[Cross-posted from ImmigrationProf Blog]

By Raquel Aldana

I sat across a group of Haitians at a small restaurant in Tijuana, La Antigüita Tamales. King Hall students had just finished legal consultations with them about their prospects for asylum in the U.S. We shared a meal and greeted each other as they talked amongst themselves in Creole. One of them asked me in good Spanish if I was with the group from the U.S. I nodded. Next week they will open the border, he said, and I will seek asylum. I smiled meekly and engaged him with his story. It weighed heavily on me to have to explain to him the many reasons why the predicted end of Title 42 (not official yet I cautioned him) would unlikely alter the course of his fate. But it seemed like since our arrival, my students and I could offer little hope to most asylum seekers that an open border meant an open door, at least to them.  

That morning alone I met two Mexican families facing terror in their own country. One young couple, with five young children, fled when a group threatened to kill them and their children. It proved too much when constant images of mutilated children landed on their phone daily for their alleged failure to pay a debt which had quadrupled in weeks when the terms of repayment shifted, and exuberant interests kicked in. Another mother was with her 22-year-old son who just two weeks ago had been kidnapped and tortured by a cartel and then released only to warn his family they would be killed if he and his younger brother failed to join them.  I tried my hardest to help these families prepare for an eventual credible fear interview. Attempting to fit their terror into the constraints of the nexus requirement proved frustrating and inhumane. For the parents, the why these cartels chose them and their children to terrorize seemed both irrelevant and obvious. I agreed. And yet, explaining the obvious, that these groups target the most vulnerable among them simply because they can, would not suffice under the immigration definition of particular social group. As we struggled together to construct a plausible particular social group, what should have been a slam dunk case became a low probability of success for U.S. asylum.        

Increasingly, most asylum seekers who fail to meet a dated and strict definition of asylum face cruel barriers and terrible odds even when they are allowed to make a claim. In El Salvador yesterday, a gang-related killing spree left 62 murdered in the streets in a single day. Most were vendors and other poor souls caught up in the terrible violence the government cannot or will not control. Neither the rates of the killings nor their cruelty was at all different from what Salvadoreans endured during the country’s other civil war. But then and now, Salvadoreans and Mexicans and Haitians and Guatemalans and Hondurans and many others facing so-called private forms of generalized terror encounter shut doors for asylum when they arrive at our borders. Remember when U.S. law turned a blind eye to domestic violence directed at women because it was so-called, a private sphere? This is not different. But there is nothing private about the violence asylum seekers from these nations are enduring. Their terror is in full public display and the root causes of it comes with public dirty hands, with our own nation bearing blame.

Our violent borders and our wars on drugs, fought inside and throughout the American hemisphere, are but two reasons why the U.S. government cannot simply dismiss the terror in these countries as privatized forms of violence we can ignore.

I set out to write a more celebratory blog. The past three days have been intense and, yet, during it, the enormous talent and commitment of eight King Hall students who traveled to Tijuana has been on full display. Over three days, Pamela, Jennifer, Michael, Vannalee, Monica, Lorena, Jazmine and Ivette met with over 150 migrants, some hoping to seek asylum, other hoping to return to their families and home after deportation. We came here with open eyes. We knew we would bear witness to trauma. We also knew we came bearing little hope from law. Despite this, the students did an amazing job with what they had and provided an enormous help to migrants. Sunday afternoon, for example, only two MPP cases remained; a Nicaraguan and a Colombian asylum seeker had hearings in two days, neither of them had lawyers. Over several hours, our students sat with them and helped draft a pro se case of how best to assert their claims. Each of our students has a story like that to share. They will share some of these stories and the insights they gleaned from their time in Tijuana on April 4 at Noon at King Hall, Room 1301 or over zoom. You can register here.

I want to close by acknowledging the heroes and sheroes we met in Tijuana. Among them, three amazing individuals deported from the US, Ester, Danny and Pricila, now run shelters, provide food, and otherwise support the legal and social needs of migrants. Our students fundraised for this cause, and we are sending donations to them to help them with their labor. It is not too late to add your grain of salt. You can do so here.  Finally, I want to thank Robert Irwin whose Humanizing Deportation Project set the stage for our work in Tijuana. I also want to thank King Hall for funding student travel, and the many other entities at UC Davis, like the Office for Public Scholarship and Engagement and the Global Migration Center for their amazing support.

