ACSBlog

  • May 23, 2016
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law- University Park.

    On May 19, 2016, Judge Andrew Hanen issued an unusual 28-page order scolding the Department of Justice for making statements that in the view of Judge Hanen were misleading. The order alleges that Department of Justice attorneys deceived the court about its activity surrounding two deferred action programs announced by President Obama on Nov. 20, 2014. Deferred action is one form of prosecutorial discretion in immigration law that temporarily protects the government’s lowest priorities from deportation. The 2014 deferred action programs would modify the 2012 Deferred Action for Childhood Arrivals (DACA) program and establish a similar program known as Deferred Action for Parents of Americans and Lawful Permanent Residents for qualifying parents who lack a formal legal status. The allegation by Judge Hanen is that the government erroneously granted DACA renewal applications for three years pursuant to the 2014 Directive (DACA +) as opposed to the two-year period contemplated under 2012 DACA.

    Much of the press coverage on Judge Hanen’s May 19 order has focused on the order’s scolding. But equally, if not more alarming, are the implications of Judge Hanen’s demand on the Department of Justice to provide a list of individuals granted DACA under the 2014 directive. According to the order: “This list should include all personal identifiers and locators names, addresses, “A” file numbers and all available contact information, together with the date the three-year renewal of approval was granted.” If the order has a legal effect, unleashing a list of names and A-numbers raises privacy concerns and has the potential to instill greater fear in a community that is already vulnerable to the delay caused by the Texas litigation and announcements by the government to use raids as a tool to detain and deport adults and children who purportedly fall within its enforcement priorities. Judge Hanen has also ordered “any attorney employed at the Justice Department in D.C. who appears, or seeks to appear in a court (state of federal) in any of the 26 Plaintiff states annually attend a legal ethics course”, believing himself that Justice attorneys have failed to comply with their ethical duties during the course of the Texas litigation.

    A real conversation about the ethics of the Texas litigation should cover the distortions made by the Plaintiff states and lower courts around the history and legal foundation to implement the 2014 deferred action programs. The 123-page opinion issued by the district court on Feb. 16, 2015 and authored by Judge Hanen contained misrepresentations about immigration law and policy, some of which were memorialized in a letter signed by 104 scholars and teachers of immigration law who identified the opinion as “deeply flawed.” As one example, the letter criticizes the district court’s characterization of deferred action as lacking statutory authority and beyond the scope of prosecutorial discretion – despite the ample authority held by the Department of Homeland Security to operate a deferred action program. Subsequent to the district court opinion, oral arguments were heard by a three-judge panel at the Fifth Circuit Court of Appeals and again displayed great confusion around the terms lawful presence, deferred action, and employment authorization to name a few. As I described earlier:

  • May 23, 2016
    Guest Post

    by Madeline Gomez and Julia Quinn. Ms. Gomez is the LSRJ Reproductive Justice Fellow at the National Latina Institute for Reproductive Health. Ms. Quinn is the LSRJ Reproductive Justice Fellow at the National Health Law Program.                

    “Women have their own equal dignity.”

    So said Justice Anthony Kennedy last year in Obergefell v. Hodges, the Supreme Court decision that codified marriage equality. This pronouncement was part of a broad majority ruling that opined on personal decision-making in moving, sometimes even flowery prose. Yet this week, the Court declined to take the opportunity to affirm that women’s dignity includes the right to access contraceptive coverage regardless of their employer’s religious beliefs. Instead, in their Zubik v. Burwell per curiam opinion, the justices sent the case back to the lower courts for further review. Some have speculated that Justice Kennedy’s reluctance to side with employees motivated this procedural move. It was disappointing to those hoping the Obergefell decision signaled an understanding on the Justice’s part of the importance of self-determination to equality, including for women. But all hope is not yet lost. In the abortion rights case Whole Woman’s Health v. Hellerstedt, the Court’s “swing” voter has a second chance to prove that women’s dignity has power beyond rhetorical flourish.

    Kennedy’s majority opinion in Obergefell relied on what Harvard Law professor Laurence Tribe called “a tightly wound . . . double helix” of two principles rooted in the Fourteenth Amendment: Equal Protection and Due Process. Relying on Kennedy’s own words, Professor Tribe dubbed the doctrine “equal dignity.” Kenji Yoshino of NYU School of Law called it an “antisubordination liberty” because, he argued, the analysis looks to the impact that denying the liberty in question has on the relevant subordinated group. Thus, the Constitution demands the recognition and extension of the marriage right to same-sex couples not only for equality reasons, but also because doing so redresses some of the discrimination experienced by lesbian women and gay men.

