America's Own Present-Day Colonialism

As a law professor who begins every class (no matter the subject) with at least five minutes of discussion about what is happening in the world and our nation, I am struck by how recent student discussions about colonialism deride the British Empire but fail to recognize that the United States—now, today—is a colonialist empire.

America rules over and imposes second-class citizen status on five inhabited island territories in both the Atlantic and Pacific Oceans: Guam, the Commonwealth of the Northern Mariana Islands (CNMI), American Samoa, Puerto Rico and the U.S. Virgin Islands.

Everyone born in those territories (except for those in American Samoa) is an American citizen under the born-on-American-soil equals citizenship provision of the 14th Amendment of the U.S. Constitution. (“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”)

Each of the five territories has a non-voting (silent) delegate (or in Puerto Rico’s case, a resident commissioner) in the U.S. House of Representatives.  Recall that the U.S. Virgin Islands Delegate, Stacey Plaskett, was a House Manager, (a House prosecutor) on the second Trump impeachment proceeding in early 2021 (related to the insurrection at the capitol.) However, because she resided in a U.S. territory, and not a state, Plaskett, as a non-voting representative from the U.S. Virgin Islands, was barred from voting with other House members on whether and what impeachment charges should be sent to the Senate.

None of the U.S. territories has representation in the U.S. Senate and neither do they have any electors in the electoral college.  Only when the American citizens of Guam, the U.S. Virgin Islands, Puerto Rico, and those of the Commonwealth of the Northern Mariana Islands relocate to one of the 50 states can those island-born Americans vote for president - - even though each of the territories is listed on USA.gov, the official web portal of the United States federal government for states and territories.

Each of the five territories’ non-voting delegate (or commissioner) in the U.S. House has a “house.gov” website and a Washington, D.C. office (with other Congresspeople) at the Rayburn Building. Each territory’s house.gov website makes clear, to some degree, that the territories’ “head of state” is the President of the United States and that their territorial matters are overseen by an agency of the federal executive branch (Art. II of the Constitution) specifically, the U.S. Secretary of Interior and, more specifically, to the Office of Insular Affairs (OIA). With some estimates as high as 98 percent of the residents of the five inhabited territories being of minority descent, congressional oversight of the territories is tucked into committees which also oversee Indian Affairs.

This tacit emphasis on the skin color and ethnic origin of the people living in America’s territorial acquisitions took hold after America’s 1898 victory over Spain in the

Spanish-American War.  The 10 week-long conflict (what an American governmental official called a “splendid little war”) would help America catch-up to other nations of the world with empire building. America took from Spain such places as Puerto Rico and Guam, joining (at the dawn of the 20th century) the British and other European nations, in manifesting imperialistic dominance over far-away places on the globe.

The Spanish-American war whetted even more U.S. colonial expansion overseas.  Months after the war’s end, America also added American Samoa to its expanse of U.S. territories (secured from the Britain and Germany in 1899), and annexed Hawaii, where in 1893, American corporate interests (headed by a pineapple mogul named “Dole”) operating in Hawaii had forcibly removed Hawaii’s Queen and set up a white-male mainland-directed government on the Hawaiian lands.  America, in a sense of ironic foreshadowing of WW II, would use Hawaii’s Pearl Harbor in 1898 as a naval base to fight the Spanish in the Pacific theater.

According to U.S. State Department archives, for most of the 1800s leaders in Washington were concerned that Hawaii might become part of a European nation's empire so, America ultimately added Hawaii to its list of overseas territorial acquisitions. All of these territories -- whether by conquest or treaty -- would be places where the land acquisition’s inhabitants’ rights, living conditions, and quality of life would be determined by Congress in D.C.

Until the acquisitions from the Spanish-American War, America had had a systematic and methodical way of creating new states from existing territories based on both (i) Thomas Jefferson’s Northwest Ordinance of 1787 (which encouraged state-building and the admission of new states once a territory had sufficient inhabitants and a written governing document) and (ii) two provisions of Article IV, section 3 of the 1787 Philadelphia U.S. Constitution, specifically:

  1. a)     [section 3, clause 1] which gave the U.S. Congress the sole authority to admit new states into the Union.  (“New states may be admitted by the Congress into the Union” . . . with the consent of Congress”), the “equal footing doctrine”

and

  1. b)     [section 3, clause 2] which states that “Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or property of the United States,” the ownership of federal property clause.

All new U.S. states would have equal footing and equal rights as all other existing states. There would be no stepchildren states.  In the decade before the Spanish-American War (1888-1898) as the 19th century drew to a close, America followed its “all states have equal footing” doctrine and added North Dakota, South Dakota, Montana, and Washington State to the flag in 1889, as states 39 through 42, followed by Wyoming and Utah, 44 and 45 in 1890 and 1896, respectively.

But the anticipated progression from territory to statehood would stop as America, like its mother country, became an empire and extended its territorial reach in the Pacific and Atlantic Oceans.

The federal courts, starting in 1901, gave America (and Congress, specifically) “legal cover” to treat overseas territories differently from those of America’s contiguous land acquisitions.  The cases were even given an arguably pejorative name, “the Insular Cases” from the Latin “insula” meaning island, but in the day also meaning those with a primitive, isolated, or ignorant world-view.