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

Terminology has proven to be tricky in public discussions of immigration.  Recognizing that the terms “alien” and “illegal alien” dehumanize human beings and rationalize their harsh treatment, news services now refer to undocumented immigrants.  For similar reasons, a proposed immigration reform bill would replace “alien” with “noncitizen” in the U.S. immigration laws. 

Reference to a suspected criminal’s undocumented status in a news story also may be problematic.  Consider this March 8, 2022 Fox News headline:  “Gunman who Killed Three Daughters in California Church was in US Illegally.” By tapping into popular stereotypes, such references inflame passions about—and in effect constitute subtle racial code for--Latina/o immigrants.  The salacious reference to a person’s immigration status results in the same kinds of damages as referring to an “African American” criminal defendant, which best journalistic practices generally prohibit.  Such references to immigrant status generally should be similarly avoided in crime news stories.

A Recent Example of News Exploitation of the Undocumented Immigrant

Last week, press outlets across the nation reported on a tragedy at a church in Sacramento, California.  On a supervised visit, a father, a Mexican citizen reportedly with mental health and drug problems, killed his three children and a chaperone before killing himself at a church.  Following an Associated Press (AP) report that the suspect had overstayed his visa and thus was not authorized to be in the United States, a local Sacramento news station reported that:  “David Mora Rojas . . . used a ‘ghost gun’ [a manufactured gun without registration] in the shooting.  Mora Rojas also overstayed his visa after entering California from his native Mexico” (emphasis added). 

AP originally speculated in its report “that a possible motive [for the killings] was fear of being separated from the children through deportation.”  In correcting the story, AP later admitted that “the AP did not have the reporting to substantiate that as a possible motivation.”

Oddly, rather than focus on mental health, drugs, or the proliferation of “ghost guns,” news agencies and politicians have seized on the news report about the father's immigration status and attempted to make a family tragedy into an immigration issue.  For example, Sacramento County Sheriff Scott Jones, currently running for Congress, declared in a Facebook post that blame for “this horrific tragedy” should be placed on “the deplorable state of our national immigration policies, and California’s Sanctuary State Laws.” 

Sensationalism in news stories unfortunately is nothing new.  It occurs regularly in reports about immigrants.  Although Fox News highlighted the undocumented status in the Sacramento case, such treatment is not confined to conservative news outlets, with the mainstream AP gratuitously referring to the Sacramento suspect’s immigration status, ABC News reported that, an “undocumented immigrant from Mexico, was found guilty by jury of first degree murder [of Mollie] Tibbets . . . in . . . rural . . . Iowa, in July 2018.” 

But what did David Mora Rojas’ immigration status have to do with the killings in Sacramento?  Unlike mental health, drugs, and ghost guns, his immigrant status does not seem relevant to the tragedy.  Being undocumented is not necessarily a crime and is not necessarily newsworthy. The fact that he overstayed his visa and thus was technically undocumented does not relate to the crime of murder.  Injecting his undocumented status into a news story about the tragic killings serves no other function than to stir up fears of immigrants and crime.  Moreover, because the popular stereotype of the criminal immigrant in the United States is that he is Mexican, the reference to undocumented status signals to many the Mexican background of the criminal suspect.  In announcing his successful 2016 run for President, Donald Trump played into this stereotype by characterizing Mexican immigrants as “criminals” and “rapists.”

Although some immigrants—from Mexico and elsewhere—do in fact commit crimes, studies consistently show that immigrants commit crimes at lesser rates than native born U.S. citizens.  Moreover, news stories that focus gratuitously on immigration status can result in the proliferation of hate crimes.  Recall that the shooter in the mass murder of Latina/os in El Paso in 2019 wrote a “manifesto” with the kinds of hatred directed at Mexican immigrants repeating many of the invectives that President Trump did in referring to people of Mexican ancestry.

