ACSBlog

  • November 22, 2016
    Guest Post

    by Olivia N. Sedwick

    On Nov. 7, 2016, the ACS Student Chapter at Howard University School of Law hosted a “community conversation” aptly titled “Depending on Tomorrow: The Future of the Supreme Court.”  Our discussion featured two notable attorneys from Skadden, Arps, Meagher & Flom, LLP: Greg Craig and ACS Board Member Cliff Sloan. The panelists have a great deal of experience including having served two Presidents and arguing before the Supreme Court. With such experience, the conversation was well informed about the expectations and attendant implications that would possibly accompany the next presidential administration.

    Much of the conversation focused on the realistic expectations and attendant implications that would come with another Clinton presidency. In that vein, we discussed how a Clinton Supreme Court nomination could even out—not necessarily drastically shift—the dynamic of the Court and what important past and upcoming decisions hung in the balance as a result. As Howard Law students, we are always focused on the greater societal implications on equality, justice and fairness. Naturally, we discussed Citizens United, Shelby Cty. v. Holder, the Affordable Care Act and immigration concerns. Likewise, we also discussed the sore-spot that is the 1994 Crime Bill—how and why it was so bad and how another Clinton presidency could possibly remedy it.  Those of us in the room knew that many of these decisions—and with them our very livelihoods—lay in wait until the next day, tomorrow.

    It is for this reason why I believe that the program was so salient and timely because, for the first time in many of our lives, one day meant to live freely or in fear, to live or to die. While such a statement might be hyperbolic for some, for many anything short of a Clinton administration could mean precisely that. It could mean the likelihood of deportation would increase, more than just a little bit. It could means that affordable access to treatments, in many respects, would became slightly unaffordable. Unfortunately, the day after the election became the day that many of us would have to begin to live in fear. It means that hindrances to the ballot box could possibly be resurrected simply because necessary changes that would restore optimal strength to the Voting Rights Act of 1965 would likely be halted even further.   

  • November 22, 2016
    Guest Post

    *This post was originally published on The Huffington Post.

    by Christopher Kang, ACS Board Member and National Director of the National Council of Asian Pacific Americans

    President-elect Trump announced that he plans to nominate Senator Jeff Sessions to be Attorney General, and for those who have concerns—or outright opposition—to this pick, recent headlines have been daunting: “Sessions looks like a lock for confirmation.” “Senate Democrats Can’t Stop Sessions, So How Much Will They Fight?

    To some extent, I understand this analysis: Senate Democrats cannot stop this nomination unless Republicans join them, and based on the public statements of support so far, that doesn’t seem likely.

    Then again, I imagine this was also the analysis in 1986, when a Republican-controlled Senate considered Sessions’ nomination to the district court—before the Senate Judiciary Committee held two sets of hearings. Before Senator Howell Heflin (also of Alabama) withdrew his support, stating “fairness and impartiality go to the very heart of our justice system...as long as I have reasonable doubts, my conscience is not clear, and I must vote no.” Before two Republicans joined every Democrat on the Judiciary Committee in opposing his nomination. Before the Judiciary Committee rejected a lower court nomination for the first time in nearly half a century.

    What happened in 1986 could happen again today: Senators could diligently review the record and vote their conscience.

  • November 21, 2016
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar, Clinical Professor of Law and Director of the Center for Immigrants' Rights at Penn State Law

    In the wake of the election, immigration has been a centerpiece. Immigration attorneys and advocates have worked around the clock speaking to clients about how best to proceed in their cases and to the immigrant community and beyond about the rule of law. The fear and uncertainty sweeping immigrant communities are propelled by an anti-immigrant agenda by President-elect Donald Trump and his transition team. Specifically, proposals to end the Deferred Action for Childhood Arrivals (DACA) program; deport two to three million “criminal aliens”; and subject certain individuals to a “Muslim registry” have caused immediate and specific concern and also confusion between rhetoric and reality.

    DACA is a program implemented by President Obama in 2012 that enables noncitizens without status to apply for a form of prosecutorial discretion called “deferred action” if they entered the United States before the age of 16, are currently in school, have resided continuously since June 15, 2007 and meet other program requirements. Since the program started, more than 700,000 people have received DACA and employment authorization pursuant to their deferred action status- thousands more have had their DACA status “renewed”. Whether the President-elect will revoke DACA and work permits from DACA holders remains to be seen, but the concerns are real and have furthermore heightened the risks for prospective applicants and applications for renewal which may be pending through inauguration day. Current and would-be recipients of DACA represent the lowest priorities and should not be targeted by any Administration.

  • November 18, 2016

    by Katie O’Connor

    This year, for the second time in sixteen years, the winner of the national popular vote tally will not be the winner of the Electoral College vote and will not, consequently, be the next president of our country. In other words, this year, for the second time in sixteen years, the candidate who received the most votes from American voters will not win the election. This can and does happen, of course, because of the Electoral College system.

    There are many proffered explanations for why the Electoral College was created and maintained and none of them are particularly flattering to our democracy. The racist roots of the Electoral College are obvious. At the time our constitution was created, representatives to the U.S. House of Representatives were apportioned based on the three-fifths compromise, which counted each slave as three-fifths of a person for purposes of apportionment. This allowed for increased representation in southern slave states even though slaves could not vote. Subsequently, each state was given a number of electors to the Electoral College equivalent to the state’s two senators plus its number of representatives, furthering the skewed representation by slave states.

    Though it may not have been the reason the Electoral College was created, it soon became equally obvious that the institution furthered a sexist agenda as well. In a direct national popular vote system, a state could double its potential influence in an election by extending the franchise to women. With the Electoral College, though, a state would have the same influence regardless of how many people voted. Thus, the Electoral College disincentivized expanding the franchise and allowed for the continued disfranchisement of women with impunity.

  • November 14, 2016
    Guest Post

    by Arthur Bryant, Chairman, Public Justice

    While everyone waits to see how the election changes the Supreme Court, one thing is clear: workers’ rights hang in the balance. The Court is soon going to have to decide whether employers can use mandatory arbitration clauses in employment contracts to ban—and eliminate—workers’ collective and class actions.

    Four cases now up for review raise that question. All involve employees claiming they were cheated out of overtime pay—and employers arguing they cannot be sued because mandatory arbitration clauses in their employment agreements prohibit collective and class actions.

    Two federal circuits held employers can ban those actions. Two ruled they cannot. If the Court does not review any of these decisions, more are on the way. Suits raising the question are pending in five more federal courts of appeal.

    The four cases now before the Court show the arguments and the issues.

    In National Labor Relations Board v. Murphy Oil USA, Inc., the NLRB says the Fifth Circuit made an enormous mistake when it held the employer could use its mandatory arbitration clause to bar all workers at over 1,000 stores in 21 states from pursuing collective actions against it under the Fair Labor Standards Act and class actions in federal and state court. The clause says each worker has to proceed individually and alone.

    The NLRB insists that violates section 7 of the National Labor Relations Act, which gives employees “the right to…engage in…concerted activities for the purpose of…mutual aid and protection.” The Supreme Court previously said these “concerted activities” include actions pursued in “administrative and judicial forums.” Because the NLRB is charged with enforcing America’s labor laws, its interpretation is entitled to substantial deference. That interpretation stresses the importance of what is at stake: “the right to engage in collective action – including collective legal action – is the core substantive statutory right protected by the NLRA and the foundation on which the Act and Federal labor policy rest.”