The U.S. Supreme Court, in the case of Downes v. Bidwell (1901) addressed this solely new political question as to how the newly-acquired America territories of the American empire should be treated.

Were the new lands gathered into the American fold “as a result of a successful war” to be treated like the contiguous territories on the mainland or were they “insular” or backward possessions: “inhabited by different races, differing from us in religion, customs . . . modes of thought. . . [so much so that making] “the administration of justice according to Anglo-Saxon principles, . . . for a time [to] be impossible?”

The high court, in the Insular Cases, decided that these American territorial land acquisitions, as they were occupied by uncivilized “alien races” and “savages” who were “ignorant and lawless,” would be given a new status. They would be called “unincorporated” territories where the U.S. Constitution would not be fully followed or incorporated on those lands. These “backward places” would not be on a path to eventual statehood (like the contiguous state territories) and no one in these places could claim the rights of other states and territories.

The Supreme Court’s conclusion? The federal government would be permitted to “rule” Puerto Rico and other territories, largely without regard to the Constitution.

These cases from the 1900s are still good law today, and have been cited as precedent by the U.S. Supreme Court. This occurred as recently as April 2022, when our top court, in

U.S. v. Vaello Madero, ruled that since Puerto Rico was not a state, but only an unincorporated territory, the 3.5 million residents there (even though born Americans), and those of the other inhabited U.S. territories, are properly and constitutionally denied Social Security disability benefits provided to Americans of the other 50 states.

While Hawaii, which had extensive mainland-directed business interests, was granted statehood by Congress in 1959 (with a U.S. Senate vote or 75 (for) and 15 (against) and yes votes of 323 to 89 no votes in the House of Representatives), there was no similar effort on Puerto Rico’s behalf.  This was even though (in addition to Hawaii) other North American land acquisitions became states (Oklahoma, New Mexico, Arizona and Alaska) after Puerto Rico was taken from the Spanish.

That all born in the American island territories in 2022 can acquire American passports (so too with American Samoans although the word “national” is stamped onto their passports instead of the word “citizen”) and live in places where English is the primary language, the U.S. dollar is the currency, and where some of these places have higher rates of military service than those of the 50 states (with American Samoa having had the highest rate of military service enrollment than any other state or U.S. territory, and like Guam, where a significant percentage of the adult population has served in the military) does not obviate the deprivations and differences that American territories face when compared with U.S. states.

These deficiencies include substandard medical care, deficient broadband and wi-fi access, and substandard infrastructure for things like buildings, roads, bridges and drinking water.

And these deficiencies have been revealed to the world, last month, in the aftermath of Hurricane Fiona (a Category 1 storm).

Fiona resulted in catastrophic tropical storm warnings to U.S. territorial acquisitions of the U.S. Virgin Islands and Puerto Rico, and left practically all of Puerto Rico without electrical power.

Being a territory and not a state, has meant that FEMA funds (from the Federal Emergency Management Agency, America’s first responders to natural disasters on American soil) are slow to materialize.

Puerto Rico still has not recovered from 2017’s Hurricane Maria; millions of Americans there lost power and thousands died. FEMA, thereafter, issued an “after-action” report, admitting culpability in creating a humanitarian disaster in the U.S. territory replete with supply shortages and an inability to coordinate logistics with on-the-ground personnel.

And although President Biden, announced on September 22, 2022, that FEMA funds will be headed to Puerto Rico in the wake of Hurricane Fiona, there needs to be more to elevate our sister-territories to state-status, or, at a minimum, provide full access to the privileges of U.S. citizenship to residents of our territories.

The U.S. House of Representatives (non-voting) Delegate to the U.S. Virgin Islands, the Honorable Stacey Plaskett, on her twitter feed last month, best encapsulated the needs of the U.S. territories: “So now that Queen Elizabeth has been laid to rest, can American news networks focus on the devastation in the (ALL CAPS) AMERICA location of Puerto Rico.”

Here are two more actions the U.S. Supreme Court and Congress should take.

To our highest court: overrule the Insular Cases. When Justice Neil Gorsuch, in April 2022, upheld the denial of federal disability benefits to residents of Puerto Rico, he explained in his Vaello Madero concurrence, that he did so because “no party [to the litigation] ask[ed] us to overrule the Insular Cases.” Those cases, he said, were the product of bigotry and have no founding or support in the original words of the U.S. Constitution. The justice wrote, "[n]othing [in the U.S. Constitution] authorizes judges to engage in the sordid business of segregating territories and the people who live in them on the basis of race, ethnicity, or religion.”

And to the Congress: Nothing in the post-Civil War U.S. Constitution authorizes your continued complicity in denying rights to Americans of our current colonial territories. Make the U.S. territories (like Puerto Rico) states.

Rectify, finally, the second-class status that has, in large measure, circumscribed the lives of over 3.5 million people - - far from the mainland who call America home.

An Office You Cannot Afford to Ignore on Your Ballot

This is the eighth and final piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. You can find all the pieces in the series here.

Many things are at the top of mind for voters heading to the polls and filling out their mail-in ballots this year: abortion and health care, climate change, racial justice, gun violence, safety in schools, LGBTQ+ rights, workers’ rights, and threats to democracy. But many people bypass a race on the ballot in most states that can make a big difference on all of these issues.  Many voters are not familiar with this office, know who the candidates for it are, or how to decide who among them is best suited to the job. So, they opt not to vote for anyone for this important office. The office is state attorney general, and the 33 races for attorney general across the country are too important for voters to ignore.