There is another reason to avoid reference to immigration in crime news stories.  Undocumented status is not always easy to define.  A person seeking asylum for fear of gang violence in Honduras may not currently have authorization to be in this country but might be entitled to it.  A long-term resident without authorization also might be eligible for relief from removal under the immigration laws.  Being undocumented is not always as clear-cut as a simple reference to being undocumented might suggest. 

Extending the AP Stylebook on Racial Identification to Immigration Status

The AP Stylebook, a bible of sorts of best journalistic practices, cautions journalists on publishing information about a person’s race:  “Consider carefully when deciding whether to identify people by race.  Often, it is an unrelated fact and drawing increasing attention to someone’s race or ethnicity can be interpreted as bigotry.” (emphasis added).  The Stylebook explains its call for caution as follows:

[i]n cases where suspects or missing persons are being sought, and the descriptions provided are detailed and not solely racial. Any racial reference should be removed when the individual is apprehended or found . . . . In other situations when race is an issue, use news judgment. Include racial or ethnic details only when they are clearly relevant and that relevance is explicit in the story.  (emphasis added)

Because there are many times when a source’s race is irrelevant to the news item, the AP Stylebook careful approach to racial identification thus makes sense.  A criminal suspect’s immigration status should not be included in a crime news story unless it has something to do with the alleged crime.  Otherwise, such a reference is not news but simply exacerbates anti-immigrant and racist passions.  The same basic rationale holds true for reference to immigration status.  To paraphrase the AP Stylebook, an entry about immigration status could read, “consider carefully when deciding whether to identify people by [immigration status.]” “Any [immigration status] reference should be removed when the individual is apprehended or found.”

[Cross-posted from Conflict of Laws]

By William S. Dodge

Should courts in the United States refuse to recognize and enforcement Chinese court judgments on the ground that China does not provide impartial tribunals or procedures compatible with the requirements of due process of law? Last April, a New York trial court said yes in Shanghai Yongrun Investment Management Co. v. Kashi Galaxy Venture Capital Co., relying on State Department Country Reports as conclusive evidence that Chinese courts lacked judicial independence and suffered from corruption. As Professor Wenliang Zhang and I pointed out on this blog, the implications of this decision were broad. Under the trial court’s reasoning, no Chinese judgment would ever be entitled to recognition in New York or any of the other U.S. states that have adopted Uniform Acts governing foreign judgments. Moreover, U.S. judgments would become unenforceable in China because China enforces foreign judgments based on reciprocity. But on March 10, just three weeks after oral argument, New York’s Appellate Division answered that question no, reversing the trial court’s decision.

As background, it is important to note that the recognition and enforcement of foreign country judgments in the United States is generally governed by state law. Twenty-eight states and the District of Columbia have enacted the 2005 Uniform Foreign-Country Money Judgments Recognition Act. In nine additional states, its predecessor, the 1962 Uniform Foreign Money-Judgments Recognition Act, remains in effect. At the time of the trial court’s decision, the 1962 Uniform Act governed in New York, but it was superseded by the 2005 Uniform Act on June 11, 2021. Both Uniform Acts provide for the nonrecognition of a foreign judgment if “the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.”

This systemic lack of due process ground for nonrecognition comes from the U.S. Supreme Court’s 1895 decision in Hilton v. Guyot, issued at a time when lawyers routinely distinguished between civilized and uncivilized nations. It was incorporated in the 1962 Uniform Act at the height of the Cold War, and included in the 2005 Uniform Act without discussion, apparently to maintain continuity with the 1962 Act. Despite its codification for nearly sixty years, fewer than five cases have refused recognition on this ground. The leading case is Bridgeway Corp. v. Citibank, involving a Liberian judgment issued during its civil war, when the judicial system had almost completely broken down.

Shanghai Yongrun involved a business dispute between two Chinese parties, which was submitted to a court in Beijing under a choice-of-forum clause in the parties’ agreement. The defendant was represented by counsel, presented its case, and appealed unsuccessfully. Nevertheless, the New York trial court held that the Chinese judgment was not enforceable because China lacks impartial tribunals and procedures compatible with due process. The court relied “conclusively” on China Country Reports prepared by the State Department identifying problems with judicial independence and corruption in China.

