Special Registration, Deferred Action and Prosecutorial (In)Discretion

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

*This piece was originally posted on Medium. 

Witness Fatiha Elgharib, who has lived in Ohio for more than two decades, serves as primary caregiver to a United States citizen child suffering from Down Syndrome, is married to the breadwinner, and faces imminent deportation on November 27. Fatiha became a target of immigration following her fight and support of her husband during the course of NSEERS –a Muslim registration program enacted after the attacks of 9/11. Fatiha’s story highlights the ongoing residual impact of NSEERS and raises important questions about the legitimacy of using a now defunct and ill-conceived policy to generate new deportations.

Early into the Presidential campaign, I lamented over then candidate Donald J. Trump’s proposal of a complete shutdown of Muslim immigration and described the flashbacks it had to ill-conceived policies created after the attacks of 9/11 against Muslim, Arab, and South Asian communities and in the name of nationality security. In the months that followed, I responded to a mountain of inquiries about the parallels between the President’s proposed Muslim registry and a 9/11 program known as “NSEERS” or special registration.

Special registration is a program announced by former Attorney General Ashcroft in 2002 whose legacy is marked with chaos, discrimination, and scars worn by individuals and families to this very day. The most controversial portion of NSEERS enlisted men from 25 majority Muslim countries (one exception: North Korea) to report to local immigration offices for interrogations, fingerprints, and photographs. The residual effects of NSEERS were significant as those who came forward voluntarily to comply or were unfamiliar with the program years later, faced charges, detention, and deportation. Following a decade plus long fight to dismantle the legal framework of NSEERS, the Obama administration rescinded the framework in late December 2016.

Less than one month later, now-President Trump signed his first of many Executive Orders categorically suspending the entry of noncitizens from seven countries, all of which have Muslim populations of 90% of more. In response, lawyers, advocates and community leaders have responded to these bans with legal excellence and significant advocacy. While orders to ban entry differ in form from a registry program, the message both send to Muslim, Arab and South Asian communities is the same: exclusion and discrimination under a proxy of national security.

Enter Fatiha’s case: the heartbreaking intersection of the near-sighted and ill-advised NSEERS program; and Trump’s immigration policies.

The heartbreak is not limited to NSEERS but to this administration’s misuse of prosecutorial discretion in Fatiha’s case. For decades the administration has used a form of prosecutorial discretion called “deferred action” to protect mothers like Fatiha who have lived in the United States for several years and serve as primary caregivers to children born here.

Prosecutorial discretion refers to a decision by the Department of Homeland Security to enforce or not enforce the immigration law against a person. In a world of limited enforcement dollars and cases involving multiple equities like long term residence, the use of prosecutorial discretion in the immigration system is inevitable.

Deferred action data from 2016 reveals that most deferred action cases processed and granted were for medical reasons. Having studied thousands of deferred action cases throughout my research, it is without question that someone like Fatiha who is herself a long-time resident, without a criminal history and caring a for United States citizen child with Downs Syndrome should be protected through formal relief or in the alternative a deferred action. The Department of Homeland Security has the authority and the responsibility to use discretion wisely and judiciously at every stage of the immigration enforcement process.

If the regular lesson is that “two wrongs do not make a right” I might conclude that “two wrongs” (NSEERS and potential deportation) adds to a broken immigration system while needlessly separating a family who call America home.

Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and the Director of the Center for Immigrants’ Rights at Pennsylvania State University Dickinson School of Law and the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press, 2015), now available in paperback.

Don’t Politicize the 2020 Census Count

by Leah Aden, LDF Senior Counsel

*This piece was originally posted on Medium.

In 2020, the federal government will undertake the monumental and important task of attempting to count each person residing within our country’s borders. An exercise that has taken place every 10 years, since 1790, and is mandated by the U.S. Constitution, it cannot be overstated how important the Census is to the well-functioning, representative democracy that our country strives to be. The Black community that the NAACP Legal Defense and Educational Fund, Inc. (LDF), where I work, serves, has a lot to lose if they, like other communities of color, are not counted fairly and accurately in the 2020 Census.

As LDF’s Count on Change campaign around the last Census highlighted, Census data are primarily used for redistricting at every level of government, affecting representation for Congress, state legislative districts, and local bodies like school boards and city councils. Shortly after the Census count, elected bodies go through the hotly-contested and critically impactful process of redrawing election maps. Consequently, the Census count is the basis for every person in the United States to have representation in government.

