Guest Post

  • August 21, 2014
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law, (@atibaellis)

    In a previous post, I discussed the triumph of the Civil Rights Act of 1964. Its passage sounded the death knell of legalized white supremacy and promised an era of equal opportunity.  With the shooting of Michael Brown and the subsequent civil unrest and siege policing in Ferguson, Mo., we must recognize another reoccurrence reminiscent of fifty years ago -- protest and in response to enduring racial subjugation. 

    The Ferguson situation is about the unjustified death of a Black youth (and the fact that this happens all too often in America). This happened in the context of the reality of structural inequality in America that civil rights policy has failed to address. As I argued in that earlier post, formal equality does not go far enough to remedy the enduring legacies of white supremacy, legacies that keep repeating themselves in police violence, political underrepresentation, and minority economic stagnation. It fosters a de facto second-class society for people of color without the economic wherewithal to navigate the system. 

    This structural reality exists and replicates notwithstanding the good intentions of the law or of people who rely on formal equality as remedy. Daria Roithmayr, Ian Haney Lopez, and Michelle Alexander have provided lucid scholarly explanations of different facets of 21st century racism.  The situation in Ferguson illustrates this reality in a number of ways.

    First, the shooting of Michael Brown offers a view on the reality of the enduring abuse that people of color suffer at the hands of the police. The problems of racial profiling, the use of excessive force by police departments, and the violence suffered by Black men and boys in particular has been well documented.  To take just one source: the ACLU has written numerous accounts about racial profiling in the United States. What their work makes clear is that the police disproportionately target minorities, and particularly minority youth because of their race.  And as a recent post on their blog has made clear, such profiling, and the tragic deaths that accompany it, are all too common in the United States.  And for those minority youth that survive these encounters, they are disproportionately incarcerated. The Sentencing Project has documented not only the 500 percent increase in incarceration rates in U.S. prisons generally over the last century, but the fact that a Black male under 35 has a 1 in 10 chance of being incarcerated.

    Second, as others have noted, Ferguson is two-thirds Black and one-third white, yet its mayor and five of the six members of its city council are white. And the overwhelming majority of its police force is white. And, as The New York Times has reported, this segregated power structure is the product of a long history of racial tension. The patterns of overzealous policing and unrepresentative governance make clear that the authorities in Ferguson are out of touch with the interests of the majority of people in Ferguson. This suggests a failure of competitive politics and a resistance of the government in Ferguson to hear the interests of its people. (Even when activists in Ferguson have sought to register people to vote – presumably to encourage people to use the democratic process rather than self-help violence – this too becomes highly contested.)

  • August 20, 2014
    Guest Post

    by Robert N. Weiner, Litigation Partner, Arnold & Porter LLP

    *This post originally appeared on Balkinization

    Sometimes, lawyers are fortunate that an opponent does not get the opportunity to reply to their argument and they get the last, unchallenged, word on an issue. The Halbig case [D.C. Circuit Court panel opinion negatively impacting the federal government’s effort to help low-income persons obtain health care insurance] presents a prime example. On Monday, the plaintiffs seeking to nullify a key provision of the Affordable Care Act filed their response to the Government’s petition for rehearing en banc. The response takes full-- albeit not fair -- advantage of being the last word before the D.C. Circuit considers the petition.

    To begin with, the Halbig plaintiffs never cite Rule 35 of the Federal Rules of Appellate Procedure, even though it is the controlling authority regarding en banc review. The Rule expressly recognizes that rehearing en banc is appropriate in order to avoid intercircuit conflicts, and that provision is directly applicable hereCurrently, there is a conflict between Halbig in the D.C. Circuit, denying tax subsidies to help low income families afford insurance in states with a Federal Exchange, and King in the Fourth Circuitallowing such subsidies. A grant of en banc review by the D.C. Circuit will automatically vacate the Halbig decision ending the intercircuit conflict and presenting the full court the opportunity to avoid one altogether if the D.C. Circuit ultimately agrees with the Fourth. If there is no conflict, the Supreme Court will have no compelling reason to take this rather narrow, yet overblown issue of statutory interpretation.

    The absence of a Government opportunity to reply may also have loosened the reins on the discussion of case law in the Halbig response. Arguing against rehearing en banc, the Halbig plaintiffs cite instances where the D.C. Circuit has denied such review in important cases. But the response fails to point out that most of those cases predate the amendment of Rule 35 in 1998 expressly identifying avoidance of a circuit split as a basis for en banc review and emphasizing in the Advisory Committee Notes the particular importance of such review in cases like this one, where rehearing could resolve the conflict. D.C. decisions that came before that change in Rule 35 shed no light on whether en banc review is appropriate on this ground.

    Of the post-1998 D.C. cases cited by the Halbig plaintiffs, one involved a situation where the Supreme Court had already granted cert on the issue. The other cases cited presented no conflict. Thus, none of these cases resolves whether en banc review is appropriate here, where the D.C. Circuit’s panel opinion is the source of the intercircuit split.

  • August 15, 2014
    Guest Post

    by Sarah Bronstein, Senior Attorney, Catholic Legal Immigration Network, Inc.

