ACSBlog

  • March 2, 2017
    Guest Post

    by Catherine Y. Kim, Associate Professor of Law, University of North Carolina School of Law

    Last week DHS issued new guidelines implementing President Trump’s Executive Order on Border Security, announcing a policy of mandatory detention for noncitizens apprehended at the border.

    When a noncitizen arriving at the border is charged with removability, Section 212(d)(5) of the Immigration and Nationality Act grants immigration officials discretion to release her on parole pending the outcome of removal proceedings. For decades, officials considered factors such as the individual’s age, health, family ties in the United States and the hardship that detention would cause, in determining whether detention was warranted. Last year, DHS reported detaining only 352,882 of the 805,071 noncitizens placed in removal proceedings last year.       

    Under the new guidelines, discretionary grants of parole are prohibited unless the Deputy Director of ICE or the Deputy Commissioner of CBP provides written authorization for the individual’s release; individuals who demonstrate a credible fear of persecution for asylum purposes remain eligible for discretionary parole without such written authorization. The guidelines explicitly preclude grants of parole on a categorical basis, for example, to all children, or pregnant women, or individuals over the age of 80. Moreover, they appear to preclude consideration of alternatives to detention, such as electronic monitoring.     

    Last year, DHS apprehended 690,637 noncitizens at or between ports of entry. This figure includes 415,816 individuals, including 59,757 unaccompanied children and 77,857 family units, apprehended by U.S. Border Patrol, plus an additional 274,821 individuals denied entry by U.S. Customs and Border Protection’s Office of Field Operations. Some of these individuals arriving through the southern border may be repatriated immediately to Mexico without a hearing, assuming the Mexican government agrees to accept them. Some will be able to establish a credible fear of persecution and thus become eligible for discretionary parole. Under the new guidelines, however, virtually all other noncitizens apprehended will be detained.

  • March 2, 2017
    Guest Post

    by Justin Pidot, Associate Professor, University of Denver Sturm College of Law

    In its zeal to block regulations adopted by the Obama Administration, the U.S. House of Representatives recently approved a Congressional Review Act (CRA) resolution to overturn BLM’s Waste Prevention Rule, sometimes called the venting and flaring rule. The effort is another in a recent spate of misguided uses of the CRA and represents poor stewardship of natural resources owned by the American public. 

    The Waste Prevention Rule requires companies drilling for oil and gas on federal land to take reasonable steps to prevent natural gas from being released into the atmosphere. Gas in the air cannot be used to generate electricity and it significantly contributes to climate change. Companies also do not have to pay royalties on gas that they do not bring to market, meaning that taxpayers receive no revenue from these public resources. 

    The CRA allows Congress to overturn any regulation adopted by a federal agency within the last sixty legislative days. Until this year, Congress only used the CRA once. This week Congress used it to torpedo the Office of Surface Mining’s Stream Protection Rule, which required coal mining companies to restore waterways after mining, and Congress is considering a raft of other CRA resolutions. 

    Congress should think twice before using the CRA casually and frequently. Federal agencies spend years developing regulations: the Stream Protection Rule was in development for eight years and the Waste Prevention Rule for more than two. The process of developing a regulation harnesses the wisdom of policy, scientific and legal experts and involves extensive public participation. Under the CRA, Congress undoes years of work in the span of hours; a feature of the CRA is that it limits congressional debate. Perhaps most troublingly, language in the CRA suggests that Congressional action also blocks any similar rule the agency may want to issue in the future, thereby threatening to permanently prevent federal agencies from tackling important issues.

  • March 1, 2017

    by Katie O’Connor

    In an era of record political polarization, there are still a handful of issues on which Americans seem to agree. One such issue is the need to implement serious campaign finance reform and drastically reduce the amount of money in politics. According to a 2015 New York Times/CBS News poll, 84 percent of respondents thought that money has too much influence in American political campaigns. 39 percent of respondents said the system for funding political campaigns needs fundamental changes, and another 46 percent said the system needs to be completely rebuilt. Over three-quarters of respondents were in favor of limiting the amount of money individuals can contribute to political campaigns.

    Despite a near consensus on the need for change, little has been done to slow the flood of money into politics in recent years. In fact, it has only hastened, with some help from the Supreme Court. The 2016 presidential election is estimated to have cost $6.9 billion, up from $4.3 billion in 2000. Part of the blame for the impasse lies with Congress, which has been growing increasingly gridlocked for decades. But Congressional deadlock is not a total bar to campaign finance reform.

    The Federal Election Commission (FEC) is the agency whose mission is to enforce and administer campaign finance laws. Specifically, the FEC enforces laws which seek to “limit the disproportionate influence of wealthy individuals and special interest groups on the outcome of federal elections; regulate spending in campaigns for federal office; and deter abuses by mandating public disclosure of campaign finances.” Despite its bipartisan and overwhelmingly popular mission and its distance from a dysfunctional Congress, the FEC is not immune to gridlock. In fact, it has come to be referred to, in some circles, as the Failure to Enforce Commission.

  • March 1, 2017
    Guest Post

    by Lauren A. Khouri, Associate Attorney, Correia and Puth

    This past week, the U.S. Departments of Education and Justice, under the direction of President Trump, withdrew guidance to schools that receive federal funding that Title IX requires transgender students the right to use bathrooms consistent with their gender identity. In withdrawing the guidance on transgender rights, the Trump administration showed neither an understanding of the laws that protect against sex discrimination nor the key role of government in protecting students’ civil rights.

    First and foremost, the Trump administration’s actions do not change the law. Title IX of the Education Amendments of 1972 – like Title VII of the Civil Rights Act of 1964 – has long protected the rights of transgender students to use restrooms and facilities consistent with their gender identity. By its language, Title IX prohibits schools that receive federal funding from discriminating “based on sex.” Over the past two decades, federal courts and agencies have recognized with near unanimity that federal laws prohibiting sex discrimination, including Title IX, prohibit discrimination against transgender persons. For example, the Supreme Court long ago recognized that it is illegal for an employer to deny employment opportunities or permit harassment because a woman does not dress or talk in a feminine manner, because this is discrimination based on sex. Likewise, federal trial and appellate courts have found that it is impossible to consider someone’s gender identity – a person’s innate identification of one’s gender – without considering his or her sex. Indeed, transgender people are defined by the fact that their gender identity does not match the biological sex given to them at birth. Therefore, courts have reasoned, discriminating against someone based on their gender identity is synonymous with sex discrimination prohibited under the law.

  • March 1, 2017
    Guest Post

    *This piece originally appeared on the Campaign Legal Center's blog

    by Anna Bodi, Partner Legal Fellow, Campaign Legal Center

    Texas has the nation’s strictest photo voter ID law in the nation, SB 14, which was found by three federal courts to disenfranchise more than half a million voters.

    The Campaign Legal Center has litigated the case challenging that law for several years now, on behalf of Texas voters and the League of United Latin American Citizens. The Department of Justice, throughout this process, previously sided with the plaintiffs’ claims that the law has a discriminatory purpose and discriminatory effects.

    But that is no longer the case. The DOJ notified CLC yesterday that after many years of vigorously challenging Texas’s voter ID law, it was dropping its claim that the law was enacted with the intent to discriminate.

    The move comes less than a week after the DOJ, in a joint motion with the state of Texas, unsuccessfully pushed to delay consideration of SB 14’s discriminatory purpose, relying on the mere introduction of a new bill, SB 5, in the Texas State Legislature to amend the Texas voter ID bill.

    The DOJ’s sudden reversal in position invites the question: What has changed?