July 27, 2020

We should applaud the changes to the California bar

By Kevin R. Johnson

[Cross-posted from Daily Journal]

The global pandemic has changed all our lives. And it made the July 2020 administration of the California bar exam – in large venues filled to capacity across the state – a public health impossibility.

After several months of emergency deliberations, uncertainty for recent law graduates, and advocacy by bar applicants, law deans and others, the California Supreme Court announced a reasonable, responsible and creative testing alternative. Read more …

 

July 10, 2020

Down with Confederate monuments, 'up with the stars'

[Cross-posted from The Hill]

By Alan E. Brownstein

During the national debate about American symbols and monuments, Donald Trump makes two claims: He argues it is an affront to our heritage to take down Confederate monuments and rename military bases honoring Confederate generals, and he also demands that everyone — including athletes and others protesting racial injustice in our society — must act in ways that are properly respectful of our flag.

The first argument makes little sense. The second is starkly inconsistent with the first.

Monuments memorialize individuals and events that deserve to be honored. They do more than describe the past. They assign value to it. To put it simply, all individuals who played a role in American history, every event of any magnitude, is part of American history. But it is absurd to suggest that all such aspects of our heritage deserve to be honored with monuments.

During the American Revolution, 15 percent to 20 percent of the colonists were loyalists who maintained their allegiance to the British Crown. They supported British forces. Thousands took up arms against the patriots fighting for our independence. These loyalists are part of our heritage. Should we memorialize and erect monuments to them?

During the early 1900s, millions of Americans were members of the Ku Klux Klan. They are part of our heritage too. Should we erect monuments to Klan leaders as well?

Playing a part in American history, standing alone, doesn’t justify erecting monuments to people or naming military bases after them. To deserve this kind of recognition, historical figures have to have done and stood for things worthy of our admiration over time. What did the leaders and generals fighting for the Confederacy do? What did they stand for?

First, they fought to dehumanize and enslave an entire race of people. That cause deserves our contempt. It should receive no badge of honor.

Second, they took up arms against our flag. If Donald Trump demands respect for and allegiance to the American flag, why in the world does he insist on protecting monuments to, and honors for, those who disgraced it?

Trump’s apparent commitment to the flag is so great that he wants flag burning criminalized. The Supreme Court held in Texas v. Johnson in 1986 that it violates the First Amendment to punish protestors who burn the American flag as symbolic speech. This was a 5-4 decision emotionally argued by the justices on both sides.

Then-Chief Justice William Rehnquist wrote a particularly passionate dissent. In it, he quoted in its entirety a poem titled “Barbara Frietchie” by John Greenleaf Whittier. Supreme Court justices do not typically recite poetry, much less entire poems, in their opinions. But Texas v. Johnson was a special case because the flag is a special symbol. The poem recounts an allegedly true story of how during the Civil War a Confederate army invaded the northern town of Frederick, Md. Seeing the American flag flying from the attic of Barbara Frietchie’s home, the rebel troops stopped and fired on it, and “rent the banner with seam and gash.” The elderly woman, Barbara Frietchie, took up the flag before it could fall and dared the soldiers below to shoot her, but to spare the flag.

Most law school case books do not include this poem when they publish the highly edited text of Texas v. Johnson. But for the many years I taught the First Amendment as a constitutional law professor, I always read the entire poem to my classes. I wanted my students to know not only the doctrine, but also the passion stirred by this case, and by the American flag.

I doubt Donald Trump has read either the Texas v. Johnson case or Whittier’s poem. If he did, he might think for a moment about who it was that fired on the American flag and “rent the banner with seam and gash.” It wasn’t Black athletes kneeling during the national anthem, calling for our country to live up to the ideals represented by our flag. It was the Confederates whom Trump wants to honor with monuments and the naming of military bases.

And this is the key point: If you demand respect for the flag, you cannot at the same time honor the Confederate leaders and generals who turned traitor against it. The flag was on only one side in the Civil War. It flew in the ranks of the Union troops under assault by Confederate rebels.

Loyal Americans rallied to the colors. In a popular song of the time, they marched to war singing:

Yes, We’ll rally round the flag, boys, rally once again,
Shouting the battle cry of freedom.
We will rally from the hillside, gather from the plain.
Shouting the battle cry of freedom.

The Union forever, hurrah boys, hurrah!
Down with the traitors and up with the stars;
While we rally round the flag, boys, rally once again
Shouting the battle cry of freedom.

We are springing to the call of our brothers gone before
Shouting the battle cry of freedom
And we'll fill the vacant ranks with a million free men more
Shouting the battle cry of freedom.

The Union forever, hurrah boys, hurrah!
Down with the traitors and up with the stars;
While we rally round the flag, boys, rally once again
Shouting the battle cry of freedom.

We will welcome to our numbers, the loyal, true and brave,
Shouting the battle cry of freedom,
And although they may be poor, not a man shall be a slave,
Shouting the battle cry of freedom.

The Union forever, hurrah boys, hurrah!
Down with the traitors and up with the stars;
While we rally round the flag, boys, rally once again
Shouting the battle cry of freedom.

For those who respect both our flag and our history, the issue of taking down monuments to Confederate leaders and generals and renaming military bases honoring them should be an easy one.

As Americans we should rally round the flag, shouting the battle cry of freedom.

Down with the traitors and up with the stars.

That means taking down the monuments and renaming the bases.

Down with the traitors and up with the stars.

July 6, 2020

Debt relief is now harder for students of for-profit colleges

[Cross-posted from The Hill]

By John Patrick Hunt

For-profit colleges are accused of deceiving students across the nation and leaving them with a legacy of student debt. Predatory schools allegedly targeted veterans for their GI benefits and also set their sights on lower-income communities and communities of color.

