Guest Post

  • 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.

  • August 8, 2014
    Guest Post

    by Raha Wala, Senior Counsel, Defense & Intelligence, Human Rights First

    Last week President Obama admitted what most people have long known—that, in the president’s words, “we tortured some folks” after 9/11 in a bid to thwart future terrorist plots.  The president was referring to a soon-to-be released report by the Senate Select Committee on Intelligence (SSCI) that documents the CIA’s use of torture and cruel, inhuman, or degrading treatment at secret “black sites” around the world in the wake of the 9/11 attacks. But the CIA has resisted and even undermined oversight on this critical issue from the beginning. And now current and former CIA leaders appear poised to mount a “counterattack” to undermine the report’s key findings and defend the so-called “enhanced interrogation” program. President Obama can’t let that happen.  He should direct members of his administration, including CIA Director Brennan, to get in line with the anti-torture policy he laid out when he—as one of his first official acts as president—signed an Executive Order shuttering the CIA black sites and banning torture and other forms of cruel treatment. 

    The SSCI report is the result of a five-year inquiry into the CIA rendition, detention and interrogation program; it began when the committee discovered that the CIA had disregarded warnings from the White House and destroyed videotapes of waterboarding and other brutal torture sessions. The report—a voluminous account, at 6,700 pages—is based on a review of more than 6 million pages of official documents, and is said to conclude that interrogations in the CIA program were much more widespread and brutal than previously known, and much less effective at gathering intelligence to stop terrorist plots than proponents of so-called “enhanced interrogation” claim. The report will show, for example, how the interrogation program played no meaningful role in gathering intelligence to help discover Osama Bin Laden’s whereabouts. It is also said to document how the CIA systematically misled Congress, the Department of Justice, and the White House about the effectiveness of the program. Senator Dianne Feinstein, Chair of the SSCI, has called the investigation into the CIA’s use of torture one of the most significant in the history of the United States Senate, and the most important oversight activity ever conducted by the SSCI. The executive summary, findings and conclusions of the SSCI report—about 600 pages of material—are set to be released in the coming weeks.

  • August 8, 2014
    Guest Post

    by Nicholas Bagley. Bagley is an Assistant Professor at University of Michigan Law School. 

    *This post originally appeared on The Incidental Economist. 

    Now that the government has asked the full D.C. Circuit to rehear Halbigsome commentators have suggested that it’s an inappropriate candidate for en banc review. A Wall Street Journal op-ed from a lawyer representing a right-wing health-care think tank, for example, says that en banc review ought to be reserved for “cases raising serious constitutional issues.” Halbig, though, is just a “straightforward statutory interpretation case.”

    This is wrong for so, so many reasons. Under the Federal Rules of Appellate Procedure, a case can be taken en banc if it involves “a question of exceptional importance.” The rule does not say “a constitutional question of exceptional importance.” No judge, to my knowledge, has ever suggested that the rule be read so narrowly.

    To the contrary, the rules are drafted in open-ended terms—“exceptional importance”—because cases differ in their importance along many different dimensions. Some cases are trivial in themselves but present novel legal questions that will affect hundreds of other cases. Others are of “exceptional importance” because they implicate questions of faith or principle.