In addition to redistricting, Census data are fundamental to the distribution of enormous resources and making critical policy decisions. The data are used by elected officials and many others to consider and build infrastructure, inform the tax structure, and administer health care, as well as to direct nearly $700 billion in federal funds for programs such as those that promote fair housing and public education — all issues that bear upon Black people.

It is critical then that the Census Bureau’s leadership ensures that Census data are collected accurately, fairly, and non-discriminatorily. For this reason, Census leaders traditionally have had expertise in quantitative sciences and management experience. That was the case with John Thompson, the Bureau’s former director, who was a career statistician, and worked at the Bureau for nearly three decades before rejoining it as Director. Thompson abruptly resigned in June 2017.

POLITICO has now reported that President Donald Trump is considering the appointment of Dr. Thomas Brunell as a leading candidate for Census Director. A political science professor at the University of Texas at Dallas, the president reportedly considered nominating Brunell to be the next Census Director this past summer. Brunell’s candidacy apparently did not survive the vetting process, as it shouldn’t have. His lack of managerial experience as required by federal law precluded him from the directorship, and the clear partisan nature of his body of professional work — do not indicate his readiness for the top Census job. However, Brunell is potentially being given a second chance; he reportedly is now being considered for the Deputy Director position even though his stunning lack of qualifications for this position should likewise disqualify him.

To say the least, Brunell’s potential appointment should raise eyebrows, particularly because the position does not require Senate confirmation. The rumored pick is yet another example of the Trump administration’s readiness to forego the norms that sustain our democracy: a long-standing precedent that the Bureau’s second in command is led by a nonpolitical, independent, and experienced civil servant and program manager.

In addition to his lack of administrative experience, perhaps the most problematic aspect of his potential appointment is Brunell’s deep involvement in partisan issues. Brunell, a registered Republican, has testified as an expert witness many times on behalf of Republican efforts to redraw districts to entrench that party in power, often by manipulating the power of communities of color. In 2008, he wrote a book titled, Redistricting and Representation: Why Competitive Elections Are Bad for America, in which he maintained the widely unpopular and antidemocratic opinion that competitive elections suppress voter turnout. His consideration for appointment to such an important position is more than just a curious choice. It signals this administration’s long-term efforts to skew the electorate — to choose voters rather than to have voters choose them — as well as the distribution of benefits that flow from it.

Worse, the potential personnel move also indicates the Trump administration’s disturbing attempt to politicize the 2020 Census count and raises major concerns about the administration’s ongoing efforts to encourage voter suppression. Throughout his campaign and since his confirmation, Trump has perpetuated the myth of widespread voter fraud, targeted people of color in this hysteria, and has assembled a sham election commission as a tool to intimidate voters — especially voters of color. LDF has filed one of nine federal lawsuits to challenge this sham.

To be sure, the Deputy Census Director is charged with operational duties that are central for a fair and accurate Census count. The deputy director’s responsibilities are serious: the person is widely considered the Bureau’s chief operating officer and financial officer, and in this position, Brunell has control of where and how the Bureau’s $400 million advertising budget around the Census is spent. Those advertising dollars are traditionally used to encourage hard-to-count communities, like Black communities and immigrants, to respond to the Census questionnaire. That public education is all the more critical given the natural disasters and man-made havoc wreaked by home foreclosures, racism and xenophobia that potentially chills participation in the Census count.

Indeed, Trump’s potential pick also indicates that the White House could use Brunell to facilitate a measure to require that the 2020 Census question individuals about their citizenship and legal status. Such an effort dissuades people of color from participating in the Census, and is also opaquely designed to intimidate and prevent communities of color from engaging in the political process over the long-term.

By law, the Census cannot be used as a tool for immigration enforcement or to police Black and other communities of color. And it’s certainly not intended as a tool to put into effect a discriminatory and political agenda. While the political ramifications of the next Census count are clear, it is ultimately a counting exercise — a purpose that is as nonpartisan and apolitical as a government effort can be. The only agenda that it should have is to be fair and accurate. A Brunell appointment would undermine the Census’s only rightful objective.