Now, new, controversial rules will make it more difficult for deceived student borrowers to get relief from their loans. The rules went into effect July 1, after President Trump — ignoring veterans and consumer groups — vetoed a resolution that would have stopped them.

More than 300,000 student borrowers have applied to the Department of Education for loan relief. based on school misconduct. The collapse of large chains of for-profit schools such as Corinthian CollegesITT, and the Art Institutes have highlighted allegations of false job placement statistics, misleading accreditation claims, deceptive claims about financial aid, and costs of attendance, and more.

After years of wrangling, in late 2018 a court ordered into effect rules the Obama administration had drafted to help deceived borrowers. But by that time, the department, now led by Secretary Betsy DeVos, was far along in drafting new rules. 

The DeVos rules make it harder for borrowers to get relief in many ways. One critical change is that the department can no longer handle similar claims in batches, for example providing relief to everyone who entered a program after the school lied about employment statistics. Now each individual borrower is on their own.

Moreover, those individual borrowers now must prove that the school made misrepresentation with the knowledge that it was false or with reckless disregard for the truth. An individual borrower usually will not be able to prove a school’s state of mind — the rules do not say how borrowers can get evidence on the point — so opponents of the new rules have aptly described them as imposing a “near-impossible” standard of proof. 

Although a pending lawsuit challenges the rules, its prospects are uncertain. With the Education Department abdicating its responsibility to protect student borrowers from fraud and deception, it is time to think about consumer bankruptcy as another avenue for relief. 

Despite a perception that it is impossible to escape student loans in bankruptcy, studies have found that 40-60 percent of borrowers who actually seek to do so enjoy at least some success. The main obstacle for the other 40-60 percent is the requirement, unique to student loans, that the borrower show “undue hardship” to get a discharge.

In evaluating undue hardship, courts typically look to factors such as the debtor’s age, health, and family responsibilities, as well as the repayment efforts the debtor has already made. By contrast, courts almost never consider whether the borrower was tricked into taking out the loan in the first place.

It is not entirely clear why this is so. Perhaps it is because courts developed their tests for undue hardship before enrollment at for-profit schools took off. For-profits reportedly have accounted for over 98 percent of higher education fraud complaints.

It is now time for a change. Bankruptcy courts should start to consider whether the school deceived the borrower into enrolling. Dictionaries tell us that the word “undue” means unjustifiably great. As between two borrowers, each of whom will suffer equally in trying to repay student loans, the one who was deceived has a stronger claim that hardship is “undue.”

The federal government makes most student loans, and it might be argued that the government is not responsible for schools’ misconduct. But since 1976, private consumer lenders have been responsible for sellers’ deception if the seller refers the buyer to the lender. Schools do more than “refer” students to federal student loans; they run the entire process of originating the loans under the department’s supervision.

Chapter 7 bankruptcy can affect credit scores, cause social stigma, and require the sale of the debtor’s property. It will not be an attractive option for all victimized borrowers.

However, many deceived borrowers must be in such financial distress that bankruptcy makes sense. Courts can apply bankruptcy law to offer a greater chance of relief than the DeVos rules do. And most importantly, bankruptcy courts can provide relief even if the political process in Washington, D.C is stalled.

Student loans are a source of rising anger and frustration, and loans arising from fraud are among the most infuriating. Bankruptcy courts must step in to help where the education department has failed.

July 1, 2020

Stopping the Trump administration from stopping gender-based asylum claims

[Cross-posted from ImmigrationProf Blog]

By Brian Soucek

The comment period is now halfway done for the Trump Administration’s new Proposed Rule Dismantling the Asylum System (not its official title). As I said in a comment submitted on June 29, the “the Proposed Rule is misguided and legally infirm in almost too many ways to count,” but I decided to focus just on one thing: its attempt to end gender-based asylum claims.

The Rule proposes a change to the nexus standard: the part of refugee law that says what it means for persecution to be “on account of” one of the five protected grounds—race, religion, nationality, membership in a particular social group, or political opinion. The Rule would add regulatory language, under the heading “Nexus,” saying that the Departments of Justice and Homeland Security, “in general, will not favorably adjudicate the claims of aliens who claim persecution based on … gender.”

There are at least six things wrong with this. The full comment spends 12 pages detailing them, but here’s a summary:

1.   The Rule confuses nexus analysis, which is about the reasons behind persecution, with membership in a particular social group, which requires adjudicators to determine whether particular groups (like women in a given country) should be recognized for asylum purposes. A general nexus bar would require evidence that women, for example, are not generally persecuted because of their gender. The Rule makes no such showing.

2.   The Rule doesn’t understand why courts require case-by-case judgments about what groups to recognize. In the olden days, when groups were judged based only on the immutability of their shared traits, categorical answers could be given about whether, say, “homosexuals in Cuba” should be recognized. Not anymore. The new test, which requires “social distinction” and “particularity” in addition to “immutability,” is now inherently fact-bound, and results can vary by time and place. The Departments don’t seem to recognize this important change, brought about by their own case law.

3.   Amazingly, the Rule offers one single citation for its sweeping exclusion of gender-based claims: a Tenth Circuit opinion from 2005, which has language suggesting that gender-based social groups might be too big to qualify for asylum. But—get this—the one case cited ultimately reaches the exact opposite conclusion! Using a citation this misleadingly in court would clearly be sanctionable. Here it just leaves the proposed gender bar utterly devoid of support.

4.   The Rule isn’t just wrong about the Tenth Circuit, it’s wrong on the merits: size doesn’t matter to whether a particular social group (like women) qualifies for asylum. Allowing gender-based claims is no more of a slippery slope than allowing claims based on race and national origin, which the statute requires. Since the five grounds are supposed to be interpreted in tandem, it would be unreasonable to impose a size limit on social groups that isn’t imposed on, say, religious, political, or racial groups.