The Basics

As the state’s chief legal officer, the attorney general defends and initiates lawsuits involving the state, its officers, and agencies, and the constitutionality of its laws. With broad jurisdiction and independence to act, state attorneys general play a crucial role in upholding the rule of law and protecting the rights, health, and safety of their states’ residents. The specific responsibilities of state attorneys general can vary state to state. For instance, their authority to prosecute crimes vary widely and are often limited. But in many states, they are and can be leaders on state criminal legal policy. The state attorney general can also advocate for policy changes with their positions in litigation and in Attorney General Opinions. And as a high-level government official, the state attorney general has a bully pulpit that can be used to either promote positive change or support unjust, regressive policies and laws.

Beyond the Basics

Here’s the bottom line: Just laws that protect consumers, ensure equal treatment, clean air, and safe communities are only as good as the state attorney general enforcing them. State attorneys general can choose to focus on protecting those accessing and providing reproductive health care, enforcing civil rights, workers’ rights, voting rights, environmental and consumer protections, and defending measures aimed at reducing gun violence. Or they can choose to undermine those rights and protections, and let workers, consumers, and all state residents fend for themselves.

We saw the difference that a state attorney general can make during the last Supreme Court term. The case that overturned Roe v. Wade, Dobbs v. Jackson Women’s Health, was brought to the Court and argued by Mississippi’s state attorney general. On the other hand, state attorneys general from two dozen other states filed an amicus brief urging the Court to uphold the federal constitutional right to abortion. In West Virginia v. EPA, two states’ attorneys general successfully challenged the Environmental Protection Agency’s authority under the Clean Air Act to regulate carbon-dioxide emissions from powerplants, while other states’ attorneys general supported the EPA’s authority to address climate change. Finally, in New York State Rifle and Pistol Association v. Bruen, the New York Attorney General defended the state’s 100+ year gun control regulations, while attorneys general from other distant states argued that those regulations should be invalidated. Next term, state attorneys general are again involved in prominent cases that could dramatically change voting rights in this country, and whether universities can consider race in admissions to ensure that their student body is diverse.

State attorneys general frequently appear before the Supreme Court, representing their states as parties and amici. Their arguments help shape the law and make a difference in our everyday lives. Voters must consider this important work when they have the opportunity to elect the person who will be making these arguments.

Stark Differences that Make a Difference in Our Everyday Lives

The candidates on the ballot for state attorney general frequently present stark differences in what they believe the rule of law is and whom it should protect. Those differences are apparent outside of Supreme Court litigation, in the ordinary state-level work of state attorneys general, and they can be seen in all areas of the law—from how public lands should be used or protected to which consumer protection violations to investigate and prosecute. Where one attorney general seeks more robust enforcement of state civil rights protections and works to overturn wrongful convictions, a different person in the same office will change course entirely. Some candidates have vastly different views on the legitimacy of elections themselves, with some of them openly embracing “The Big Lie,” denying the legitimacy of the 2020 presidential election, while other candidates have fought to protect the will of voters in that election.

A state attorney general candidate’s positions on state and national issues can help inform voters how they would use the resources of the office to engage in affirmative litigation and policymaking, and which state laws, officials, and agencies the candidate would focus on defending and how. Voters must learn more about the candidates before casting their ballots because state attorneys general have tremendous impact on their states, our civil rights, and our lives.

Your Vote for State Attorney General Matters

It is crucial for voters to understand what is at stake in state attorney general races. These races have implications for reproductive rights, civil rights in the workplace, health care and housing, the right to marry the person you love, and whether our voting rights are protected. In sum, most issues that voters care about are implicated in the race for state attorney general. This year, voters in 33 states and territories have a say in who fills this important role, and they must seize the opportunity.

Learn more about the role of state attorneys generals here and here. And please spread the word in your communities and encourage your family, friends, and neighbors to research the candidates and vote for their state’s attorney general and help ensure that the person holding this statewide office is committed to upholding the rule of law and civil rights, and using the law to improve the lives of all people. The office of the attorney general matters, and every vote for the office matters.

Valerie M. Nannery leads the State Attorneys General Project at the American Constitution Society. She previously served as Assistant Attorney General in the Public Advocacy Division of the Office of the Attorney General for the District of Columbia.

Why Americans are Losing Faith in the Supreme Court and Why That’s a Good Thing

On September 1, Pew Research reported that “Americans’ ratings of the Supreme Court are now as negative as – and more politically polarized than – at any point in more than three decades of polling on the nation’s highest court.” This is not a major surprise after a term in which the Court declared itself an active combatant in almost every front of the culture war: abortion, guns, religious liberty, and, soon, affirmative action. Indeed, as a foreigner who has taught constitutional law in the United States since 2018, I have always been more surprised by the Court’s persistent popularity, especially among progressives.

This puzzlement does not stem from the view that the Court is partisan, but that it is – even at the best of times – fairly conservative. If this analysis is correct, then waning public – and progressive – faith in the Supreme Court shouldn’t be feared, but welcomed as a healthy recognition of reality.

