Guest Post

  • November 25, 2015
    Guest Post

    by Anita Sinha, Practitioner-in-Residence, Immigrant Justice Clinic, American University Washington College of Law

    Since the horrific Paris attacks that killed 130 people the night of November 13, more than half of all U.S. governors have made declarations limiting or denying Syrian refugee resettlement in their states. Many of us who practice and teach immigration and refugee law, myself included, thought these statements were political grandstanding that would not be put into action – because they could not. Our certitude was based on the U.S. Constitution, federal anti-discrimination laws, and international humanitarian law. Also critical is the fact that immigration regulation and enforcement is a federal, not state, matter – a principle recently affirmed by the Supreme Court in its Arizona v. United States decision. The power to vet and admit refugees specifically is squarely in the hands of the federal government.

    Then one of the governors, Indiana’s Mike Pence, actually barred from his state a family who had just landed in the U.S. before he declared the state’s suspension of Syrian refugee resettlement. That family was eventually taken in by Connecticut. But according to a lawsuit against Governor Pence filed this week by the American Civil Liberties Union, 19 additional Syrian refugees are expected to resettle in Indiana over the next few weeks or months. It may be only a matter of time before one or more of the other 25 states start turning away Syrian families. And so these state-by-state refugee rules may not be simply rhetorical. They are, however, still contrary to what Professor Steve Vladeck calls laws that are “both well settled and well conceived on the relative roles of the state and federal government when it comes to refugee crisis.” And there are compelling reasons to stick to these roles.

  • November 25, 2015
    Guest Post

    by B. Jessie Hill, Judge Ben C. Green Professor of Law, Case Western Reserve University School of Law

    What is at stake for reproductive rights in Whole Woman’s Health v. Cole, which will be heard by the U.S. Supreme Court this Term? In a word, everything. Whole Woman’s Health may well be the most significant abortion case in 24 years.

    The Supreme Court established the “undue burden” standard for evaluating the constitutionality of abortion restrictions in 1992 in Planned Parenthood v. Casey. The vagueness of that standard, combined with the Court’s apparent willingness to uphold numerous restrictions in that case, opened the door for states to continually pass new and ever more restrictive regulations on abortion in the decades since Casey was decided. Meanwhile, the Supreme Court has largely declined to speak further on the meaning or scope of the undue burden standard.

    What’s more, states began to try a new kind of restriction – restrictions adopted in the name of protecting women’s health but really aimed at reducing access to abortion. These differed from the sorts of restrictions at issue in Casey, which were primarily laws aimed at affecting the woman’s decision making process, such as waiting periods, parental consent requirements, and informed-consent requirements. Casey was relatively deferential toward measures intended to ensure the woman’s choice was fully informed, but it did not have occasion to consider the sort of pretextual health regulations at issue in Whole Woman’s Health.

    In Whole Woman’s Health, the Court will decide the constitutionality of a Texas law that imposes onerous requirements on abortion providers—namely, that doctors providing abortions have admitting privileges at a local hospital and that abortion clinics conform to the requirements for “ambulatory surgical centers,” including requirements pertaining to the physical plant, staffing, parking, and the like. These requirements are often impossible for older clinics to meet without spending enormous sums of money. Although other types of ambulatory surgery centers—clinics that provide minor surgery on an outpatient basis—are generally offered waivers or grandfathered from when new regulations are instituted, abortion providers are specifically denied grandfathering and waivers.

  • November 24, 2015
    Guest Post

    by J. Chris Sanders, Attorney, Chris Sanders Law PLLC

    Two things I’m not going to say in this brief post. First, I’m not going to explain the Citizens United decision. Ever since the Supreme Court spoke in 2010, there’s been plenty of explanation. More than explanation, there are a number of campaigns to reverse the decision, to pass a constitutional amendment overturning it, and/or to blunt its worst effects. Those campaigns do a complete and admirable job of explaining the decision, its ramifications, and the fix that we’re in. But just to keep us on the same page, here’s my two cents. I keep it short: “the Supreme Court perverted Freedom of Speech into legalized corruption by promoting unlimited campaign cash in our elections.”

    We know what the problem is. The question for this post is what to name the problem, or rather, what not to name the problem. We just have to stop saying, “we hate Citizens United.” Or “end citizens united.” Or “citizens united is bad for democracy.” I’m sorry to step on friends’ toes, but I’m concerned. Standing alone, without backstory about the decision, “we’re against citizens united” is counterintuitive. Unless the hearer knows that “citizens united” means the Supreme Court legalized giant money’s control over our politics, it makes no sense.