5.   The bar on gender-based claims is clearly an attempt to thwart claims by women who have been abused by their partners, and to do so even more effectively, the Rule adds a new bar on “evidence promoting cultural stereotypes about an individual or a country.” But the bar only applies to evidence from asylum seekers, not the government! The Rule offers one example of stereotyping: evidence suggesting that “Guatemala has a culture of machismo and family violence.” It’s hard to know how applicants can show evidence of widespread and systemic harms in a country—the kind of pattern-or-practice evidence that even this Rule still allows—without having it rejected for promoting stereotypes. Regardless, the one-sided application of this evidentiary bar likely violates the Due Process Clause.

6.   Finally, the Proposed Rule was published on the same day as the Supreme Court’s historic LGBTQ-rights decision in Bostock v. Clayton County. Bostock makes clear that discrimination based on sexual orientation or gender identity is necessarily discrimination based on sex. That’s great news for LGBTQ employees, but bad news for LGBTQ refugees, at least if this Rule goes into effect. For substitute “persecution” for “discrimination,” and under the logic of Bostock, a general bar on gender-based persecution claims must generally also exclude claims from people persecuted for their sexual orientation or gender identity—despite the fact that U.S. asylum law has recognized LGBTQ claims for decades. The Trump Administration hasn’t acknowledged this implication of its Rule, much less made any attempt to justify such a dramatic change to asylum law.

There are overwhelming humanitarian and political reasons for not ending our protection of refugees who flee gender violence. But there are also at least six legal reasons why the Trump Administration’s attempt to exclude these refugees should be doomed to fail. For more on any of these reasons, you can read my full comment here. And there are still two weeks left to submit your own comment on the Rule here!

June 29, 2020

Episode 42: "Police, Race, and Federalism"

[Cross-posted from trumpcon.law]

By Elizabeth Joh

Episode 42 of the “What Trump Can Teach Us About Con Law” podcast: As people around the world continue to protest police brutality, Republicans and Democrats in Congress have proposed bills that would reform policing across the U.S. But in the American system, states are given a lot of latitude over law enforcement, down to the use of tactics like chokeholds and tear gas. Given the Constitution, what can the federal government actually do to make things better? Also, why was the ever-obscure Third Amendment trending last month? Listen to the episode

June 25, 2020

Immigration decisions in the 2019 Supreme Court term, upcoming cases in the 2020 term

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

The 2019 Term is not quite over, but the Court today decided its final immigration case.

Immigration proved to comprise a significant part of the U.S. Supreme Court's docket for the 2019 Term.  Eight decisions directly or indirectly address immigration issues.  The eight cases are a couple more than the Court's average number of immigration decisions in a Term. 

The case that received the most public attention (and hereherehere) was the Court's surprising rejection of the Trump administration's attempt to rescind the Obama administration's Deferred Action for Childhood Arrivals (DACA) policy The DACA case attracted more attention than almost any immigration case in recent years.  Although the legal issues decided by the Court in the case are relatively narrow, the political repercussions of the decision will shape the future of immigration reform.

The immigration decisions from the 2019 Term, with links to case information from SCOTUSblog, are listed below.  The Court devoted considerable attention to the judicial review of immigration matters and decided those cases in relatively conventional fashion.

1.  DACA

Department of Homeland Security v. Regents of the University of CaliforniaNo. 18-587 [Arg: 11.12.2019 Trans./Aud.; Decided 6.18.2020]; Trump v. NAACPNo. 18-588 [Arg: 11.12.2019 Trans./Aud.; Decided 6.18.2020]; Wolf v. VidalNo. 18-589 [Arg: 11.12.2019 Trans./Aud.; Decided 6.18.2020]

In a decision that surprised some Court watchers, the Court, in an majority opinion authored by Chief Justice John Roberts, held that the Department of Homeland Security’s decision to rescind the DACA policy was arbitrary and capricious in violation of the Administrative Procedure Act (APA). 

Some other aspects of the decision merit attention.  First, as an initial matter, the majority held that there were no jurisdictional hurdles to judicial review of the Trump administration's rescission of DACA.  Second, in Part IV of the the Chief Justice's opinion discussing the Equal Protection challenge to the rescission of DACA, Chief Justice Roberts wrote for only four justices; the plurality concluded that the pleadings did not give rise to facts leading to a reasonable inference that anti-Latina/o animus motivated the decision to rescind DACA.  Finding that the the Equal Protection claim should be allowed to be litigated, Justice Sotomayor did not join that part of the Chief's opinion.

2.  Cross-Border Shooting

Hernandez v. MesaNo. 17-1678 [Arg: 11.12.2019 Trans./Aud.; Decided 2.25.2020]

The Court held that the family of a young Mexican national who was killed by a U.S. border officer in a cross-border shooting, did not have a private right of action to sue.  This case had previously been to the Court and remanded for further consideration by the court of appeals.

Justice Alito, who wrote for the Court, summarized the facts of the case:

"The facts of this tragic case are set forth in our earlier opinion in this matter, Hernández v. Mesa, . . . (2017) (per curiam). Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was with a group of friends in a concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. The border runs through the center of the culvert, which was designed to hold the waters of the Rio Grande River but is now largely dry. Border Patrol Agent Jesus Mesa, Jr., detained one of Hernández's friends who had run onto the United States' side of the culvert. After Hernández, who was also on the United States' side, ran back across the culvert onto Mexican soil, Agent Mesa fired two shots at Hernández; one struck and killed him on the other side of the border."