    Obergefell’s reliance upon dignity as a fundamental constitutional principle related to questions of intimacy and equality was not novel. Nearly 25 years ago it was at the heart of Planned Parenthood v. Casey, a decision authored in part by Justice Kennedy. There, using language Obergefell would later echo, the Court declared personal dignity and autonomy “central” to constitutional conceptions of liberty ‒ including reproductive rights.

  • May 23, 2016
    BookTalk
    Hurrah for Liberals
    How progressives defeated conservatives to create democracy, human rights, and safe modern life
    By: 
    James A. Haught

    by James A. Haught, editor emeritus, The Charleston Gazette-Mail. This essay is drawn from his latest book, Hurrah for Liberals.

    In the chaotic presidential campaign, the remarkable popularity of Democratic Socialist Bernie Sanders spotlights a large, not-always-recognized vein of liberal political sympathy in America. Suddenly, the L-word is popular again ― not an embarrassment to be avoided. That’s great, I think, because progressives have been the driving force behind most social improvements in western civilization.

    Look at the historical record: In the three centuries since the Enlightenment, democracy, human rights, personal liberties and family wellbeing have blossomed. Life gradually became more decent and humane. Virtually all the advances were won by reform-minded liberals who defeated conservatives defending former hierarchies, privileges and inequalities.

    Conservatives tried to retain slavery, but they lost.

    They tried to block voting by women, but lost.

    They tried to prevent couples from using birth control, but lost.

    They tried to obstruct Social Security pensions for oldsters and the disabled, but lost.

    They tried to outlaw labor unions, but lost.

    They supported government-led prayer in school, but lost.

    They tried to continue throwing gays in prison, but lost.

    They tried to defeat Medicare and Medicaid, but lost.

    They fought against racial equality and tried to outlaw interracial marriage, but lost.

    They tried to censor sexy magazines, books and movies, but lost.

    They tried to halt same-sex marriage, but lost.

  • May 23, 2016

    by Jim Thompson

    The Oklahoma Department of Corrections breached protocol multiple times during recent attempts to execute inmates according to a report released Thursday by a grand jury tasked with investigating the department, says Kim Bellware at Huffington Post.

    At MSNBC, Zachary Roth praises Oregon’s automatic voter registration law, which “has particularly helped groups that have traditionally been alienated from the process, including the young and racial minorities.”

    The Supreme Court on Monday voted unanimously to uphold a lower court decision that says Virginia’s congressional districting map unconstitutionally packs black voters into certain districts, reports the Associated Press

  • May 20, 2016
    Guest Post

    by Herman N. (Rusty) Johnson, Jr., Associate Professor of Law, Samford University Cumberland School of Law

    May 18, 2016, is a momentous day for U.S. workers. The U.S. Department of Labor released new overtime rules that restore the New Deal-era promise of the Fair Labor Standards Act (FLSA) by increasing the salary level required to exempt certain employees from overtime pay. The new rules will be a boon for working and middle class Americans, as it will increase their pay, provide them more time to spend with their families, lead to improvements in health and productivity, and create jobs.

    The FLSA, originally enacted in 1938, assures overtime premium pay of time-and-a-half for employees who work more than 40 hours per week. However, the FLSA exempts some types of employees from the overtime protection, in particular white collar workers classified as executive, administrative, professional, outside sales, and computer employees. Congress delegated authority to the Secretary of Labor to define the exemptions, and generally, employers must satisfy three requirements to properly classify employees as exempt pursuant to a white collar category: 1) the employees must be paid a fixed salary, 2) the employees must be paid at least a specific salary amount, and 3) the employees’ primary duties must involve one of the enumerated exemptions.

    Currently, the DOL’s regulations set the salary level at $455 per week, which is $23,660 on an annual basis. The rigors of inflation and inattention have eroded the FLSA’s overtime protection at this level. The designated amount is less than the poverty line for a family of four and only 1.6 times the federal minimum wage of $7.25. Furthermore, at present, a mere seven percent of salaried workers receive overtime protection, whereas 62 percent did so in 1975.

    The new DOL regulations increase the salary level required to trigger the white collar exemptions. The revised rule, which takes effect December 1 of this year, sets the salary level at $913 per week, or $47,476 annually, which equates to the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census region (currently the South). The new rule also creates an updating mechanism which benchmarks the salary level every three years to the same metric.