income categories. This is an easy rule to apply, and it respects the intraregional allocation chosen by the council of governments. Each Bay Area city’s target for each type of housing (very-low income, low-income, moderate-income, and above-moderate income) would increase by exactly the same percentage.

It is odd to think of the Legislature as a pseudo-appellate body sitting in judgment of a state agency or department. But given the process California has chosen for determining and allocating regional housing need, this is as it must be, at least for now.

A few years hence, we’ll be able to look back and see how the RHND -> RHNA -> housing element process played out during this cycle, and debate procedural and substantive reforms for the next cycle. Perhaps some will argue that expedited judicial review in a designated court should be part of the process. In the meantime, responsibility for supervising HCD’s determinations of housing need belongs to the Legislature, not the courts. 

For a fully footnoted version of this piece, please click here.

February 5, 2021

Lessons from India's struggle with corporate purpose

By Afra Afsharipour

[Cross-posted from the CLS Blue Sky Blog]

The escalating debate over corporate purpose is not confined to developed economies in the West. Rapidly developing economies in nations like India are similarly grappling with how to define and develop a legal framework around corporate purpose. Corporate social responsibility (CSR) and a re-examination of corporate purpose have been at the centerpiece of discussions about corporate governance reforms in India. In a new book chapter, I discuss the lessons that can be learned from India’s experience with corporate purpose.

For over a decade, India has taken a multi-pronged approach toward redefining corporate purpose. Voluntary guidelines issued by the Indian Ministry of Corporate Affairs (MCA) have approached stakeholderism, CSR, and sustainability as part of corporate strategic planning and a company’s business policies under the oversight of the board of directors. In 2013, India enacted the new Companies Act. The act altered the fiduciary responsibilities of boards of directors, with Section 166 providing that directors must “act in good faith in order to promote the objects of the company for the benefit of its members as a whole, and in the best interests of the company, its employees, the shareholders, the community and for the protection of environment.” The act also imposed mandatory CSR responsibilities on corporate boards with a comply or explain approach toward CSR spending. More recently, there have even been efforts to make this approach mandatory. And in 2019, the MCA issued yet another set of National Guidelines for Responsible Business Conduct to encourage Indian businesses to reflect on their purposes and to contribute towards wider development goals while seeking to maximize their profits. In addition to the MCA, the Securities and Exchange Board of India (SEBI), the nation’s securities regulator, has also required substantial additional sustainability disclosures by the largest listed companies.

The success of India’s multi-pronged initiatives has been mixed. The CSR provisions of the Companies Act have led to a large increase in philanthropy. However, philanthropic spending is unevenly distributed. Moreover, the promise and future of the CSR requirement of the Companies Act is uncertain, particularly considering the economic impact of the COVID-19 pandemic. Similarly, the stakeholder provisions of the Companies Act suffer from lofty rhetoric unmatched by either practice or legal remedies for stakeholders. SEBI’s disclosure rules have significantly increased transparency for the largest Indian companies. With greater disclosures, stakeholders are positioned to engage with companies more effectively and meaningfully about their social responsibilities beyond profits. Nevertheless, mandatory CSR, a stakeholder-oriented approach to corporate law, and additional sustainability disclosures have made little dent in India’s massive inequality, poverty, corruption, or pollution.

It is not surprising that India has struggled so intensely with a stakeholder-oriented approach to corporate purpose. The ownership structure of Indian firms plays a significant role in challenging the stakeholder-driven corporate purpose efforts in India. Controlling shareholders (referred to as promoters in the Indian context) are the most powerful players in corporate India. For many promoter families, shareholder wealth maximization aligns directly with their own interests. In addition, the philanthropy approach of India’s CSR provisions provides promoters with a philanthropic glow that aligns with the promoter’s self-interest.

Concentrated ownership can also create opportunities for stakeholderism to transform into mutually beneficial relationships between the government and powerful promoters. In the Indian context, the government has used private firms to promote its policy objectives of development and growth. But private firms have also been used as an instrument of rent extraction for political purposes. For example, companies are increasingly contributing CSR funds into the Prime Minister’s Relief Fund, but there is little transparency in how such funds are spent. Furthermore, there are concerns that contributions to government-controlled funds undermine the work of non-governmental organizations.

Many experts argue that promoter power has expanded significantly post-economic liberalization with greater links between political and business elites. Powerful promoters are often the biggest funders of political campaigns. Business elites are deeply involved in political decisions and policy making, serving on a variety of parliamentary committees that recommend important policy decisions for the government. Furthermore, a number of prominent industrialists have entered politics, primarily through serving in the upper house of Parliament (Rajya Sabha). In controlled companies, companies’ CSR policies may inevitably reflect the interests of promoters, including their political interests and aspirations, as well as their views on social reality and values.

The Indian experience presents an important perspective to the corporate purpose debate from a country where firms are dominated by controlling stockholders. In a country where politics and business are deeply intertwined, and where powerful controlling stockholders have an outsized role, stakeholderism may make little headway. Instead, the Indian approach to stakeholderism provides an environment where corporations can use their CSR efforts and corporate purpose rhetoric to curry political favor with the state, while the state can use stakeholderism to politically signal that it values society, even in the face of rising inequality, pollution, and persistent poverty.

February 1, 2021

Episode 49: 'Incitement'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

On Jan. 13, former President Donald Trump became the first person ever to be impeached twice by the House of Representatives. But with Trump out of office, it’s unclear if there will be enough votes to reach the two-thirds majority needed to convict him in the Senate. With the trial looming, we look at whether Trump has a good argument against the charge he incited a riot at the U.S. Capitol, and whether it’s constitutional to impeach a person who has left office. 

Listen to the episode