3.  Judicial Review of the Application of Law to Undisputed Facts

Guerrero-Lasprilla v. BarrNo. 18-776 [Arg: 12.9.2019 Trans./Aud.; Decided 3.23.2020]; Ovalles v. BarrNo. 18-1015 [Arg: 12.9.2019 Trans./Aud.; Decided 3.23.2020]

Resolving a split in the circuits, the Court held that the phrase “questions of law” in the Immigration and Nationality Act’s 8 U. S. C. § 1252(a)(2)(D), includes the application of a legal standard to undisputed or established facts.

4.  Judicial Review and Expedited Removal

Department of Homeland Security v. ThuraissigiamNo. 19-161 [Arg: 3.2.2020 Trans./Aud.

The case raised the issue of the constitutionality of expedited removal of noncitizens.  The Trump administration has sought to expand expedited removal, which increased the importance of the Court's resolution of the case.  The issue is whether, as applied to the respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the suspension clause.  As Kari Hong summarized the issue in the case:

"In Department of Homeland Security v. Thuraissigiam, the government is asking the Supreme Court to uphold a system of limited and narrow judicial review over the expedited removal procedure. In 1996, Congress created the expedited removal process, along with other bare-bones administrative procedures, that privilege speed over process. In expedited review, one front-line immigration officer can make the immediate decision to deport someone without a hearing if that the person is not a citizen and cannot prove that they lived in the United States for the past two years. If the person expresses a fear of persecution, an asylum officer then conducts a `credible fear interview' to assess a potential claim. Only if a `significant possibility' exists that the applicant’s asylum claim would succeed, are they given a full immigration hearing."

A 5-4 Court, in an opinion by Justice Alito, held that, as applied to the case at hand, the expedited removal statute does not does not violate the provision of the U.S. Constitution barring suspension of habeas corpus.  Thuraissigiam, who was apprehended about 25 yards from the U.S./Mexico border after entering the United States without inspection, did not seek release from custody, but an additional opportunity to obtain asylum.  Applying an originalist approach to constitutional interpretation, the majority held that, because it applies to challenges to detention, the Suspension Clause did not apply to this case and that the 1996 immigration reforms barred judicial review of the Thuraissigiam's asylum claim.  The Court also rejected the arguments that Thuraissigiam's due process rights had been violated by the lack of a court hearing on his asylum claims.  In so doing, the majority invoked extreme plenary power cases, including Knauff and Mezei, which the U.S. government will likely find useful in the future in seeking to limit the rights of noncitizens seeking admission into the United States.    

5.  Judicial Review/Torture Convention

Nasrallah v. BarrNo. 18-1432 [Arg: 3.2.2020 Trans./Aud.; Decided 6.1.2020]

The Court held that 8 U. S. C. §§ 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to an order denying relief under the Convention Against Torture, which protects noncitizens from removal to a country where they would likely face torture. Torture Convention claims thus will continue to be subject to judicial review.

6.  Identity Fraud and Federalism

Kansas v. GarciaNo. 17-834 [Arg: 10.16.2019 Trans./Aud.; Decided 3.3.2020

The Court held that federal immigration law did not preempt the Kansas identity fraud statutes under which three undocumented immigrants were convicted  for using another person’s Social Security number on tax-withholding forms submitted to their employers. 

7.  Cancellation of Removal

Barton v. BarrNo. 18-725 [Arg: 11.4.2019 Trans./Aud.; Decided 4.23.2020].

The Court held that, in determining eligibility for cancellation of removal of a lawful permanent resident who commits a crime, an offense listed in 8 U. S. C. § 1182(a)(2) committed during the initial seven years of residence need not be one of the offenses of removal.  Jayesh Rathod for SCOTUSblog reviews the competing views among the justices about the (1) proper interpretation of the immigration statute; and (2) the treatment of eligibility for removal of noncitizens with criminal convictions.  In Rathod's view, Justice Kavanaugh's majority opinion "upholds [a] restrictive reading of [the] immigration statute, limiting relief to noncitizens facing removal."

The Immigrant Legal Resource Center provides this practice advisory on the technical cancellation of removal issues decided by Barton v. Barr.

8.  First Amendment/Immigration Representation

U.S. v. Sineneng-SmithNo. 19-67 [Arg: 2.25.2020 Trans./Aud.; Decided 5.7.2020]. 

The Supreme Court held that the Ninth Circuit abused its discretion in reaching out to decide a question never raised by the respondent (an immigration consultant) -- whether 8 U. S. C. § 1324(a)(1)(A)(iv) (making it unlawful to "encourage[] or induce[] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law) is unconstitutionally overbroad in violation of the First Amendment.  The Court did not address the First Amendment question in its decision.

As summarized by Jack Chin on SCOTUSblog,

The Supreme Court . . . resolved United States v. Sineneng-Smith without reaching the merits of the underlying First Amendment question, instead holding that the . . .  9th Circuit improperly injected the issue into the case. The court sent the case back for reconsideration based on the claims of the parties. Evelyn Sineneng-Smith had been convicted of violating 8 U.S.C. § 1324(a)(1)(A)(4), which prohibits `inducing or encouraging' unauthorized immigration. . . .  After her appeal had been briefed and argued in the 9th Circuit on more prosaic issues, the panel requested briefing on whether the statute was unconstitutionally overbroad, an issue Sineneng-Smith had not raised. . . . The 9th Circuit ultimately reversed the conviction because it found that the statute was overbroad, the ground that the court’s re-argument order had brought into the case. In an opinion by Justice Ruth Bader Ginsburg, a unanimous Supreme Court held today that `the panel’s takeover of the appeal' warranted reversal and remand for reconsideration in light of `the case shaped by the parties.'”

The 2020 Term

At least for now, there do not appear to be any major cases on the Court's docket for the 2020 Term.  The following immigration cases currently are set for consideration in the Supreme Court's 2020 Term:

1.  Relief from Removal

Pereida v. BarrNo. 19-438

This case raises the issue whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.   As described by Amy Howe on SCOTUSblog.

