• November 12, 2015
    Lion of the Senate
    When Ted Kennedy Rallied the Democrats in a GOP Congress
    Nick Littlefield and David Nexon

    by Nick Littlefield and David Nexon

    The just-published Lion of the Senate offers an insider’s view of several remarkable years when Senator Edward Kennedy fought to preserve the Democratic mission against Newt Gingrich’s Contract with America and a Republican majority in both houses. He not only prevailed; he was able to pass important progressive legislation even in that highly partisan, bitterly divided Congress. That story has special resonance today as a resurgent Republican right once again controls Congress and as the policy gridlock seems hopeless.   

    Nick and I were both senior policy advisors to the Senator during the period the book covers—roughly1995-1997. Nick was Senator Kennedy’s staff director on the Labor and Human Resources Committee (now the HELP Committee) and I was head of the senator’s health policy staff.  Lion of the Senate is the story of Kennedy at the height of his powers waging the fight of his life against then Speaker of the House Newt Gingrich and the conservative movement he led. The 1995-1996 Republican House and Senate with Bill Clinton in the White House mirror the fraught circumstances on Capitol Hill today, as President Obama and the Democrats in Congress face an equally determined Republican majority seeking to enact essentially the same agenda that Kennedy defeated in the 1995-1996. In a striking parallel, today’s Republicans, like those of the Gingrich era, have used the threat of a government shutdown and even loan default to achieve their goals. What the Senator accomplished and how he did it is both an exciting narrative and a blueprint for today’s Democrats.

    In addition to its contemporary relevance, The Lion of the Senate is, I think, a book that many in the ACS community will enjoy because of their interest in politics and their long alliance with Senator Kennedy on so many issues. Told from Nick’s point of view, it is a close-up account of how Kennedy rallied the Democrats to resist and ultimately defeat the Gingrich agenda and broke through the partisan gridlock to pass a minimum wage increase, important health insurance regulatory reform, and the Child Health Insurance Program (CHIP). The book reveals why Kennedy was such a towering figure as a politician and a legislator, what it was like to be a Senate staffer working for him, and provides a vivid picture of how the Senate operates. 

  • November 12, 2015
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of Boston Police Department

    One perspective on the U.S. Supreme Court’s November 9 decision in Mullenix v. Luna that might reify the issue for those not familiar with the netherworld of policing should perhaps come from one longtime police officer not always standing on the “right” side of the “thin blue line.” I am not an attorney, but a former police officer turned academic, and I know a bad shooting when I see one. The 2010 killing of Israel Leija Jr. by Texas Department of Public Safety (DPS) Trooper Chadrin Mullenix was just such a bad shooting and should never have happened. Mullenix’s use of deadly force in shooting Leija, using a rifle and firing six shots from a distance of 25-30 yards, was deemed “reasonable” by the Court, who granted Mullenix “qualified immunity,” thus shielding him from civil liability in Leija’s death.

    This is once again a situation where circumstances brought about in large part by police actions, while legal, led to the needless death of a young man of color. Leija, who was known by the police and who had an outstanding warrant for a probation violation, fled from the police in his car when they approached him to place him under arrest. The police gave pursuit and engaged in a high-speed chase at speeds of up to 110 miles per hour, for a probation violation by an individual known to them.  They knew who he was and where he lived, so my decades of police experience cause me to question: Why are you chasing this guy and endangering the public (and yourselves)? This is not a dangerous and violent fleeing felon (or at least he wasn’t until the police began chasing him). This in no way justifies or absolves the clear wrongdoing on the part of Leija, but it is ultimately fair to question the wisdom of the police participation in this high-speed chase. Any police supervisor I know would have ordered the almost immediate termination of this reckless and unnecessary pursuit.

    As for the shooting, Justice Sotomayer, in her insightful and convincing dissent, noted: “Mullenix had no training in shooting to disable a moving vehicle and had never seen the tactic done before” (that’s because the “tactic” doesn’t exist). She further wrote: “He also lacked permission to take the shots” (in fact he was ordered not to by his supervisor). The officers who initiated the pursuit had devised a strategy to deploy “spike strips” to disable Leija’s vehicle and to terminate the pursuit; they had set the strips at three separate locations and taken nearby cover, all in compliance with their tactical training. Mullenix believed that he knew better and that he would not wait the literally three-quarters of one second it would have taken to see if the spike strips were successful in immobilizing Leija’s vehicle before he opened fire, missing his “intended target” (the vehicle’s engine block), and killing Leija. 

  • November 12, 2015

    by Jim Thompson

    In The New York Times, Gregory B. Craig and Cliff Sloan argue that President Obama does not need Congress’s permission to close the Guantanamo Bay detention facility.

