• November 21, 2014
    Guest Post

    by Thomas NolanAssociate Professor of Criminology & Director of Graduate Programs in Criminology, Merrimack College; former Senior Policy Advisor at the Department of Homeland Security’s Office of Civil Rights and Civil Liberties; former lieutenant, Boston Police Department

    Attorney General Eric Holder recently announced an initiative sponsored by the Department of Justice through the Bureau of Justice Assistance and the Office of Community Oriented Police Services that provides guidance and support for law enforcement agencies in their response to protesters who are engaging in constitutionally protected activities, particularly those activities protected by the First Amendment such as freedom of speech, freedom of assembly, and freedom of the press. The provision of this guidance appears to coincide with the expected announcement of the findings of a grand jury hearing evidence in the case of the death of Michael Brown at the hands of Officer Darren Wilson in Ferguson, Missouri on August 9, 2014.

    In the aftermath of the shooting death of Brown, the world watched as protesters took to the streets in Ferguson and were met with a hyper-exaggerated, highly militarized response from the police in Ferguson that unilaterally trounced the First Amendment rights of the protesters and unequivocally suspended the provisions of the United States Constitution that guarantee the protections of free speech, free assembly, and a free press.  The world saw law enforcement officers engage in a shameless and hysterical display of unrestrained force against a relatively small group of largely peaceful protesters using sound cannons (designed for use in wars by the military), tear gas (chemical weapons banned by the Geneva Conventions for use during war), rubber bullets (potentially lethal), smoke bombs and grenades, stun grenades (potentially lethal), wood bullet projectiles, pepper pellet rounds (of the type that killed student Victoria Snelgrove in Boston in 2004), and bean bag rounds (also potentially lethal).

  • November 21, 2014

    by Caroline Cox

    At Hamilton and Griffin on Rights, Thomas B. McAffee explains how religious freedom arguments about marriage equality miss the mark.

    Katie McDonough of Salon discusses how, in light of the growing number of states introducing abortion restrictions, women have begun sharing their abortion stories.

    Peter Beinart looks at President Barack Obama’s immigration announcement in The Atlantic, asserting that the executive order helps fulfill his promise to progressives.

    In the Huffington Post, Fred Wertheimer argues that Citizens United will go down in history as one of the worst Supreme Court decisions. 

  • November 20, 2014
    Guest Post

    by Adam Cox, Professor of Law, New York University School of Law, and Cristina Rodriguez, the Leighton Homer Surbeck Professor of Law, Yale Law School

    *Professors Cox and Rodriguez have commenced a symposium at Balkinization, which we're cross-posting.
    Tonight, President Obama announced sweeping administrative reform of immigration law. His efforts raise important questions about the legal basis for his actions and its implications for the future of immigration law and the separation of powers.
    Over the next several days, we will convene an online symposium here, on Balkinization, to discuss and debate these issues with a group of leading immigration law and constitutional law scholars and litigators.  While much ink has been spilled in recent months over the legality of administrative immigration relief, much of that writing has been necessarily speculative.  Now we know the basic facts.  The President’s administration will exercise prosecutorial discretion to defer the removal of many parents of U.S. citizens and lawful permanent residents, making them eligible for work authorization for up to three years at a time.  This action is estimated to encompass 3.3 million unauthorized immigrants.  When combined with the last round of administrative relief—the Deferred Action for Childhood Arrivals Initiative—roughly 5 million persons, or 40 percent of the unauthorized population, may be affected.
    As the President’s announcement made clear, however, there will be limits to his exercise of discretion.  The parents of DACA recipients will not be included.  This is an extremely important fact—not just as a political matter, but also, potentially, as a legal one.  Over the course of recent debate, writers on all sides of the issue have struggled mightily to avoid a central question about the exercise of prosecutorial discretion in immigration law: how far is too far?  Opponents have argued that the president has crossed the line into unconstitutionality; defenders have contended that he has not. But almost no one has been willing to say where that line is located.  Tonight that changed.  An opinion from the Office of Legal Counsel, made public by the administration, lays out the legal basis for the President’s actions and provides scholars with new theories of executive power and prosecutorial discretion to explore.  Importantly, that opinion concludes that, while the President has authority to grant relief to the parents of US citizens and LPRs, the President lacks legal authority to grant such relief to the parents of DACA recipients.
    We are among those who believe the basic parameters of executive discretion in immigration law permit the President to take the steps he has.[1] But the OLC opinion raises important questions about the limits of discretion, as well as a new gloss on the legal issues—the legal claim that the President’s actions are consistent with congressional priorities as reflected in the Immigration and Nationality Act.  
    The combination of the President’s sweeping action with an official government defense of the program’s legality—something that did not accompany DACA—makes now a crucial moment to discuss two fundamental questions that have long been embedded in the debate over administrative relief.  First, the question of scope: of how the size and composition of the group offered administrative relief bears on relief’s legality.  Second, the question of how the form of relief—that is, the precise benefits that are conferred through administrative action—affect its legality?
    These and other questions will be ones that we and the other symposium participants will engage and debate in the coming days.


  • November 20, 2014

    by Caroline Cox

    Boer Deng and Dahlia Lithwick report in Slate on the upcoming Texas execution of a profoundly mentally ill man.

    In The Washington Post, Katrina vanden Heuvel provides a hopeful vision of criminal justice system reform.

    In The New York TimesMichael D. Shear previews President Obama's upcoming announcment on his executive action on immigration. 

    Ian Millhiser argues at Think Progress that the Supreme Court has previously said that President Obama has the necessary power to issue his immigration order.

    At Vox, Sarah Kliff profiles Michael Cannon, the ardent Obamacare opponent who has led the new legal attack on the law. 

    Mychal Denzel Smith writes for The Nation that a failure to indict Darren Wilson will not stop the movement against police violence in the United States.

  • November 19, 2014

    by Katie O’Connor

    Throughout this week, individuals and organizations around the country observe Transgender Awareness Week to help raise the visibility of transgender and gender non-conforming people and to address the issues these communities face. As part of that effort, ACS has released a new Issue Brief, “The Transgender Tipping Point: An Overview for the Advocate,” in which Dr. Jillian T. Weiss surveys the laws affecting the transgender community and offers guidance to advocates who seek to expand the legal protections provided to transgender people.

    There are approximately 700,000 transgender people in the United States, but until very recently they have been considered strangers to the law. For decades, courts consistently denied protections against discrimination for transgender people. It was not until 1989, in the case of Price Waterhouse v. Hopkins, that the U.S. Supreme Court acknowledged that gender stereotyping constitutes unlawful sex discrimination. Since then, advocates have used laws prohibiting sex discrimination to protect people against discrimination based on transgender status, and courts have slowly become receptive to such cases.

    More recently, cities, states and the federal government have begun to explicitly protect transgender people against discrimination in the areas of employment, education, housing, health care and marriage, among others. Laws that once prohibited discrimination based on sex, race or religion have been amended to protect against discrimination based on sexual orientation and gender identity or expression.