"The question arises in the case of Clemente Pereida, who was convicted in Nebraska of `attempted criminal impersonation,' a misdemeanor for which he was fined $100. The dispute centers on whether the conviction was a `crime of moral turpitude,' which would bar Pereida from applying for relief from deportation. The federal government agreed with Pereida that review should be granted, although it agrees with the U.S. Court of Appeals for the 8th Circuit that Pereida is not eligible for relief from deportation."

2.  Effectiveness of Notice to Appear

Niz-Chavez v. BarrNo. 19-863

This case is a followup to Pereira v. Sessions (2018), which addressed the effectiveness of a notice to appear that fails to comply with the statutory requirements.  The issue in Niz-Chavez is whether, to serve notice in accordance with 8 U.S.C. § 1229(a) and trigger the stop-time rule (the rule that the time stops for satisfying the time requirement for eligibility for relief from removal), the government must serve a specific document that includes all the information identified in Section 1229(a), or whether the government can serve that information in a series of documents issued at the time of its choosing. 

3.  Immigrant Detention and Bond Eligibility 

Albence v. Guzman ChavezNo. 19-897 

The issue in this case is whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. § 1231, or instead by 8 U.S.C. § 1226.  As John Elwood explained on SCOTUSblog, the distinction between the two provisions matters because under Section 1226 noncitizens generally have the right to a bond hearing, while the government argues that they do not have that right under Section 1231.

June 23, 2020

How quickly we forget: Of fathers and essential workers

[Cross-posted from CalMatters]

By Lisa R. Pruitt

The coronavirus pandemic has recently chipped away at the myth that the United States is a nation unstratified by class. The mid-March scramble for food and toilet paper drew our collective awareness to lowly supply chain jobs temporarily aggrandized as “essential.” 

The three months we’ve now spent in some degree of quarantine have proved long enough to see and publicly thank warehouse workers, grocery store clerks, and truck drivers – but also then to quickly forget them once we got our necessities stockpiled.  

The whiplash represented by this speedy cycle of seeing and then unseeing workers has been especially jarring for me because I’ve spent my life straddling two worlds: that of the ruling class, who generally enjoy the luxury of working from home and doing the stockpiling, and that of the working class, who grease the skids of our lives.   

For more than two decades, I’ve been a law professor at the University of California, Davis, where I write about race and class.  But I grew up in middle America, the daughter of a long-haul truck driver.  My father used to come to the Great Central Valley to pick up produce to deliver to points east.  I moved to the Valley to teach law.  My working-class childhood is now deep in my rear-view mirror, and my current milieu has socialized me over many years to be ashamed of it.

So I was surprised in the early days of sheltering in place when the New York Times ran an op-ed on the importance of truck stops and a front-page feature about a trucker who was continuing to drive as his wife and children hunkered down at home in Wyoming.  I was stunned by Marketplace’s attention to the industry, including an explanation of the pressing need for more truckers.  I could hardly believe my eyes when governors tweeted thanks to – of all folks – truckers.      

When logistics experts explained to the media that truck drivers are “skilled labor” who take months to train, I remembered my father, who I came to call Avery.  I never ceased to be amazed at Avery’s ability to thread the needle with his big rig, backing it between others at a crowded loading dock or negotiating a busy interstate highway.  

I grew up immersed in the gritty details of trucking:  fuel reports, air-ride seats, logbooks, CB radios, an unending cycle of breakdowns and repairs.  But we were proud to be a trucking family.  

My sister and I once decorated our father’s homemade birthday cake with a big rig, writing “Avery Pruitt Trucking” in frosting on the trailer.  One Christmas I cross-stitched an 18-wheeler and framed it to hang on the wall, a present for Avery.  Snapshots in family albums, even on special occasions like Easter, featured the big truck as backdrop.  The 1977 film “Smokey and the Bandit” –  starring Burt Reynolds and Sally Field – was affirming for us, as were trucking songs like C.W. McCall’s “Convoy,” which topped both pop and country charts in 1975. 

Back then, truckers seemed all-American, with appeal well beyond the down-market, redneck crowd that my current milieu associates with much blue-collar work.  This was, of course, before our nation thought and spoke in terms of red states and blue states, before cultural and political rifts divided coastal elites from the uncouth denizens of what we now denigrate as flyover country or, worse still, envisage as some monolithic Trumplandia. 

But even when pop culture was glamorizing trucking, I saw the toll it took on Avery.  The hand-to-mouth financial existence was stressful for all of us, the constant struggle to make the truck and trailer payments, to buy groceries and pay other bills.  Then there were the “little white pills” Avery took to stay awake; the cigarettes and all that cigarette smoke trapped in the cab of his truck; the beer he drank to wind down once he got home.   

Our father-daughter relationship became strained when I was a teen.  As I accumulated college and graduate degrees, the rift between us widened.  Avery didn’t have the capacity to appreciate what I was doing with my life, and I didn’t do a good job of affirming him for his hard work, for what he was accomplishing.  

Avery and I were both fighting the odds, striving to pull away from the sticky lower rungs of the socio-economic ladder to which we were born.  But as access to higher education was enabling me to win my struggle, Avery was losing his.  

The year I finished law school and started a PhD program, Avery had his first heart attack, a massive one that left him disabled at the age of 46.  He later succumbed to heart disease and emphysema.  Today, scholars who study long-term trends among workers like Avery would label his a “death of despair,” recognizing how his downward mobility was in a fatal feedback loop with alcohol, drugs and hopelessness.  

Avery was an extraordinarily hard-working and dependable cog in the American economy.  I have no doubt that if he were alive, Avery would have basked in the glow of truckers’ fleeting moment in the limelight this spring.  He loved trucking and would have relished being designated “essential,” but what Avery would have appreciated more was pay and security commensurate with his skilled labor.  