The Myth of the Warren Court

Why have progressives placed so much confidence in an institution that rarely advances their interests? The most obvious answer is a rebuttal: the Court has advanced their interests in the past, but it has been led astray by cynical Republicans who have used every dirty trick in the book to pack it with disciples of the Federalist Society.

Arguments like these usually make some reference to the lost legacy of the “Warren Court,” led by Chief Justice Earl Warren between 1953 and 1969. This Court could boast an extraordinary list of landmark cases, on issues ranging from school desegregation and redistricting to the right to counsel and police interrogations. The Warren Court was, according to the LA Times, “in the vanguard of social change.”

However, many of the Warren Court’s landmark cases nudged along or ratified social change that was already in motion. A good example is Gideon v. Wainwright (1963), which required all states to provide attorneys for defendants in criminal cases. Gideon handed a rare victory to a poor man who handwrote his petition to the Supreme Court from a miserable Florida prison cell; it also handed journalists and movie-makers the perfect story of an unlikely hero and a progressive Supreme Court dedicated to the principle of equal justice before the law.

Appealing though this story is, it overlooks the fact that Gideon was supported by twenty-three amicus briefs from state attorneys general and that thirty-five states had already guaranteed a right to counsel in all felony cases. Florida was an outlier and the Court was dragging it into line with prevailing national standards.

The Court was doing the same to the Old South in Brown v. Board of Education. Brown carefully avoided making arguments about unequal educational funding, which would have had national consequences, and the Justice Department supported desegregation because overt racial discrimination was embarrassing the United States on the international stage. Despite its caution and conservativism, Brown brutally exposed the limits of the Court’s power, as coordinated Southern resistance effectively nullified the decision until Congress passed the 1964 Civil Rights Act.

Finally, the Warren Court’s so-called “revolution” in criminal procedure was exaggerated by critics and supporters alike. The most controversial decision of this “revolution” was Miranda v. Arizona (1966), which excluded from criminal trials voluntary confessions that were obtained before defendants were informed of their constitutional rights. Miranda was politically explosive in the 1960s – as conservative legislators accused the Warren Court of taking the handcuffs off the criminals and putting them on the police – but police departments across the country soon realized that the post-Miranda world had its perks. Before, the line between a coerced and a voluntary confession was murky; now, it was clarified by the Miranda requirements, which rejected the American Civil Liberties Union’s more forceful call for lawyers to be present during all police interrogations. A conservative Supreme Court reaffirmed Miranda in 2000.

I would not claim that the Warren Court was overrated or that, in Gerald Rosenberg’s words, it provided only a “Hollow Hope” for social change through judicial action. But the Warren Court was wary of moving too far, too fast, and it undoubtedly relied on allies in the elected branches. It shows us what the Court can do as a junior partner in a progressive coalition – not what it can do as final protector of our constitutional rights and liberties.

Roe v. Wade and the Illusion of a Progressive Supreme Court

Still, the Warren Court attracts so much attention from progressives because it was unusually progressive. Prior to this era, it was conventional wisdom on the left that the Court – and indeed the entire federal judiciary – was stubbornly conservative. It had given aid and comfort to the Southern slaveocracy and its remnants before and after the Civil War; it had elevated “liberty of contract” above reasonable workplace regulations in the early 20th Century; and it had obstructed the New Deal in the 1930s.

Since the Warren era, the Court has largely reverted back to this default conservative setting. After its traumatic confrontation with the Roosevelt Administration over the New Deal, it has been squeamish about interfering with Congress’s commerce powers, but it has chipped away at the criminal procedure “revolution,” gutted the Voting Rights Act, and invalidated bipartisan campaign finance legislation.

There were some exceptions to this conservative restoration, usually enabled by the occasional liberalism of Anthony Kennedy. But the biggest exception, by far, was Roe v. Wade, decided four years after Earl Warren’s resignation. Roe, which swept away the abortion laws of almost every state in the union and created a new constitutional right to abortion, became an enduring symbol of the Supreme Court’s progressive potential, even though progressives struggled to defend its original rationale.

Now that Roe is gone, the illusion of a progressive Supreme Court seems to be slipping away, too. Amid all the pain that the end of Roe will cause, the end of this illusion is a positive development. In many areas, progressives have already turned away from the cul-de-sac of the Court and channeled their energy into an impressive variety of popular strategies.

A good example is capital punishment. In 1976, the Supreme Court backed down from a 1972 decision that effectively suspended the death penalty nationwide, and, although the Court remained willing to curb the death penalty in specific cases, the prospect of judicial abolition has been obviously impossible for at least four decades.

However, if anything, the abolition movement has only gained momentum. Last year, Virginia became the twenty-third state to eliminate capital punishment (twenty-six if we count the three – California, Oregon, and Pennsylvania – with moratoriums imposed by their governors). Executions have been in constant decline across the country since the 1990s, and federal executions had effectively ground to a halt until the vicious lame-duck killing spree carried out by the Trump Administration in late 2020 and early 2021.

As New Hampshire representative Renny Cushing recalled in a 2021 interview with the Broken Law podcast, the campaign to abolish the death penalty in his state was long, tiring, and required collaboration with the victims of capital crimes as well as the perpetrators. But, regardless of whether the institutional mechanism is legislative repeal, executive action, or state constitutional amendment, the abolition movement has achieved similar victories all over the country.