What It Means to Trust and Believe Women

by Chris Edelson, assistant professor of government, American University School of Public Affairs

For much of American history, legal rules and cultural norms have deemed women unworthy of trust or responsibility.  The law often treated women as children, incapable of carrying out adult duties. Women did not have the right to vote until 1920. It took until 1961 for the Supreme Court to strike down laws automatically excluding women from jury duty.   Until 1979, state laws made it legally impossible for a husband to rape his wife. In the early 19th century, the doctrine of “coverture” provided that a married woman did not have legal status separate from her husband.  In the eyes of the law, married women were not their own person.  Women were barred—by law or by practice—from professions like law, medicine, and politics.

We like to think those days are long behind us, that women are no longer second-class citizens relegated to a separate, lesser sphere. But it may be difficult, especially for men, to recognize the ways in which significant problems linger.

The recent flood of stories about sexual assault and harassment has pulled back the curtain—in ways that are often painfully obvious but also sometimes harder to see. When women have come forward with allegations of sexual assault or misconduct by powerful men, they are often ridiculed, slandered, dismissed, or simply not believed. One of the dozens of women who described being sexually assaulted and harassed by Harvey Weinstein wore a wire to record incriminating comments; prosecutors did not bring charges.  Four women have accused Roy Moore of sexual assault, attempted rape, or groping. Moore has called this a political witch hunt and the ultra-right wing Breitbart News sent reporters to Alabama in an effort to “discredit the women”.  17 women have described being assaulted, groped, or harassed by Donald Trump. Trump called them liars and threatened to sue them after the election. He never sued, but he was elected president, and the womens’ charges have largely been ignored (though one of the women, Summer Zervos, has filed a defamation lawsuit against Trump).

Even when multiple women come forward with highly credible allegations, it is quite possible nothing will happen—or, more accurately, nothing will happen to the man they accuse. The women who describe what happened to them can expect to be publicly smeared and derided. The focus is on whether to believe their accounts—even when the stories they tell are persuasive, specific, and corroborated.

This of course reminds us what hasn’t changed. A contest between one blustering, disingenuous man and multiple, even dozens, of credible women somehow becomes an even match—or even one where the women lose. Women still know that they cannot count on being trusted or believed. No wonder so many do not immediately come forward with their accounts.

There may be, however, cautious reason for some hope. Some Republicans in Congress have decided that the women accusing Moore can be trusted. Senate majority leader Mitch McConnell (R-KY) bluntly concluded that “I believe the women”. When Leeann Tweeden said that Sen. Al Franken kissed and groped her in 2006 without her consent, Senate Democrats condemned Franken’s behavior and called for an investigation.  These are important first steps, though it is not enough. First, it remains to be seen whether there will be any consequences for Roy Moore or Al Franken. With Franken in particular, it may be his word against Tweeden’s, unless additional women come forward. Will her account be dismissed with the tired “he said, she said” rationale? Second, and more broadly, it’s essential to consider what it means to really believe and trust women. Sen. McConnell is right that men should believe women when they come forward with credible accusations of sexual assault and harassment. But men must also trust women when they say they can decide what happens to their body during pregnancy, or whether they should have access to contraception.  And, most centrally, men should welcome and support the long overdue necessity of equal representation for women in elected office, on the federal and state bench, in corporate boardrooms, and across society.  When that happens, maybe it won’t be necessary any longer to wonder whether men will believe or trust women.  Women will be able to ensure, by themselves, that their voices have power and consequence.

Holes in Grassley’s Blue Slip Story

by Paul Gordon, Senior Legislative Counsel, People For the American Way

*This piece was originally posted by People For the American Way. 

Chuck Grassley wrote this about blue slips in the Des Moines Register in 2015:

For nearly a century, the chairman of the Senate Judiciary Committee has brought nominees up for committee consideration only after both home-state senators have signed and returned what’s known as a “blue slip.” This tradition is designed to encourage outstanding nominees and consensus between the White House and home-state senators. Over the years, Judiciary Committee chairs of both parties have upheld a blue-slip process, including Sen. Patrick Leahy of Vermont, my immediate predecessor in chairing the committee, who steadfastly honored the tradition even as some in his own party called for its demise. I appreciate the value of the blue-slip process and also intend to honor it.

It turns out that only applies to a Democratic president’s nominees. On Thursday, Politico reported that Chuck Grassley is ditching the longstanding Senate blue slip policy and will be holding a hearing for David Stras, even though Stras does not have the support of both of his home state senators. Grassley laid out his justification for this seismic shift in policy in an op-ed in The Hill yesterday. An earlier PFAW post explained how Grassley’s comparison to the 2013 filibuster rules change made no sense. But that’s just one of the many holes in his argument.

