February 24, 2022

'What Roman Mars Can Learn About Con Law,' Episode 60: 'The Administrative State

'What Roman Mars Can Learn About Con Law,' episode 60: 'The Administrative State'

[Cross posted from]

By Elizabeth Joh

What two rulings about COVID vaccine mandates tell us about the future of the administrative state under this configuration of the Supreme Court. Plus, updates on Texas abortion rights, executive privilege in the Jan. 6 investigations, and Breyer! Listen to the episode.
February 15, 2022

The Next Normal: States Will Recognize Multiparent Families

[Cross-posted from Washington Post]

By Courtney G. Joslin and Douglas NeJaime

It soon could be unremarkable for a child to have three or more legal parents. After months of political wrangling over how to support families, this may sound fantastical, but it’s fast becoming reality: Six states — California, Delaware, Maine, Vermont, Washington and most recently Connecticut — have enacted laws over the past decade expressly allowing a court to recognize more than two parents for a child. Many others, including Massachusetts, are considering similar proposals.

These new laws have been spurred, in part, by the rising numbers and public profile of LGBTQ families and others with children conceived through assisted reproduction. In many of these families, one or more parents are not genetically related to their children, and many states now legally recognize these “intended parents.” When we realize that genetic connection isn’t required for a legal parent-child relationship, and that social criteria are relevant, limiting the number of parents to two no longer seems necessary or logical.

These multiparent laws enable courts to protect parent-child relationships as they exist in the world. This is important. Legal recognition is more than a bureaucratic formality: When parent-child bonds lack legal protection, children suffer. They may be denied crucial benefits — unable to access health insurance through their parent or receive government aid. Worse yet, when a child’s relationship to a parent is not recognized under law, that relationship can be permanently severed — for instance, if there is a custody dispute or if the legal parent dies. If the child enters the child welfare system, they may be removed from a legal parent and placed in foster care, rather than placed with another person whom the child considers a parent.

Such separation can have devastating and long-term developmental consequences. As the American Academy of Pediatrics explained more than two decades ago, children’s “need for continuity with their primary attachment figures” is “paramount.” Peer-reviewed research across different contexts, including same-sex-parent families and foster families, suggests that ending a child’s relationship with a parent is traumatic, even when there is no biological or adoptive tie. Studies show that the loss of a parent can put a child at higher risk for addiction and psychiatric disorders and disrupt healthy development.

Some commentators have expressed fear that recognizing multiparent families will exacerbate instability and conflict in children’s lives, because they will be torn between multiple authority figures and multiple households. Elizabeth Marquardt worried about “the enormous risks” of such a change, asking in a 2007 op-ed for the New York Times, “If we allow three legal parents, why not five?” A family court magistrate in Ohio claimed last year that “children will be caught in three or four worlds.” Such concerns assume that multiparent recognition is relevant only to a relatively small and relatively new subset of families — LGBTQ families, families created through three-person IVF or polyamorous families, to name a few — and that the risks of legitimizing or normalizing multiparent families are largely unknown and unknowable.

But multiparenthood is hardly new. We are working on the first nationwide empirical study of case law from 1980 to the present on “functional parent doctrines” — laws that allow courts to treat a person as a parent, even if that person is not the child’s biological or adoptive parent. Our preliminary findings show that multiparent families have long existed and that they take a wide variety of forms. Examples include children who develop parent-child relationships with one or more stepparents, as well as children who have living biological parents but are raised primarily or exclusively by other relatives or friends. Long before statutes expressly permitted it, courts extended parental rights to people besides a child’s biological parents. Such decisions reflected the understanding that these relationships can be vital to children and that protecting them is often critical to children’s well-being.

To give just one example, these doctrines allowed the West Virginia Supreme Court, in 1990, to continue a child’s placement with his grandmother, with whom he had lived for much of his life, even though he had two parents. In another case, the same court ensured that a child could be cared for by both his legal parent and the aunt and uncle he viewed as parents. “It is a traumatic experience for children to undergo sudden and dramatic changes in their permanent custodians,” the court explained, and the couple was “too important” for the child “to be deprived of a continued relationship with them.” To avert this type of trauma, courts often issue orders that “foster the emotional adjustment of the children” and seek to “maintain as much stability as possible in their lives.” Multiparent recognition has made children’s lives steadier and more secure, not less.