Despite the recent success of abortion rights activists in Kansas, it would be naïve to expect a cascade of popular victories for progressives in state politics. We know too well that state legislatures, in particular, can be tough nuts to crack – stubborn, gerrymandered, and unrepresentative. Nevertheless, the history of the death penalty shows that they can, eventually, be moved, while ballot initiatives, state courts, and – yes, let’s not forget – the U.S. Congress offer alternative avenues for advocacy. Finally, the protests against police brutality in the summer of 2020 (not to mention the original civil rights movement) demonstrated how all of these formal institutions could be shaken up (if not instantly reformed) by riskier and more confrontational tactics in the public sphere.

On big constitutional questions – especially abortion – the Supreme Court has now said that “The People,” not the judiciary, should decide. This call may be disingenuous. After all, the Roberts Court has also shown a taste for judicial activism when elected bodies do things that it doesn’t like. But, for now, progressives should call the Court’s bluff and make use of their large toolkit for action at the local, state, and federal levels. Although this won’t build a better society overnight, at least it won’t be a waste of time.

Harry Blain is an Assistant Professor of Political Science at California State University, Sacramento. He has taught undergraduate courses in California and New York on constitutional rights and liberties, separation of powers, the U.S. Congress, social movements, and international security. Follow him on Twitter @HBlain.  

Hispanic Dreams are the American Dream

This is the seventh piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. You can find additional resources, news, and information about the State Attorney General Project here.

I was raised in the rural Northern New Mexican village of Wagon Mound, a town with a population of 256, where my mother and brother still reside. It is a beautifully unique community, in a beautifully unique state, where our state question is whether you would like red or green chile (with an e) on your meal, and where we are a majority minority Hispanic population among a plethora of culturally diverse communities. It is also a community that, like its state, faces every struggle imaginable, from intergenerational poverty and trauma, to prevalent substance misuse and lack of educational and economic opportunity. A Norteño at heart, I grew up on food stamps and in public housing, in a community that this country too often forgets, and developed a deep conviction that everyone deserves the same opportunities to succeed, regardless of background. From the beautiful struggles of that community, I emerged with a fire and a passion to not only provide for my family, but to bring Hispanic communities everywhere with me. Much like our Latino families from all across the world who risk everything to cross borders to provide a better future for themselves and their families, as the youngest Hispanic statewide elected official in the nation at 33, I know the fear and the insecurity that comes with chasing the American Dream.

What is the American Dream for Hispanic and Latino Families Today?

Having served the State of New Mexico in elected positions for 18 years, now as Attorney General, and in the current political and cultural environments we find ourselves in America, I find myself wondering just what the American Dream means today. In my heart, I believe it is what it has always been—the opportunity to prosper and make a better life for your family. Unfortunately, our dream has always come with a struggle—barriers set up by those who want to pick and choose who gets that opportunity. Nevertheless, those who have been held back from their pursuit of this dream have always persisted, and still do. The time has never been more urgent for us to reject any attempt to smother someone’s dream because of who they are; and we must shoulder the burden of any barrier that is put in their way.

As the Hispanic and Latino population reshapes our country’s demographics in the coming decades, we must continue to do the work to make sure that we are adequately represented in positions of leadership in every boardroom, executive suite, and elected office in the nation. This work has been going on for decades, but the response from the current shrinking majority has been slow at best, and the reality I describe should already exist, yesterday. The reality is that the response, and the restrictive barriers that have come with it, are based on historical fears and misconceptions about Hispanic and Latino culture, a culture that well predates the era of the Statue of Liberty and the era of Zoot Suit Riots, and which sadly continue to persist today. Deliberate distortions, such as Hispanics and Latinos are a drain on the economy, or that we are all immigrants who do not speak English, not only erase our humanity, but they willfully ignore our massive contribution to the fabric of America. My grandfather was a decorated war hero in World War II, yet I still witness marginalization that leaves Hispanic and Latino voices often ignored and silenced in our communities, despite the reality that we are the America in the American Dream, and I am merely one example of how this will change.

Hispanic and Latino values are synonymous with the values of this country—we believe in family, hard work, and supporting all of our communities. We are multiskilled, multilingual, educated, and now more than ever are in a position to change the politics of America to reflect the reality of our presence, our identity as Americans, and to help the country grow stronger than it is today. Despite paying lip service to notions of diversity and inclusion, American institutions still fail dramatically at actually changing to adapt to our reality, but the time is now for Hispanic and Latino leaders to finish the work that has gone on for decades, and to tear down any wall that stops our families and our communities from meaningful participation and achievement of the American Dream.

Breaking Barriers for Future Generations

I have put this identity and perspective into every aspect of my work as an elected official. As Attorney General, I have fought to protect DACA recipients—most of whom are Latino and who came to our country when they were children by no choice of their own, who are now members of our military, teachers, doctors, and healthcare workers serving our communities. I have also fought for humane border policies that prioritize public safety; and I have held accountable private businesses like predatory lenders and for-profit educational institutions that prey on Hispanic and Latino people who are trying to make a better life for themselves and their families. Through this work, my office, and others across the country, has worked tirelessly to provide safe communities for Hispanic and Latino families so that they can truly prosper.