For instance, Grassley wrote:

Nearly a century ago, Sen. Thomas Hardwick sent a blue sheet of paper to the chairman of the Senate Judiciary Committee claiming that a nominee from his home state of Georgia was “personally offensive and objectionable.” Nonetheless, the committee proceeded on the nomination and reported the nominee to the Senate floor.

Grassley left out a vital piece of information: Respecting the home state senator’s opposition, the committee reported the nomination negatively, and the Senate rejected it without even bothering to hold a recorded vote.

Hmmmm … I wonder why he would omit such an important detail.

Grassley’s very next paragraph continued the misleading tactics:

That blue sheet of paper was a part of a newly-adopted courtesy to get insights on federal court nominees from home-state senators in an era when such information was hard to come by. This courtesy, commonly known as the blue slip, was intended to serve as an advisory tool – a source of information for senators to consider when casting a vote on the Senate floor.

This newly-adopted courtesy was much more than just an advisory tool. It has ensured that the Senate will not confirm judicial nominees over the objection of either home state senator. It has also been a way to protect the unique nature of the Senate as a collaborative body respecting individual senatorial prerogatives.

According to the Congressional Research Service, the policy was introduced in the 65thCongress of 1917-1918, when Woodrow Wilson was president and his fellow Democrats controlled Congress. That unified control of all the elected branches of the federal government suggests what might be the blue slip’s most important role, whether intended or not: The blue slip was a way for the Senate to protect its institutional interests from the effects of partisan loyalty to the president. In other words, it has served to protect the separation of powers. As we have seen with the Senate GOP’s eagerness to confirm President Trump’s woefully unqualified nominees, such institutional tools are vital. With the Senate rubber-stamping Trump’s judicial picks who will in turn rubber-stamp his actions, the independence of Congress and the courts is threatened. Trump is getting exactly what he wants, and Grassley has now made it even easier for the Senate to serve the president.

Grassley’s op-ed went on:

For the vast majority of the blue slip’s history, a negative or unreturned blue slip did not stop the Senate Judiciary Committee from holding a hearing and vote on a nominee.

A couple of things here. First, Grassley’s phrasing makes it sound like there were lots of committee hearings in the face of unreturned or negative blue slips. But that was simply not the case. His sentence would be true if there had been a thousand negative or unreturned blue slips that the committee chair ignored. But it would also be true – as is the case – if there were few if any.

Second, Grassley once again left out an important detail: In the policy’s earlier incarnations, negative blue slips meant that the home-state senator wanted to testify at the hearing in opposition to the nominee. Holding a hearing during that earlier era was consistent with the blue slip practice. Also consistent with the blue slip practice is the fact that the Senate did not confirm those nominees.

Perhaps my favorite part of the op-ed is Grassley’s attempt to explain away a 2009 letter from every Republican senator to the newly-elected President Obama. Grassley wrote:

The minority also points to a letter signed by Republican senators at the beginning of the Obama administration explaining that senators expected to be consulted on judicial nominees from their home states. This letter merely supported continuation of the strict blue-slip policy adopted by Chairman Leahy (D-Vt.) during the Bush administration. It would have been unfair to allow President Obama to make judicial nominations without home-state senators’ approval when Chairman Leahy demanded such terms under President Bush.

Grassley seems to undermine his own argument here by admitting that “[i]t would have been unfair to allow President Obama to make judicial nominations without home-state senators’ approval when Chairman Leahy demanded such terms under President Bush.”

Just update the presidents: It would be unfair to allow President Trump to make judicial nominations without home-state senators’ approval when Chairman Grassley demanded such terms under President Obama.

Yes, it would be unfair. Nevertheless, Grassley is scheduling a hearing for Stras.

Why be fair when you have power?

Will Whoever Fires Bob Mueller Please Turn Off the Lights

by Victoria Bassetti

*Victoria Bassetti is leading ACS' analysis of US Attorneys.

** View the full graphic here.

If Donald Trump tried to fire Special Counsel Robert Mueller, it could be a lot harder than people think.

White House spokesperson Sarah Huckabee Sanders says he won’t do it.

Last Monday, she was asked: “Is the President going to rule out, once and for all, firing [Special Prosecutor] Robert Mueller.” 

“There's no intention or plan to make any changes in regards to the special counsel,” she replied.

Sen. Bob Corker (R-Tenn), fresh off warning that the President might start World War III, can’t imagine he’ll do it.