    You can almost see the baffled stares and hear the snide rhetorical questions in the media. “Why are progressives against united citizens?” We aren’t- we are the united citizens! Not them- they’re organized and united money, remember? The organization “Citizens United” was just a multi-million-dollar “nonprofit” masquerading as a movement. It’s Orwellian to get people to believe that organized money is really united citizens, but that’s exactly what CU was trying to do.

  • November 20, 2015
    Guest Post

    by Leticia M. Saucedo, Professor of Law and Director of Clinical Legal Education, UC Davis School of Law

    One year ago today, President Obama announced his administration’s executive actions on immigration. Known as the DAPA Memo, the announcement described executive actions that would have exercised prosecutorial discretion not to deport millions. Since then, a district court in Texas has stalled its implementation with an injunction, claiming that the executive branch overstepped its authority by offering deferred action to millions of undocumented persons. Most recently in Texas v. United States, the U.S. Court of Appeals for the Fifth Circuit agreed, noting that the executive actions were outside of any authority delegated by Congress. The Fifth Circuit denied the federal government’s petition to stay the federal district court’s injunction, characterizing the administration’s actions as proposing to confer deferred action and then employment authorization categorically to millions in violation of the Administrative Procedure Act. The court got it backward in its analysis.

    The Court of Appeals premised its analysis on the notion that because the government was outside its authority to grant deferred action, it was also outside its authority to grant employment authorization. Here is where the Court of Appeals got it wrong. As the government argued and the dissent in the appellate decision concluded, it is the agency’s authority to regulate worksite immigration enforcement that allows it to also grant deferred action on a category of individuals for its convenience.

    The employer sanctions provisions of the Immigration Reform and Control Act (IRCA) –which established the parameters of employment authorization – expressly grant wide latitude to the agency, and Congress specifically intended to provide the agency with this broad authority. When Congress first set up employer sanctions and a worksite immigration enforcement scheme in IRCA, it made the explicit decision to give the executive branch the authority and discretion to provide employment authorization to certain classes of noncitizens. INA § 274A(h)(3) defines an “unauthorized alien” for employment purposes:

    As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General. (emphasis added).

  • November 19, 2015
    Guest Post

    by Chris Edelson, assistant professor of government, American University’s School of Public Affairs. He is author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror (University of Wisconsin Press, 2013). His second book, Power Without Constraint: The Post 9/11 Presidency and National Security will be published in spring 2016 by the University of Wisconsin Press.

    The terrorist attacks in Paris leave us all horrified – as do the attacks in Lebanon last week that have received less public attention worldwide. Terrorism is meant to make people afraid, and it does its job. Part of what we must do in responding to these attacks is to manage our fear and prevent it from ruling us or pushing us (or our elected officials) to make bad decisions.

    No one (except the terrorists themselves) wants to see another attack against civilians. Some elected officials and candidates for office, however, have made counterproductive statements following the Paris attacks. Sen. Ted Cruz (R-Texas) declares the U.S. should only accept Syrian refugees who are Christian, arguing that “[t]here is no meaningful risk of Christians committing acts of terror.” Jeb Bush similarly suggested that the U.S. should focus “on the Christians who have no place in Syria any more.” Bush also described the Paris attacks as “an organized attempt to destroy Western civilization.” Sen. Marco Rubio (R-Fla.) similarly described what is happening as “a clash of civilizations.” Republican presidential candidates criticized Hillary Clinton and other Democratic presidential candidates for declining to use the words “radical Islam” when discussing the fight against ISIS. Donald Trump suggested (not for the first time) that it may be necessary to consider closing some mosques in the United States (though he said he is not personally considering this – yet).

    These candidates surely want to find a way to take meaningful action to keep Americans and others safe from ISIS. (Though Sen. Cruz leveled the very troubling and baseless charge that President Obama “does not wish to defend this country.”) But many are making a serious mistake by speaking about ISIS and terrorism in ways that draw religious lines between Christians and Muslims. This is not a matter of “political correctness,” it is a matter of logic, fact and reason. Of course ISIS is Islamic. But ISIS practices a form of Islam that the vast majority of Muslims reject. In fact, ISIS has terrorized and killed many Muslims it sees as apostates. It may well serve ISIS’s purposes to describe its terrorist acts as part of a religious war: After the Paris attacks, ISIS referred to France as “the carrier of the banner of the Cross in Europe” and a leader of “the convoy of the Crusader campaign [i.e. the military campaign against ISIS in Iraq and Syria].”