Of course, this work continues, and will continue—I know that as a Hispanic leader, I will not stop serving all of our communities until reality reflects our dreams. I am proud of who I am and where I come from; and I hope that my experience will pave the way for kids who look like me and grew up like me to achieve things I could never imagine. I know they will. I know it because our people are beautifully resilient, smart, passionate, hardworking, and again, we are the American in the American Dream.

Hector Balderas was elected the 31st Attorney General for the State of New Mexico in 2014. He previously served as the New Mexico State Auditor, State Representative, and Bernalillo County Assistant District Attorney. Learn more about Attorney General Balderas and follow him on Twitter @HectorBalderas.

 

Confronting Liberal Islamophobia

Islamophobia, like other systems of bias, operates in both liberal and conservative spaces in American society, albeit in different ways. Islamophobia by conservatives is easily identifiable through hateful speech, hate crimes and support for state national security and immigration practices targeting Muslims.  The absence of such observable factors in liberal circles, however, does not make Islamophobia any less of a problem. To the contrary, the stealth of liberal Islamophobia arguably makes it more insidious.

Liberals proudly boast their support for multiculturalism and pluralism, which purportedly includes Muslims.  Their discourse follows the usual script of diversity, equity and inclusion: religious bigotry, racism, and anti-Muslim hate has no place in liberals’ institutions.  A closer examination of behavior, however, betray those proclaimed values.

Heightened scrutiny, tokenization, double standards, disparate application of policy, and implicit bias are the most common ways that liberals perpetuate Islamophobia—all the while claiming the higher ground in America’s culture wars.  But unspoken bias does not make it nonexistent.

Heightened scrutiny is a telltale sign of discrimination. A Muslims’ words and behavior, unlike that of their counterparts belonging to majority groups, are scrutinized for any clues of incompetence or disloyalty to the institution.  This microscopic treatment is a constant reminder to Muslims of their outsider status.

Muslims’ bodies are surveilled. When did they arrive and leave? What did they wear? Is their body language appropriate according to European Christian norms? Muslims’ words are dissected to test whether they deserve to remain in that space.  To whom did they speak? How often did they speak? What did they say? How did they say it?

Like state surveillance, heightened private scrutiny by neighbors, co-workers, and the public communicate in no uncertain terms to the Muslim that she is not equal to her White counterparts.

Intended to offset allegations of exclusion is the cottage industry of diversity, equity and inclusion (DEI) programs. Liberals’ inclusion of Muslims in DEI, however, is often matched by their tokenization. Muslims are welcome into the space on condition that they follow certain unspoken rules.

The first rule is to never address inequities within and perpetuated by the institution. Even though critical thinking is a liberal value, when racialized Muslims oppose policies or highlight disparate enforcement of those policies along racial or gender lines, they invite the reprimand of White liberal colleagues. Allegations of being divisive or difficult to work with are intended to silence and exclude Muslims from meaningful participation.

That is, a Muslim’s admission into the group is conditional on her support for the status quo. Anything less invites harassment or attempts to expel the Muslim from the liberals’ institutions. Meanwhile, when White colleagues debate important topics, they are perceived as responsibly fulfilling their duties as engaged citizens, parents, and colleagues.

Herein lies the double standards of liberal Islamophobia. While Whites can be absent or critical without scrutiny or threats of expulsion, Muslims must be present and perpetually agreeable. Mistakes by White colleagues are forgiven, even if it violates policy, because their ingroup membership grants them the privilege of receiving exceptions.  White liberals’ transgressions, thus, are interpreted as merely having a bad day, acting rashly, or misspeaking.  They face minimal, if any, consequences for behaving unprofessionally, unethically, or beyond the bounds of liberal values—especially with respect to minorities. But infractions by Muslims (and other minorities) are to be strictly enforced according to policy under the guise of the rule of law.

Never mind that inconsistent application of policies is antithetical to that same democratic principle. Regardless how accomplished or highly educated a Muslim, she does not have the privileges of White counterparts shielded from such indignities.

Together, these various mechanisms of liberal Islamophobia are grounded in implicit biases. Two generations of Americans have been exposed to twenty years of media, political discourse, and government practices that perpetuate stereotypes of Muslims as suspicious, terrorists, anti-American, and outsiders to the national identity. While conservatives explicitly perpetuate these Islamophobic stereotypes in their political ideologies, liberals unconsciously adopt them—which makes it more difficult to name, and in turn, to stop.

For this reason, it is crucial to point out the disparities in responses and treatment between Whites and Muslims’ word and actions.  Are liberals scrutinizing their White colleagues’ behavior and words as closely?  Are they silent when conservative Islamophobes defame their Muslim colleagues, though had the same attacks occurred against White colleagues’ liberals would be calling for civility and accountability.

Be present, perpetually agreeable, and visually diversify our group image. This expectation of minorities, including Muslims, is how liberals coopt diversity, equity and inclusion initiatives while simultaneously distinguishing themselves from political conservatives’ overt racial intolerance.  Neither is acceptable, but liberal Islamophobia should no longer get a pass in a rapidly diversifying America.

Sahar Aziz is a professor of law and Chancellor's Social Justice Scholar at Rutgers Law School, and a visiting professor at Princeton University. She is the author of The Racial Muslim: When Racism Quashes Religious Freedom.