Last Tuesday, a reporter cornered the president’s harshest Senate critic in a hallway and posed the following: “There are stories that the President is thinking about firing Mueller. Do you think that’s appropriate?”

The tired-looking Corker replied: “I can't imagine there’s any truth or veracity to the president thinking that he would consider firing Mueller. ... Hopefully the question being asked is a question about something that cannot possibly be reality.”

Yet, all last week the President reportedly “seethed” in his third-floor private residence as he watched cable television reports of Special Counsel Robert Mueller’s first indictments. Firing Mueller, the AP reported, is “a possibility that has weighed on him in recent weeks.”

Indeed, as far back as July, Trump mused about firing Mueller. In a New York Times interview, Trump was asked if he would fire the special counsel if he started looking at subjects unrelated to the Russia probe, such as his finances.

“I would say yeah,” Trump first replied. Then he added more forcefully, “I would say yes.”

But suppose the president decided to ignore the advice of Ty Cobb, the White House lawyer in charge of the Russia probe, and John Kelly, his chief of staff, and decided to fire Mueller?

Just for fun, let’s see how a Trump move to fire Mueller could play out.

His first call would be to Attorney General Jeff Sessions. “Sorry, Mr.President,” Session might begin. “No can do. I recused myself from this investigation, remember? Surely you recall saying you never would have hired me as attorney general if you had known I would recuse myself. Why don’t you try Rod Rosenstein, the deputy attorney general? He’s the one in charge of Mueller. Hold on while I find his number.”

So Trump would then call Deputy Attorney General Rosenstein, a career Justice Department official, summa cum laude graduate of Penn, and former Harvard Law Review editor.

“Mr. President, as I explained in Senate testimony in June, ‘I am not going to follow any orders unless I believe those are lawful and appropriate orders.’ The special counsel can only be fired for good cause. With all due respect sir, you’ve put nothing in writing that proves good cause exists to dismiss the special counsel.

“Moreover, as I’m sure your lawyer can tell you, I have been interviewed as part of the investigation into the firing of former FBI Director James Comey. So I feel like I need to decline your order.  I’m sure you understand.”

At this point, the call likely ends in one of two ways: either Rosenstein is fired or he quits.

Next up on Trump’s phone tree: the third highest-ranking official at Justice, Associate Attorney General Rachel Brand, a Harvard Law School graduate and former clerk to Justice Anthony Kennedy.

“Mr. President, as I’m sure you know, I can only fire Bob Mueller for ‘misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.’ And the law also says that the Special Counsel must be informed ‘in writing of the specific reason for his or her removal.’

‘Sir, if I may speak freely, why don’t you have your lawyers draw something up, and I’ll take a look at it?”

At this point, Brand would probably be fishing in her purse for her office keys to hand to Justice Department security on her way out.

Trump, increasingly anxious because he might miss the opening of Sean Hannity, would then reach out to Solicitor General Noel Francisco, a former Justice Antonin Scalia clerk and University of Chicago Law School graduate.

“Well, you see Mr. President, I’ve got a problem here,” Francisco might say. “Before you brought me into the Solicitor General’s office, (thanks for that, by the way), I worked for Jones Day in D.C. where I was a partner with your White House Counsel, Don McGahn. And sir, you know how hard it is to unwind all these partnership things – I have money tied up in the firm. And your 2020 campaign paid Jones Day $800,000 in the third quarter alone. I need to call the department’s ethics director, Cynthia Shaw. Can I get back to you in a few days? Oh also, do you have anything in writing why there’s good cause to fire him?”

Now here is where things get even stranger. According to a March 31 Executive Order on Justice Department succession, the next three officials in line are the U.S. Attorneys for the Eastern District of Virginia, the Eastern District of North Carolina, and the Northern District of Texas.

So the president’s next call is to Dana Boente, U.S. Attorney for the Eastern District of Virginia. Boente has had a wild ride in the Trump administration. He was appointed to his current post by President Obama. But when Acting Attorney General Sally Yates was fired in February for refusing to defend the President’s travel ban, Boente was named to replace her. He served as Acting Attorney General for ten days before Jeff Sessions was sworn in. 

Boente then served as Acting Deputy Attorney General, the no. 2 post, for 75 days until Rod Rosenstein took over. Then Boente was one of 46 U.S. Attorneys in March who Sessions ordered to resign. Yet, Trump rejected his resignation. Now, Boente is serving as acting head of the Department’s National Security Division until Trump’s nominee is confirmed. A 33-year Department veteran, Boente is known for his mild manner and intense devotion to work.