In a brief order, the Appellate Division reversed. It concluded that the trial court should not have dismissed the action based on the Country Reports. These Reports did not constitute “documentary evidence” under New York’s Civil Practice Law and Rules. But more fundamentally, reliance on the Country Reports was inappropriate because they “primarily discuss the lack of judicial independence in proceedings involving politically sensitive matters” and “do not utterly refute plaintiff’s allegation that the civil law system governing this breach of contract business dispute was fair.”

On this, the Appellate Division was clearly correct. The State Department prepares Country Reports to administer provisions of the Foreign Assistance Act denying assistance to countries that consistently engage in gross violations of human rights, not to evaluate judicial systems for other purposes. See 22 U.S.C. §§ 2151n & 2304. The Reports themselves warn that they “they do not state or reach legal conclusions with respect to domestic or international law.” Moreover, if these Reports were used to determine the enforceability of foreign judgments, China would not be the only country affected. An amicus brief that I wrote and fourteen other professors of transnational litigation joined noted that State Department Country Reports expressed similar concerns about judicial independence, corruption, or both with respect to 141 other countries, including Argentina, Brazil, Italy, Japan, Mexico, South Korea, and Spain.

The Appellate Division concluded that “[t]he allegations that defendants had an opportunity to be heard, were represented by counsel, and had a right to appeal in the underlying proceeding in the People’s Republic of China (PRC) sufficiently pleaded that the basic requisites of due process were met.” By focusing on the facts of the specific case, the Appellate Division appears to have taken a case-by-case, rather than a systemic, approach to due process. Such a case-by-case approach is expressly permitted under the 2005 Uniform Act, which adds as a new ground for nonrecognition that “the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.” Such a case-specific approach avoids the overinclusiveness of denying recognition on systemic grounds when there are no defects in the judgment before the court.

The Appellate Division’s decision in Shanghai Youngrun continues the growing trend that Professor Zhang and I have noted of U.S. decisions recognizing and enforcing Chinese judgments. Just two months before this decision, in Yancheng Shanda Yuanfeng Equity Investment Partnership v. Wan, a U.S. district court in Illinois recognized and enforced a Chinese judgment in another business dispute. The court expressly rejected the New York trial court’s holding in Shanghai Yongrun, noting “the multiple federal cases … where American courts enforced Chinese court judgments and/or acknowledged the adequacy of due process in the Chinese judicial system.” One hopes that this trend will continue.

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

News outlets across the nation last week reported on a tragedy in Sacramento. On a supervised visit, a father killed three children, and a chaperone, before killing himself at a church.

Sadly, news outlets and political leaders now are trying to make immigration an issue by highlighting the fact that the father was an undocumented immigrant from Mexico. This kind of sensationalism unfortunately is nothing new and occurs regularly in high profile cases involving immigrants. One should ask the question what his immigration status had to do with the horrible crime? 

A local Sacramento news station reported that:

"The gunman who killed his three daughters, a chaperone who was supervising his visit with the children and himself in a Sacramento County church was known to have struggled with mental health issues, officials said.

New details also reveal that David Mora Rojas, 39, also used a `ghost gun' in the shooting. Mora Rojas also overstayed his visa after entering California from his native Mexico on Dec. 17, 2018, on a non-immigrant visitor visa, U.S. Immigration and Customs Enforcement spokeswoman Alethea Smock told The Associated Press."

As the local report noted, the Associated Press appears to be the source about Rojas' immigration status.

Although mental health issues, not immigration status, appears to have directly resulted in the killings, Sacramento County Sheriff Scott Jones, who is running for Congress, says U.S. immigration policies and California’s sanctuary law somehow are to blame for the deadly church shootings.

"They’ll call me racist and evil," Jones wrote in a Facebook post. "But let me be perfectly clear, there is only ONE thing that allowed this horrific tragedy to occur with certainty: the deplorable state of our national immigration policies, and California’s Sanctuary State Laws."