As the economy opens up and we seek some semblance of normalcy, we must not look away from workers like Avery.  We must remember those who emerged briefly from the shadows just a few months ago, as the scales of class privilege fell – at least temporarily – from the eyes of the ruling class.  Further, we must do more than tweet platitudes of gratitude.  We must find a way to give these workers – always essential, whether we said so or not – their fair share of the American dream.   

June 19, 2020

DACA, college and university students, and the future of U.S. immigration law

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

 

At the end of the term when the Supreme Court hands down its most controversial rulings, the Supreme Court in a 5-4 decision, with the a majority opinion by Chief Justice John Roberts, rejected the Trump administration’s attempt to dismantle the Obama administration’s Deferred Action for Childhood Arrivals (DACA) policy. The much-anticipated decision promises to have monumental impacts on the lives of hundreds of thousands of young beneficiaries of DACA, including many college and university students. The decision also will deeply influence the future political dynamics surrounding immigrant reform. 

Ultimately, the Supreme Court held that the Trump administration’s effort to rescind DACA, without, among other things, considering the interests of the DACA recipients’ reliance on the policy, was arbitrary and capricious in violation of the Administrative Procedure Act.  

Background

DACA did not emerge on a blank slate.  The policy came on only after years of political activism, ferment, and the repeated failure of Congress to pass comprehensive immigration reform.  One of the central bones of contention in the debate over reform has been whether to provide durable legal status to the approximately eleven million undocumented immigrants living in the United States.  

In lieu of the prolonged failure of Congress to enact immigration reform, the Obama administration in 2012 announced and implemented DACA.  Based on a long history of what is known as deferred action, that policy provided temporary relief from removal from the United States to nearly 800,000 undocumented immigrants, including many high school and college students, who came to the United States as children.  A form of prosecutorial discretion, deferred action exercised by the U.S. government in deciding which noncitizens to prioritize for removal, offers recipients limited protection from removal.

Critics vociferously attacked DACA as an unconstitutional “amnesty” that unlawfully intruded on the power of Congress to determine which noncitizens are subject to removal from the United States.  Despite the harsh criticism, various legal challenges to DACA failed to derail its implementation.

Making aggressive immigration enforcement the cornerstone of his 2016 presidential campaign, Donald J. Trump promised to dismantle DACA.  His threat struck fear in the hearts of beneficiaries of the policy, a fear that grew with the administration’s initial immigration enforcement efforts.  After months of discussion and debate, then-Attorney General Jeff Sessions, on behalf of the Trump administration, later announced the end of the policy. Controversy, protests, and legal challenges followed. 

Several lower courts enjoined the attempt by the Trump administration to end DACA.  From the beginning, many observers knew that the Supreme Court ultimately would determine its fate.  The cases slowly made their way to the Court.

DACA’s Impacts

DACA provided some modicum of relief from removal to hundreds of thousands of young undocumented immigrants.  The relief provided economic benefits to the nation and educational gains to DACA recipients.  Latinx persons comprise close to ninety percent of the DACA recipients; citizens of Mexico, El Salvador, Guatemala, and Honduras accounted for the vast majority of them.   (Four Justices who joined the majority found that in Part IV of the Chief''s opinion that there was insufficient evidence that DACA's rescission was motivated by racial animus: although joining most of Chief Justice Roberts' opinion, Justice Sotomayor did not join Part IV.).

Importantly, DACA recipients received work authorization.  As recipients, they were not subject to the bar on employment that applies to undocumented immigrants.  Work authorization made jobs available to DACA recipients.  That, in turn, made university students eligible for federal work study and other employment.  As a result, work authorization meant that DACA recipients were better able to fund their higher education.  In that respect, DACA promoted higher education for young immigrants.

In the wake of DACA’s implementation, University of California (UC) President Janet Napolitano, who as Secretary of the Department of Homeland Security under President Obama implemented the DACA policy, created the UC Immigrant Legal Services Center, which provides legal assistance to immigrant students and their family members on the ten University of California campuses.   As one of the proponents of the Center, I argued that it could provide invaluable assistance to students who, among other things, were applying for DACA and DACA renewals.  Housed at UC Davis School of Law, the Center represents the recognition by the University of California that many students and parents have immigration-related legal needs that warrant university assistance. 

The UC Immigrant Legal Services Center offers students an extensive set of on-campus legal services—from informational workshops to consultations to direct legal representation in immigration court.  In 2018/19, the Center reported that it opened nearly 1500 cases, consisting of 784 DACA renewal applications, 330 consultations, and 362 other forms of legal services.     Initially funded by UC, the Center now receives funds directly from the California legislature, which has declared California to be a sanctuary for immigrants.  

Undocumented students and DACA recipients can be found on each of the ten University of California system.  Many are undergraduates.  Others attend graduate and professional schools, including Law schools.  In some states, such as California, they are eligible to practice law.  

DACA had other significant ripple effects for immigrants in colleges and universities across the United States.  Indeed, DACA’s political impacts as a practical matter may dwarf the important, but limited, relief provided to its beneficiaries.  Specifically, the policy bolstered a potent grassroots movement seeking to vindicate the rights of immigrants.  With DACA’s future uncertain, some congressional leaders again raised the possibility of comprehensive immigration reform and a DREAM Act, a version of which has been proposed for roughly two decades and would afford a path to legalization for young undocumented college and university students.  An organized effort even emerged calling for the full-blown abolition of ICE, which in some ways mirrors the current calls to defund the police.  