The Role of State Attorneys General in Protecting Workers’ Rights

This is the sixth piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. You can find additional resources, news, and information about the State Attorney General Project here.

State Attorneys General (AGs) are playing an increasingly visible and important role in relation to workers’ rights. Although historically AGs have not been deeply involved in labor matters, since 2015, AG action in this area has mushroomed: ten states have dedicated labor units of various kinds, several jurisdictions have passed legislation granting state AGs expanded jurisdiction allowing them to address labor violations, and many AGs have brought cases to enforce workers’ basic rights.

As the midterms approach, with AG elections occurring in 30 states plus the District of Columbia, it is important to understand not only what AGs do in general, but also what they are doing and can do to protect our country’s workers.

Role of AGs

AGs are the top legal officers in their states. Offices vary considerably in terms of resources and jurisdiction, but some common elements are generally present. They represent state agencies in court and in appeals. AGs play a public advocacy role, enforcing the law in various ways to protect the people of their states, most commonly in areas like consumer and civil rights. Many AG offices also have criminal jurisdiction: a few are the sole criminal prosecutors in their states, like Delaware and Rhode Island, while most have jurisdiction in specific circumstances, such as in particular types of cases or upon request by a district attorney. AGs also issue opinion letters that provide authoritative guidance. AGs have also increasingly become involved in federal matters, suing the federal government (or weighing in to support it) and submitting comments regarding proposed rules. AGs also often propose or support legislation in their states, working together with state legislators. Finally, AGs are highly visible leaders, and they exercise soft power in various ways: authoring op-eds, issuing reports, and more.

AG Involvement in Workers’ Rights Matters

State AGs have pursued employers for wage theft, misclassifying workers as independent contractors instead of as employees, endangering workers, and otherwise violating core workplace protections. AGs have filed civil lawsuits, brought criminal prosecutions, and achieved settlements that collectively recovered tens of millions of dollars for working people. They’ve freed many thousands of workers from non-compete and no-poach agreements, stopped companies from stealing workers’ tips, and achieved other forms of injunctive relief. And they’ve sued to stop federal rollbacks of workers’ rights. Here are some highlights of AG action in the year since Labor Day 2021 (this list is not exhaustive):

Fighting misclassification of workers as independent contractors instead of as employees: The Illinois AG on Friday sued a construction company for violations of the state’s minimum wage, prevailing wage, and employee classification laws. The DC AG filed several misclassification lawsuits, including a drywall construction contractor (ultimately settled for over $1 million), an electrical contractor, a company (Arise Virtual Solutions) that provides customer service to top corporations like Disney and Airbnb; and Jan-Pro, a national janitorial contractor.

Criminal prosecution: The Virginia AGs office obtained a guilty plea to felony embezzlement charges of a drywall contractor who misclassified workers constructing the state's General Assembly building as independent contractors instead of as employees. The Maryland AG obtained a guilty plea from a labor broker in the office's first criminal labor case; a contractor building a state university forced workers to kick back money to him each week. Washington's AG obtained guilty felony theft pleas from business owners who didn't pay wage to 24 employees of their house cleaning business.

Rhode Island's AG obtained a guilty plea in a case involving a janitorial contractor who failed to pay workers and evaded workers' compensation laws in order to win a public contract on community college campuses. Rhode Island's AG has been active in bringing criminal prosecutions related to wage theft; for example, an employer was charged with $93K of wage theft in a prevailing wages case involving construction on a school. The Rhode Island AG also let the effort to pass a bill strengthening penalties for wage theft testifying in a legislative hearing about the proposal.

In addition, AGs have brought prosecutions related to labor trafficking, including in California (related to operators of adult residential and child care companies) and Pennsylvania (minors working on a car detailing business).

Fighting anti-competitive practices in labor markets: New York’s AG obtained a settlement with two leading title insurance companies to stop using illegal no poach agreements; the settlement also recovered $1.25 million. The Illinois AG reached a settlement with Sodexo in which the company agreed to stop using no-hire clauses. The office also pursued staffing companies for wage suppression and anti-poaching policies.

Washington’s AG has engaged in a multi-year effort to stop illegal use of no-poach agreements by franchise chains; a recently-released independent academic study found a significant impact (advertised wages increased by more than 3.3%) specifically as a result of the AG’s initiative.

Paid sick leave: The New York AG’s office brought a case involving New York City home health aides who’d been denied paid sick leave and overtime pay; this joint case with the New York City Department of Consumer and Worker Protection recovered up to $18 million for 12,000 workers. In another case involving a Long Island laundry, the office recovered $400,000 for workers and getting several reinstated after unlawful terminations. The Massachusetts AG recovered $281,000 from an insulation company for paid sick leave and overtime violations. The DC AG’s office has received American Rescue Plan Act (ARPA) funding to support its paid sick leave enforcement.

 Workplace safety at Amazon warehouses: Several state AGs have pursued Amazon for unsafe working conditions. The New York AG’s office has been engaged in litigation against Amazon based on COVID workplace safety; the case has had some ups and downs and is ongoing. The California AG reached a stipulated judgment with Amazon; the AG had filed a complaint alleging that the company failed to notify warehouse workers and local health agencies of COVID-19 case numbers, as required by state law. And Washington’s AG is representing the state Department of Labor and Industries in a case related to ergonomic violations of the state workplace law, resulting in high injuries at Amazon warehouses.