The killings of the young people in a church by all appearances are a tragedy. We all should think about how it happened and how such tragedies could be avoided. For example, mental health crisis services are not as well funded and accessible as they perhaps should be. Oddly, rather than focus on mental health, news agencies have been broadcasting the father's immigration status and tapping into passions for the purpose of exploitation. President Trump tapped into similar passions, for example, characterizing Mexican immigrants as "criminals" and "rapists."   

The truth of the matter is that Mora's immigration status had absolutely nothing to do with his criminal acts.

Although immigrants commit crimes, studies consistently show that immigrants commit crimes at lesser rates than native born U.S. citizens. News stories that focus on immigration status of alleged criminal perpetrators help reinforce stereotypes that immigrants are predisposed to crime, which is simply not true.  

Immigrant rights advocates do not claim that immigrants who commit crimes should not be held accountable. No one could reasonably say that the perpetrator of a crime like that which occurred in the Sacramento church -- immigrant or not -- should not face criminal charges. With the alleged perpetrator dead, that is not possible in this case. Rather than chase immigration ghosts, we should think hard about how we can act to avoid tragic deaths of young people in the future.  

[Cross-posted from Washington Post]

By Courtney G. Joslin and Douglas NeJaime

[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.

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

The big Supreme Court news yesterday was Justice Stephen Breyer's announcement of his decision to retire and that President Biden will have the opportunity to nominate a replacement. 

In my mind, one of Justice Breyer's memorable immigration opinions is his majority opinion in Zadvydas v. Davis (2001), which reasoned that the prospect of indefinite detention of a noncitizen would raise "serious" constitutional questions.  He wrote "[b]ased on our conclusion that indefinite detention of aliens...would raise serious constitutional concerns, we construe the statute to contain an implicit `reasonable time' limitation, the application of which is subject to federal-court review."  Contrary to the teachings of the plenary power doctrine, which directs the courts to defer to the immigration judgments of the President and Congress, Justice Breyer did not show special deference to the U.S. government's immigration decisions.  

As immigration scholars know, Zadvydas is in tension with the Court's subsequent decision in Demore v. Kim (2003), in which Chief Justice Rehnquist was considerably more deferential to the U.S. government's immigration detention decisions.  The dueling decisions continue to be invoked in the immigrant detention cases coming before the Court, including in a pair of cases argued earlier this month.  

In the next few weeks, the ImmigrationProf blog will offer a closer look at Justice Breyer's immigration opinions.  Stay tuned.

[Cross-posted from Los Angeles Times]

By Aaron Tang

There is a lot to dislike about the Supreme Court’s decision to invalidate the Biden administration’s requirement that workers either vaccinate against COVID-19 or test and mask at work.

The court’s party-line ruling invented limits on the Occupational Health and Safety Administration’s express authority to “protect employees” from the “grave danger” of exposure to “new hazards.” The conservative justices substituted their own judgment for the considered expertise of public health officials. And in the end, they issued a decision that, if uncorrected, will leave millions of Americans exposed to grave workplace health risks and could result in thousands of needless deaths.

Concerned Americans are right to question a court that would make such serious mistakes. The Biden administration is right to do the same. But as it does, it must not lose sight of a greater obligation: the need to respond to the ruling in whatever way legally permissible to protect American workers. Fortunately, the majority opinion in the case leaves open a surprisingly straightforward way for the administration to do just this.

Start with the actual rationale the court used to block OSHA’s vaccinate-or-mask requirement. The court did not dispute that the agency has the legal authority to protect workers from the dangers posed by the pandemic. It instead argued that OSHA swept too broadly by requiring employers to enforce what the court called a “vaccine mandate.” (In truth, OSHA’s emergency standard granted employers a choice between requiring all workers to vaccinate or requiring unvaccinated employees to undergo weekly testing and mask while at work).

The problem the conservative justices found with the so-called vaccine mandate is that it was “strikingly unlike the workplace regulations that OSHA has typically imposed.” Other workplace safety regulations, they said, protect workers while they are at work; vaccines protect workers both at work and outside it, too. The majority thus decided that OSHA’s vaccine rule was impermissible because vaccines “cannot be undone at the end of the work day.”