DACA recipients are politically active on university campuses.  They prod universities to protect immigrants. University leaders, who often steer clear of controversial political debates, criticized the rescission of DACA, and its adverse impacts on students.   Not that long ago, colleges and universities did not broadcast the enrollment of undocumented students, fearful of a political outcry if their presence became common knowledge.  But politics have changed.  DACA recipients and immigrants generally are provided increasing protections by state and local governments from aggressive U.S. immigration enforcement.  Some advocates today contend that colleges and universities should be “sanctuaries” for immigrant students subject to the Trump administration’s aggressive immigration enforcement tactics.  

The University of California and many others filed lawsuits challenging the rescission of DACA.  165 colleges and universities filed a friend-of-the court brief in the Supreme Court opposing rescission and supporting the legal challenge to DACA’s dismantling.  

In the end, DACA emerged as representing something much more than the mere extension of a limited form of relief to young undocumented immigrants.  It today is nothing less than a lightning rod in the contemporary debate over immigration reform.  DACA recipients and their allies demand nothing less than simple justice for immigrants.

The Supreme Court

From the beginning, Supreme Court observers recognized that the justices likely would be divided about the lawfulness of the Trump administration’s attempt to end DACA.  A 5-4 Supreme Court found that the Trump administration’s decision to rescind DACA was arbitrary and capricious and sent it back for further consideration.  The Court did not decide the lawfulness of DACA and all seemed to agree that, if proper procedures were followed, the President could put an end to DACA.  However, in many respects, the majority’s reasoning mirrored the Court’s reasoning last year in holding that the Trump administration had not provided an adequate reason for including a question on U.S. citizenship on the 2020 Census.   The administration ultimately abandoned the citizenship question.  We will need to wait to see what the administration will do with the rescission of DACA sent back to it for reconsideration.

June 8, 2020

America's 'disability alibi'

[Cross-posted from the San Francisco Chronicle]

By Jasmine E. Harris

One thing should now be clear: In America, disability can be a license to kill, to surveil, to disregard human beings. George Floyd is just the latest example.

On June 1,  autopsy reports from the Hennepin County (Minn.) Medical Examiner and the Floyd family revealed that Mr. Floyd’s death was indeed a homicide, but diverged with respect to causation. The independent report — consistent with the viral videos capturing the encounter — found that Mr. Floyd died of “asphyxiation from sustained pressure,” or suffocation, after 8 minutes and 46 seconds of oxygen deprivation. By contrast, the county report concluded that Mr. Floyd’s cause of death was “cardiopulmonary arrest complicating law enforcement subdual, restrain, and neck compression.”

Mr. Floyd, in other words, had a heart attack while Minneapolis police officers restrained him, echoing Friday’s preliminary finding Mr. Floyd’s heart conditions (derivative of high blood pressure and cholesterol) played a central role in his death. This causal divergence is (and will be) significant in how the public and the criminal justice system assign liability and mete out punishment. Whether these underlying health conditions played a role in Mr. Floyd’s death, however, is not the key question. Should the presence or absence of disability make his death any less meaningful or problematic?

Disability offers a convenient, publicly acceptable alibi for bad actors in our country. It is a way of excusing heinous crimes and acts against our fellow human beings and, in the process, earning public sympathy or support. It is a visible reminder of what little value society places on the lives of people with disabilities. The recent news cycle demonstrates other examples of the disability alibi at work.

First, Miami-Dade police arrested and booked Patricia Ripley on a charge of first-degree murder for taking her 9-year-old autistic son, Alejandro, to a nearby canal and drowning him. In her defense, she reportedly told police officers, “he’s going to be in a better place.” Researchers estimate that every week, one person with a disability is murdered by a family member or caregiver who then receives greater leniency for “mercy killings.” Reports of family members assaulting or killing their disabled kin often fly under the radar, or worse, engender public support for the killer. A New York Times Magazine cover story from December, for example, framed the killing of an older woman with dementia by her husband as an act of “love.”

Second, YouTube personalities Myka and James Stauffer ignited a social media firestorm when they announced their decision to “rehome” Huxley, their 4-year-old autistic son adopted from China. The Stauffers explained to their YouTube followers that the international adoption service did not tell them that Huxley had “special needs” when they adopted him and, they said that though they provided therapies for him, Huxley’s needs were more than they could deal with.

Some followers criticized the family for using Huxley as a social media prop and then discarding him when he manifested typical behaviors associated with his disability. Others defended and praised the Stauffers for “having the courage to make such a heartbreaking and hard decision.” While adoptive families should be afforded some latitude to define and determine what a “fit” might look like to maximize the potential for success, these discussions should focus on balanced, evidence-based information and not on misperceptions about the quality of life a child with a disability (and the child’s family) will have in the future. For example, although people without disabilities would predict that the lives of those with disabilities are unhappy, research shows that people with disabilities report levels of happiness similar to those of nondisabled people.

Third, and perhaps the most literal deployment of the disability alibi, are the well-funded nursing facility lobbyists who have convinced 20 states to limit the legal liability of long-term care facilities for COVID-related harm. This request for safe harbor comes at a time when more than 28,000 people — a majority older adults and people with disabilities — have died of COVID-19 in these care facilities. To put this in perspective, this number represents almost a third of the country’s overall pandemic losses. The prospect of granting immunity to these facilities without legal process for those who bear the disproportionate costs of the pandemic shines an industrial-sized spotlight on the devaluation of disabled lives.

This is not the first time America has reached for the disability alibi in this pandemic. Consider, for example, health care rationing policies that explicitly excluded some people with cognitive disabilities from receiving life-saving treatment based on stereotypes about their quality of life relative to nondisabled people.

Disability advocates responded to national reports of shortages of ventilators and hospital beds by swiftly filing legal complaints with the U.S. Department of Health and Human Services to challenge rarely questioned (and well-defended) bioethics principles underwriting the rationing policies. Close examination of these arguments reveals an eerie similarity to the reasoning proffered by Supreme Court Justice Oliver Wendell Holmes in his infamous 1927 majority opinion upholding the constitutionality of Virginia’s compulsory sterilization law. Justice Holmes in Buck v. Bell reasoned that “the public welfare may call upon the best citizens for their lives” — a reference to soldiers — and, therefore, “it would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned” — a reference to people with disabilities.