“Dude, don’t you read the papers? I announced my resignation Friday before last. I’m sticking around until you guys name a successor. Anyway, permit me to remind you that I was the guy who worked with Jim Comey investigating former National Security Adviser Michael Flynn’s lobbying deals. I empaneled grand juries that subpoenaed his business records. Those grand juries are now being run by Mueller. And you want me to fire the guy?”

It is now 8:54 p.m. Only six minutes left before Hannity.

On to Robert “Bobby” Higdon, Jr., the Trump-appointed U.S. Attorney for the Eastern District of North Carolina. Higdon spent nearly 25 years as a federal prosecutor, working in both North Carolina’s Eastern and Western districts. Yet, his record is hardly unblemished. He led the campaign finance fraud prosecution of former North Carolina Sen. and presidential candidate John Edwards, which resulted in an acquittal on one charge and the dismissal of the remaining five after a hung jury. (Full disclosure: I worked as Edwards’ Senate legislative director.)  

In 2013, Higdon was removed as head of the Eastern District’s criminal division after two federal appellate judges delivered a blistering critique of the section, saying that it had frequently withheld evidence and failed to correct false trial testimony.

Higdon was sworn-in as U.S. Attorney October 10.

People behave unpredictably in unprecedented circumstances. It’s entirely possible Higdon may prove no more malleable than the other recipients of the president’s calls. As Trump himself likes to say: Stay tuned.

Supreme Court will decide if women can join together to fight sexual harassment at work

by Celine McNicholas, Labor Counsel, Economic Policy Institute and Sharon Block, Executive Director of the Labor and Worklife Program, Harvard Law School

After the news that Hollywood producer Harvey Weinstein had been sexually harassing and assaulting women in the movie industry for decades, millions of women shared their stories with the hashtag #metoo. The social media campaign shined a light on a fact that to many women: sexual harassment is a daily fact of life in the workplace. Many American corporations foster—or at least tolerate—widespread, egregious sexual harassment of their workers, even all these years after U.S. law first recognized sexual harassment as a form of sex discrimination. As the Supreme Court considers the first case of its term, National Labor Relations Board v. Murphy Oil, we hope they have read the stories about Weinstein, Bill O’Reilly and other men, as well as the millions of people who spoke up online.

Just last week, a poll conducted by NBC News and the Wall Street Journal found that 48 percent of currently employed women in this country say that they have personally experienced an unwelcome sexual advance or verbal or physical harassment at work. And, while many corporations have announced zero-tolerance policies for harassment, employers are increasingly preventing workers who experience sexual harassment to join together to seek justice

Today, 24.7 million American workers have been forced to sign contracts that, as a condition of employment, require them to waive their rights to joining a class action lawsuit to address sexual harassment and other workplace disputes—instead these workers must act alone to resolve what is often systemic violations of employment protections. The National Labor Relations Board has determined that these arbitration agreements violate workers’ right under the National Labor Relations Act to join together for “mutual aid and protection.” Business interests—and the Trump administration—disagree. In Murphy Oil, the Supreme Court will decide whether workers have the right to come together to protect themselves from workplace issues like sexual harassment. The case could not be more relevant, or present the Justices with two more starkly divergent options.

If the Justices side with Trump and big corporations, women across America will be forced to go it alone when they are victimized and harassed. This means that a woman whose boss just threatened to fire her if she refuses to perform sexual favors (1) has to find a lawyer on her own, (2) is prevented from bolstering her credibility by involving coworkers who have endured the same treatment, and (3) has to subject herself to sole scrutiny of the action. As recent revelations demonstrate, in many workplaces this is not a one-off experience, but is instead a systemic problem. Prohibiting women and men from collectively addressing harassment and forcing them to go it alone creates an obstacle to pushing for systemic change, which means that the problem is likely to continue.

If the Justices side with the NLRB and the working people they represent, that woman can seek the support of her coworkers, making it easier to find a lawyer to take the case and present the pattern that gives an accurate picture of the workplace. From Rosa Parks to Lily Ledbetter to the brave women in the #metoo campaign, women have recognized the power of community to effect real change. The argument in Murphy Oil could not present a more stark choice for the Justices—a choice between a future where corporations can run roughshod over the rights of workers or where women and men can effectively seek justice.