High quality masks, though, can be taken off after work. And rapid tests can be conducted in just minutes at the start of work or beforehand. So on the conservative majority’s own terms, OSHA would be within its power to require workers to test and mask while at work. Such a rule would fix the court’s complaint about the prior OSHA order precisely because it would be limited to the workplace dangers posed by COVID-19, without extending further. Indeed, OSHA has already enacted medical exam and face covering requirements in other work contexts, further demonstrating that a test-and-mask rule would be firmly within the agency’s authority.

Of course, some employers may balk at the notion of compelling all of their workers to test weekly and wear masks, especially employers that rightly recognize the existence of a simple, proven alternative that also powerfully reduces the virus’s spread: vaccination. So OSHA’s new emergency rule should permit employers to waive the test-and-mask-while-at-work mandate for employees who choose to get vaccinated. (Nothing would prevent the vaccinated from masking as well, which would increase their protection.)

In other words, OSHA should rewrite its rule in reverse order. Rather than requiring employers to adopt a mandatory vaccination policy with an exception for employers that instead require unvaccinated workers to test and mask, OSHA’s new regulation would make employers mandate worker testing and masking first, with an exception allowing employers to waive this rule only for the vaccinated.

You may think merely flipping the order of these requirements is too clever by half. But if it seems that way, it’s only because the court’s opinion on Thursday was itself too clever. There is, after all, nothing in relevant statutes that prohibits OSHA from protecting against workplace dangers through requirements that have the incidental effect of protecting against similar dangers outside of work too.

Indeed, reenacting OSHA’s COVID workplace safety rule as a mask-or-vax mandate would comport precisely with the conservative justices’ majority opinion. They admitted, for example, that “targeted regulations” that “account for [the] crucial distinction” between “occupational risk and risk more generally” would be “plainly permissible.” That is exactly what a rule requiring workers to mask only while at work would do.

It is possible, of course, that under a revised mask-or-vax rule, more employees would choose to test and mask while at work rather than get vaccinated. But given a choice between obtaining a vaccine and taking on the burdens of testing and daily masking, at least some would choose the former.

Most importantly, even if the rule’s ultimate effect is only to make testing and mask-wearing widespread within places of work across America, that would still represent a considerable public health advancement. Dozens of states do not currently require masks indoors despite ample evidence that masking saves lives and enjoy widespread public support. The Supreme Court may have handed U.S. workers a dangerous and legally ungrounded blow. But the Biden administration can act decisively to protect them in this crucial moment.

[Cross-posted from The Atlantic]

By Carlton Larson

On Jan. 13, a federal grand jury indicted 11 members of the so-called Oath Keepers for seditious conspiracy. Such charges are exceptionally rare—and, quite obviously, extremely serious. If convicted, these defendants could face up to 20 years in prison.

And yet many Americans think that the charges should have been even more serious: treason against the United States. Although that’s not an implausible argument, the Justice Department made the right decision. Treason prosecutions would have introduced significant legal complexity, while doing very little to increase sentences. Seditious-conspiracy charges, by contrast, are perfectly pitched to the gravity of the offenses, and given the substantial evidence laid out in the indictments, should be relatively straightforward to prove.

Seditious conspiracy is defined as “conspir[ing] to overthrow, put down, or to destroy by force the Government of the United States … or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States.” In the past 30 years, there have been only four sets of indictments for this offense. Most notably, the Justice Department successfully convicted Omar Abdel-Rahman of seditious conspiracy for his role in the 1993 World Trade Center bombing. But the most recent seditious-conspiracy prosecution—of Michigan militia members in the early 2010s—was a fiasco. A judge dismissed the seditious-conspiracy charges, finding them unsupported by the evidence.

Some have raised concerns about the scope of the seditious-conspiracy statute. For example, the University of Wisconsin law professor Joshua Braver has warned that seditious-conspiracy prosecutions could be subject to significant abuse. After all, the literal language of the statute might cover actions such as the Women’s March, which interfered with Capitol operations during Brett Kavanaugh’s confirmation hearings. Braver prefers the charge of “rebellion or insurrection,” which he believes is a better fit for the events of January 6.