    The issue of unaccompanied children arriving at the U.S. - Mexico border has been the focus of a great deal of attention recently and presents unique challenges to our immigration system and the advocates who seek to help these children. The latest figures issued by U.S. Customs and Border Protection (CBP) show thus far in fiscal year 2014 (from October 1, 2013 – July 31, 2014), 62,998 unaccompanied children have been apprehended along the southern border. This is double the number of unaccompanied children apprehended in fiscal year 2013.

    The majority of children who have been apprehended at the border are from the Northern Triangle of Central America: Honduras, El Salvador and Guatemala. These countries currently have, respectively, the first, fourth and fifth highest homicide rates in the world. Large areas of these countries are controlled by armed gangs, leaving children particularly vulnerable to violence. Children report gangs attempting to recruit them as early as age ten. These children are not just fleeing poverty; they are coming because they fear for their lives.    

    These children need support to begin to recover from the trauma they have endured. Yet advocates have raised significant concerns about the conditions in temporary shelters set up by the U.S. government. After children are apprehended by CBP, the agency must transfer custody of unaccompanied children to the Office of Refugee Resettlement (ORR), part of the Department of Health and Human Services, within 72 hours of their arrest. Since the Homeland Security Act of 2002, ORR has been the federal agency that is responsible for the care and custody of unaccompanied children. For several years, ORR has operated temporary shelters throughout the United States to house children while ORR caseworkers seek to reunify them with family members or family friends in the United States. 

    In response to the dramatic increase in numbers of children apprehended by CBP, ORR opened three large facilities housed on military bases: Joint Base San Antonio – Lackland in San Antonio, Texas; Fort Sill Army Base in Oklahoma; and Port Hueneme Naval Base in Ventura, California. ORR announced at the beginning of August that due to slightly decreasing numbers of apprehensions, it would phase out the use of these three facilities over the next eight weeks.  Advocates had raised significant concerns about the conditions in which children were held at these facilities and the difficulty in gaining access by attorneys and legal workers due to security procedures at these military facilities. There have been reports that ORR plans to open another large facility to house unaccompanied children in the El Paso, Texas area, but those are thus far unconfirmed. 

  • August 14, 2014
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University, Moritz College of Law

    Headlines often describe President Obama as “going it alone” on public policy in light of congressional inaction.  But his boldest moves in favor of workers’ rights are rooted in an obscure statute enacted 65 years ago – the Federal Property and Administrative Services Act of 1949 (FPASA).  That statute’s explicit purpose is to establish “an economical and efficient system for . . . [p]rocuring and supplying property and nonpersonal services” for the federal government.”  Most important, it specifically empowers the President to “prescribe policies and directives that the President considers necessary to carry out” FPASA’s purposes.

    In late July, President Obama issued two important orders resting directly on his FPASA authority. Executive Order 13672 adds to the prohibitions on employment discrimination by federal contractors a ban on discrimination based on “sexual orientation” or “gender identity.”  Executive Order 13673 imposes a variety of measures to insure that federal contractors comply with state and federal labor laws. It further prohibits employers with federal contracts worth $1 million or more from insisting on the mandatory arbitration of worker complaints dealing with sexual assault or harassment or with claims arising under title VII of the Civil Rights Act of 1964. Last February, the President issued Executive Order 13658, imposing a higher minimum wage requirement on federal contractors, as well.

    These orders have important precedents. President Kennedy relied on FPASA to prohibit race discrimination by federal contractors, a requirement amplified by President Johnson. President Nixon relied on FPASA to require federal contractors to engage in affirmative action to achieve equality in employment. President Carter used FPASA to impose a temporary system of wage and price controls on federal contractors. President Bush required federal contractors to inform employees of their right not to join a union. These orders have all been upheld in court.

  • August 13, 2014
    Guest Post

    by Dr. Amos Brown, NAACP National Board Member

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    In the 1950s, the winter of the civil rights movement in Mississippi, I worked alongside many brave black youth who actively fought racism and segregation, long before the press from northern communities ever arrived. Their heroic efforts and stories of courage in the face of staunch resistance in the 1950s are untold and unacknowledged.

    I organized the first youth council of the National Association for the Advancement of Colored People (NAACP) in Mississippi in the fall of 1955, after being deeply impacted by the mutilated head of Emmett Till on the cover of Jet Magazine in August of that year. At only 15 years old, I asked my mother for permission to travel with Medgar Evers from Mississippi to San Francisco to attend the National Convention of the NAACP. At this convention, I was deeply inspired by the dream shared by a 26-year old Martin Luther King Jr.. This speech, given on the Wednesday night of the Convention, got my young peers and I fired up. We all agreed to return to our respective communities and become more involved.

    In 1958, under the NAACP, what was then called a sit-down was organized in Oklahoma Cityand led by Barbara Posey, a young woman who had served as the president of the youth council and engaged youth from elementary school through high school. This lunch counter sit-down was a success in its attempt to break down segregation. After this, there were a number of other successful youth led sit-downs around the country,  in cities such as Wichita and Louisville.