The next normal, then, may not be a sweeping legal or societal change, but something simpler: more jurisdictions recognizing and protecting the families that exist today, right now.

February 15, 2022

Congress, Not Biden, Should Be Held Accountable For Immigration Reform

[Cross-posted from The Hill]

By Kevin R. Johnson

As the Biden administration completed its first year, a flurry of news reports highlighted the bipartisan disappointment with its record on immigration. While liberals objected to the continuation of some of former President Trump’s policies, such as closing the U.S. borders, conservatives alleged that President Biden has embraced “open borders.”   

The criticisms directed at Biden are not entirely fair. Consider the immigration situation that he inherited in January 2021. Trump had dedicated four years to restrictive immigration measures like no president in modern U.S. history. To that end, policy after policy was put into place. Reversing course in a massive federal bureaucracy is not something that can be done overnight — or even in a year.   

Additionally, four years of tough measures and verbal attacks on immigrants did not solve the nation’s immigration problems, but arguably, made them worse. The Trump administration’s efforts ensured that the longstanding and serious immigration problems remained for the new administration: Approximately 11 million undocumented migrants lived in the country before — and after — the Trump presidency.

With the election of Biden, hope sprang eternal among immigrants’ rights activists. The truth of the matter is the Biden administration has dismantled some harsh Trump immigration policies. Gone are the Muslim ban and immigration raids on 7-Eleven convenience stores and state courthouses. Vitriol about immigrants no longer comes from the White House and the Biden administration has brought rationality to the discussion of federal immigration policy. In that vein, Vice President Kamala Harris has started a discussion of long-term solutions to stem migration flows from Central America.   

The administration has also faced resistance in its efforts to change the direction on immigration. For example, the courts have rejected attempts to reopen to new applicants the Deferred Action for Childhood Arrivals (DACA) policy, which provides relief to undocumented young people, or to dismantle the “Remain in Mexico” policy requiring asylum seekers to wait in Mexico while their claims are being decided. Republicans have adamantly fought against any effort by the Biden administration to moderate the harsh measures embraced by Trump. 

That said, if one is truly interested in immigration change, the appropriate measuring stick is not what Biden did in year one but what Congress has failed to do for decades — pass meaningful immigration reform. Democrats and Republicans repeatedly claim that the current immigration system is “broken” but have done absolutely nothing to fix it. Presidents Bush, Obama and Biden have been unable to move Congress to pass reform legislation. Early in Biden’s term, the U.S. Citizenship Act was introduced in Congress. The bill, backed by the president, has languished in Congress.  

Reform is long overdue. The comprehensive U.S. immigration law, the Immigration and Nationality Act of 1952, was forged at the height of the Cold War and designed to exclude and deport communists. Although amended on many occasions, it focuses more on keeping people out than letting people in. Economic and humanitarian concerns, not fears of the spread of communism, must be the touchstone for the immigration laws of the 21st century.  

Immigration solutions need long-term blueprints most appropriately written by Congress, not quick fixes by a president. For example, economic development and building political institutions in Central America that diminish migration pressure take time and congressional appropriations. Effective efforts cannot realistically be achieved in one year by a new president.  

The bottom line is that the nation’s immigration issues can only be effectively addressed if Congress engages in the serious and difficult task of formulating long-term solutions and approaches that outlast any president. In a time of political discontent, that is no small feat.   

But, there are much-needed reforms that Congress could make to the U.S. immigration system. To start, Congress could provide a path to durable legal immigration status for DACA and Temporary Protected Status (TPS) recipients, as well as for other undocumented immigrants.  

Lawmakers can work to restructure the immigration court system, which is poorly funded, inadequately staffed, lacks independence, and has a backlog of more than 1.5 million cases. The visa system needs reforms to eliminate visa backlogs and to allow for sufficient admission of immigrants to satisfy U.S. labor and family reunification needs.   

Congress needs to create a system that is fair to immigrants and allows for effective enforcement, not a misguided border wall on the U.S./Mexico border, which will cause more deaths but not halt migration.  

And finally, the dehumanizing term "alien," which has helped to obscure and rationalize the treatment of people inconsistent with our constitutional values, needs to be removed from U.S. immigration laws.   

Congress will, at some point, meaningfully address immigration reform. The sooner it does, the sooner the nation will begin the process of moving forward. One president can only be reasonably expected to do so much.