While state rationing policies do not reflect the same vitriolic language on their face, the notion that disabled lives can and should be sacrificed for a greater public good remains true.

The presence of disability should never be a legal or moral alibi, an excuse for unethical or illegal actions. George Floyd and the countless others who have died at the hands of those charged with protecting them deserve better, they deserve justice. The differential treatment of people with disabilities on the basis of disability — in adoption, rehoming, rationing medical care, or “mercy killing” — is immoral and, in many cases, illegal. The Americans with Disabilities Actthe civil rights act for people with disabilities, turns 30 years old in less than two months. The ADA offers legal remedies for discrimination in employment, public services, and places of public accommodations. Yet the ADA’s promise of meaningful equality remains unfulfilled in large part because of widespread misconceptions about disability.

The death of George Floyd, too, despite what you will hear from reports and medical experts during Officer Derek Chauvin’s trial, should not be excused because America, once again, accepts the disability alibi.

June 1, 2020

The Meaning of DACA

By Kevin R. Johnson, Michael A. Olivas, and Shoba Sivaprasad Wadhia

[Cross-posted from ImmigrationProf Blog]

The Supreme Court will soon release an opinion on the lawfulness of the Trump administration’s choice to end DACA or Deferred Action for Childhood Arrivals (DACA). Former President Barack Obama rolled out DACA in June 2012 and the Department of Homeland Security implemented it two months later through a memorandum signed by then-Secretary Janet Napolitano.

DACA, based on a conventional concept of prosecutorial discretion, provided limited relief from removal – and work authorization -- to nearly 800,000 young undocumented immigrants through a discretionary tool called “deferred action.” All legal challenges to DACA, including one by campus immigration hawk former Maricopa County (Arizona) Sheriff Joe Arpaio, failed. How will the story of DACA be remembered? 

Much more than the sum of its parts, DACA will be remembered as an intriguing political story. For years, Congress introduced legislation known as the DREAM Act to provide legal status and a pathway to permanent residency for young undocumented college students. Congress has debated some kind of comprehensive immigration reform over two decades. All of these efforts failed. Said President Obama in announcing DACA “In the absence of any immigration action from Congress to fix our broken immigration system, what we’ve tried to do is focus our immigration enforcement resources in the right places.” DACA helped jump start the forceful movement across the nation calling for the vindication of the rights of immigrants.

Politics led to DACA’s demise. Donald J. Trump ran for President on a strident immigration enforcement ticket and promised to end the “unconstitutional” DACA policy. After the inauguration of President Trump and lobbying by some Republican leaders to keep DACA, the administration tried to terminate DACA and announced this “wind-down” in a press conference on September 5, 2017. Ultimately, political slogans, not reasoned analysis, were offered for the decision to end DACA.

The Trump administration’s arguments to the Supreme Court defending the end of DACA were also mired in politics. In a convoluted fashion that wended its way to federal appellate courts from coast to coast, the administration—through a series of Interim leaders—simply ignored the requirements of the Administrative Procedure Act and in an arbitrary and capricious way simply declared that DACA was “illegal,” and that they were required to end it.

The claim that DACA was somehow “illegal” was simply not true. No court found it to be, and for good reason. Deferred action is an instrument of discretion used to shield “low priority” immigrants from deportation. Deferred action enjoys a long history and legal foundation across both Republican and Democratic administrations. The administration could decide to end the policy it, but not by undertaking the judicial role of declaring their own exercise of discretion to be unconstitutional. As it did in the Department of Commerce v. New York (2019) in manufacturing a civil rights rationale for a U.S. citizenship question on the 2020 Census that would have chilled the participation of many Latina/os and immigrants, the administration simply misrepresented facts. The Supreme Court should require the Department of Homeland Security to undertake the searching analysis of facts and policy impacts, and honestly proceed, playing by the rules. Those with DACA have upheld their part of this bargain, and the administration must abide by open and fair procedures required by the law.

DACA will be reminisced as a story about human pain and hope. Said one DACA recipient one author spoke to described September 5, 2017, the day the end of DACA was announced as “just an awful day … Eventually you just get over the pain, get over the fear… and you continue to organize and protect your community in whatever way you can.” Throughout the time DACA has been tossed around in the courts, thousands continue to build families of their own, work in the frontlines of healthcare. and revitalize classrooms in colleges and universities across the country, a phenomenon we have seen first-hand as educators and administrators. DACAmented recipients are now our doctors, lawyers, and schoolteachers, repaying the investment this country has made in them.

If the Supreme Court fails to require the Trump administration to abide by the law, as we urge the Court to insist upon, those with DACA must live under a cruel Sword of Damocles, with no clear pathway to legal permanent residency. They deserve an honest policy determination, and the Supreme Court should insist on no less. Ultimately, it will take Congressional action to enact a DREAM Act, and comprehensive immigration reform to enable these young members a means to their rightful place in our society.  

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Kevin R. Johnson is Dean of the University of California, Davis School of Law and Mabie/Apallas Professor of Public Interest Law and Chicanx Studies.

Michael A. Olivas is William B. Bates Distinguished Chair of Law, Emeritus, at the University of Houston Law Center and the author of Perchance to DREAM: A Legal and Political History of The DREAM Act and DACA.

Shoba Sivaprasad Wadhia is Samuel Weiss Faculty Scholar, Founding Director of the Center for Immigrants’ Rights Clinic at Penn State Law in University Park, and the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases and Banned: Immigration Enforcement in the Time of Trump.