I disagree. Seditious conspiracy is an entirely appropriate charge for some of the January 6 participants, as I suggested at the time. The attack was aimed at the most essential ritual of democracy—the peaceful transfer of power. The possibility that prosecutors might abuse the charge in the future is hardly a reason to shrink from it now, when it is most applicable. To be clear, seditious conspiracy is relevant for only a small subset of the people who entered the Capitol on January 6. The offense requires a conspiracy—a prior agreement to commit particular offenses; it does not encompass people who simply made impulsive decisions in the heat of the moment. According to the allegations in the indictment, the Oath Keepers plotted their moves for weeks in advance, coordinated weapons stashes outside of Washington, D.C., donned combat and tactical gear, and were in constant communication throughout the attack, all for the purpose of disrupting the certification of the 2020 election results. If this is not a seditious conspiracy, it is hard to know what is.

These alleged facts also warrant at least a consideration of treason charges. Under the Constitution, treason is limited to two offenses: levying war against the United States and “adhering to their enemies, giving them aid and comfort.” Adhering to the enemy is the more familiar type of treason. All of the 20th-century treason cases, such as the prosecution of Iva Toguri, the so-called Tokyo Rose, involved aid to a foreign enemy. By contrast, no person has been charged with levying war against the United States since the 19th century when, for example, the charge was brought against Jefferson Davis, the president of the Confederacy, at the end of the Civil War.

It was also the charge brought in the very first federal treason cases—prosecutions of tax protesters in Pennsylvania following the Whiskey Rebellion of 1794 and Fries’s Rebellion of 1799. The Whiskey rebels attacked the home of a federal tax official and assembled a large group of armed men in opposition to the federal excise tax on whiskey. The Fries’s rebels released prisoners from federal custody out of opposition to a federal property tax. In both cases, Supreme Court justices held that the alleged conduct amounted to treason. The use of force to obstruct a particular federal law, they argued, constituted levying war against the United States.

Storming the Capitol to obstruct the Electoral Count Act and sending members of Congress fleeing in terror is far more egregious—and more of a direct affront to the government—than anything done by the Whiskey rebels or the Fries’s rebels. But the understanding of “levying war” may have changed. In a famous 1851 decision involving armed opposition to enforcement of the federal Fugitive Slave Act, Justice Robert Grier suggested that levying war against the United States requires an intent to overthrow the government entirely, not just to obstruct the operation of one particular law. It was a trial-level decision, but it may prove convincing to courts today. If so, the question would then become whether the defendants sought to overthrow the government in its entirety.

Applied to January 6, this sounds like a law-school-exam hypothetical from hell. After all, the defendants would insist that, far from trying to overthrow the government, they were in fact supporting the incumbent president of the United States. If they honestly, but foolishly, believed that the election was stolen, did they have the requisite criminal intent to commit treason? Who exactly is overthrowing the “government” if one branch decides to wage war on another? Can one overthrow the government by attacking only the legislative branch? These questions are profoundly interesting from a philosophical perspective, but I fully understand why Justice Department attorneys would recoil in horror from having to debate them in court.

A further obstacle to a treason charge is far more mundane. The Constitution requires that treason convictions be supported either by two witnesses to the same overt act or a confession in open court. Although no court has ever addressed the question, videotape evidence is likely not a sufficient substitute for two witnesses; in cases arising out of World War II, for example, the Justice Department decided that radio-broadcast recordings of defendants distributing enemy propaganda were not legally sufficient for conviction. Unless the Oath Keepers begin turning on one another, finding two witnesses to distinct, overt acts may be difficult.

Given all the legal complexities the Justice Department has to consider, seditious conspiracy was clearly the right choice. In a recent speech, Attorney General Merrick Garland pledged that “the Justice Department remains committed to holding all January 6 perpetrators, at any level, accountable under law—whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” The most recent indictments are a promising step in that direction.