    At The Intercept, Jordan Smith and Micah Lee report on a major breach of security at Securus Technologies that resulted in the leak of over 70 million prison phone call records. David Fathi, director of the ACLU’s National Prison Project, contends that “this may be the most massive breach of the attorney-client privilege in modern U.S. history.”

    On Tuesday, Supreme Court justices expressed skepticism towards Tyson Foods, Inc.’s challenge to a nearly $5.8 million class action suit, writes Lawrence Hurley in Reuters. ACS Board Member David Frederick is representing the plaintiffs in the case.

    Nkechi Taifa will receive the 2015 Cornelius R. “Neil” Alexander Humanitarian Award from the D.C. Commission on Human Rights at the 5th Annual Commission on Human Rights Awards on Dec. 9.

  • November 11, 2015
    Guest Post

    by Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Clinical Professor of Law, Penn State Law; author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015)

    Last November 20, 2014, President Obama announced a series of executive actions on immigration, which contained two specific programs to focus deportation resources. The first was for young people and extended “Deferred Action for Childhood Arrivals” 2 to 3 years, among other changes. The second created a new guideline called “Deferred Action for Parents of Americans and Legal Residents” for qualifying parents who have resided in the United States for at least five years. Deferred action is a form of prosecutorial discretion in immigration law which in turn, is associated with the government’s decision to refrain from bringing enforcement actions against individuals for humanitarian and resource reasons. This type of discretion has existed in immigration law for decades and is not only grounded in the immigration statute and other laws but is also inevitable in light of the limited resources the Department of Homeland Security holds to enforce these laws. The recent deferred action programs have been on hold because of litigation brought by the state of Texas and 25 states challenging the legal authority of the president’s actions.

    On November 9, 2015, a majority panel at the Fifth Circuit Court of Appeals concluded ruled against the Administration, and went even further than the lower district court by concluding that even if the Deferred Action for Parents of Americans and Legal Residents (DAPA) program followed the procedural requirements, the DAPA memorandum is nonetheless contrary to the Immigration and Nationality Act and substantively violates the Administrative Procedure Act. The following day, the Department of Justice issued a statement confirming that it would appeal the decision to the U.S. Supreme Court. The Fifth Circuit’s decision was predictable in light of the panel composition (two conservative judges who previously ruled against the Administration when it filed an appeal to an emergency stay with the Fifth Circuit on the same case). Of note, Judge Carolyn King issued a sharp dissent that ran as many pages as the majority opinion and agreed with the legal foundation advanced by the Department of Justice, more than 130 law professors, and scores local government officials (including the Mayor of my own hometown State College).  Possibly, the case will be heard by the Supreme Court in summer 2016, and pave the way for the Department of Homeland Security to implement the deferred action programs now on hold before the presidential election.

  • November 11, 2015
    Guest Post

    by Adam Klein and Nantiya Ruan. Klein is a partner of Outten & Golden and Ruan is Of Counsel at Outten & Golden.

    Most veterans, like most Americans, believe that our Constitution’s Seventh Amendment protects their right to a jury trial in federal court when employers break the law.  Veterans returning to their jobs after service are in particular need of protection, as recognized by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which protects veterans’ reemployment rights and right to be free from discrimination because of their military service.  Yet, because so many employers mandate arbitration, having a court or jury hear employees’ claims is increasingly unavailable. 

    Forced arbitration agreements in employment relationships have garnered needed attention in recent years, most recently by the in-depth reporting of The New York Times this month. Despite extensive lobbying and media attention, forced arbitration is growing.  In 2014, 66 percent of U.S. companies had some form of arbitration clause for employees, customers, or both.[1]   Forced arbitration occurs when an employer conditions initial employment, continued employment, or receipt of employment benefits, including severance benefits, on the employee’s “agreement” to privately arbitrate all future claims against the employer.  Under employment arbitration, parties go before a privately hired arbitrator, usually a retired judge or attorney, who listens to evidence and issues a decision without a viable avenue for appeal. 

    Arbitration as a private system for handling disputes is too often an uneven playing field for employees: arbitration can be prohibitively expensive; agreements typically bar employees from bringing their claims as a group in a class action, which is the only way for many employees to challenge well-funded employers; employers effectively control the arbitration process, including the selection of arbitrators and the rules of that govern the proceeding; and there is no appeal from a bad arbitration decision. Adding to this imbalance is the U.S. Supreme Court’s recent decisions that make it extremely difficult to get out of forced arbitration agreements or class action bans.[2]

    Servicemembers hoping to escape forced arbitration agreements to pursue their USERRA rights in court are unlikely to be successful.  Recent case law in the Fifth and Sixth Circuits (as well as several district courts) have held that USERRA claims are subject to forced arbitration, in part because courts hold the statutory language of USERRA does not demonstrate a congressional intent to preclude arbitration.[3]