Fighting discrimination and protecting immigrant workers: Many AG offices have focused on protecting immigrant workers. In a landmark case, the Washington AG Office obtained a unanimous federal jury verdict determining that GEO Group, a for-profit prison company, violated state minimum wage laws by paying immigrant detainees as little as $1/day. The company owes workers more than $23 million in back wages and other restitution. The  Illinois AG’s Office has pursued temp agencies for race discrimination, and New York’s AG reached a settlement $500K involving sexual harassment of workers in a New York City bar.

Pandemic related cases (other than workplace safety/paid sick leave): The New York AG recovered $2.7 million for hotel workers laid off without sufficient notice under the state’s Worker Adjustment and Retaining Act, and recovered over $2.9 million for hundreds of Marriott workers denied severance pay promised when they were laid off early in the pandemic. The D.C. AG’s office announced the filing of a lawsuit against a company operating supported living facilities for denying health care workers’ wages owed early in the pandemic.

Ensuring labor compliance in emerging industries: The Illinois AG’s office settled a joint employment case with multiple subcontractors who underpaid workers building the production line for Rivian, an electric vehicle company. And Washington’s AG, along with the state labor department, brought an overtime lawsuit against a cannabis retailer. DC’s AG recovered $2.54 million in a settlement with the platform grocery delivery company Instacart, based on its retention of tips customers intended for delivery workers; the case follows a settlement for $2.5 million with DoorDash for similar violations in 2020.

Federal advocacy: Multistate coalitions of state AGs submitted a comment supporting the proposed rescission of a labor department rule that created an overly broad expansion of a religious exemption from anti-discrimination laws for federal contractors, as well as a comment supporting a proposed rule to allow fiduciaries of private-sector employee retirement plans, such as 401(k) plans, to consider environmental, social, and governance (ESG) factors when making investment decisions. A coalition of states filed a brief before the National Labor Relations Board (NLRB) urging adoption of stronger protections against misclassification. Several states  filed comments in relation to two Occupational Safety and Health Administration (OSHA) proposed rules: in favor of a heat standard requiring employers to implement preventive measures to curb heat-related risks, and supporting a proposed rule to strengthen reporting of workplace injuries and illness.

Expansion of AG authority to include workers’ rights matters: Many AGs can and have used their common law powers or broad statutory authority to bring cases protecting workers’ rights. In recent years, legislation in some jurisdictions has additionally granted AGs explicit jurisdiction to address labor matters. In 2022, bills in Colorado and Delaware expanded state AG authority in this area. Similar laws facilitating AG involvement in labor matters have previously passed in Connecticut, the District of Columbia, Illinois, and Minnesota.

Issuing Labor Day and other reports: Several state AG offices, including California, D.C., Illinois, and Pennsylvania, have already issued their Annual Labor Day Reports for 2022; those reports provide a broad overview of their office’s recent labor work. In prior years, Massachusetts, New York, and Washington have also issued Annual Labor Day reports; reports may be forthcoming for 2022. The Massachusetts AG office also issued a report about its work in the construction industry, and Minnesota’s AG issued a report following a Task Force on the Economic Security of Women, offering a number of policy proposals.

Not all AG action has been in favor of workers’ rights: In addition to the pro-worker action described above, some AGs have sought to thwart positive developments that would improve people’s working conditions. For example, state AGs in a number of states, led by Arizona and Texas, have filed lawsuits to stop a federal rule increasing pay (to $15/hour) for employees of federal contractors. These cases and others that are similar demonstrate why voters concerned about workers’ rights should pay close attention to state AG races in November.

Why aren’t all AGs involved in enforcing workplace laws? This is a very good question! Enforcing workplace laws can be a part of every AG’s docket, just like enforcing consumer protection laws. While some AGs may be ideologically more oriented toward business, it’s helpful to honest companies when labor laws are enforced; otherwise, law-abiding employers struggle to compete with those who save money by violating the law. Other AGs may hesitate simply because their office hasn’t traditionally done this work, but the time is ripe to reconsider: workplace violations are rampant, and the explosion of forced arbitration blocks ever more workers from access to courts, making public enforcement urgent. Some AGs may worry about stepping on toes of state labor departments, but these agencies may come to welcome the backup; also, in many areas (civil rights, environmental protection, etc.), AGs’ enforcement role overlaps with state agency jurisdiction. Finally, AG offices, like all government agencies, face resource and sometimes jurisdictional constraints, but as outlined in the resources linked below, several AGs have found ways to overcome these, or to help workers even within existing limitations.

Conclusion

Some state AGs have begun to play an increasingly visible and important role in protecting workers’ rights. On Labor Day 2022, it is worth celebrating this growing trend, while also noting the tremendous untapped potential that remains for more AGs to take up these issues in a pro-worker and constructive manner.

Additional Resources:

For those who want more detailed information about the role of state AGs in protecting workers, various useful resources are available, including law review articles, think tank reports, and even a webinar:

Law review articles:

Think tank reports:

Terri Gerstein is the director of the State and Local Enforcement Project at the Harvard Labor and Worklife Program, and is a Senior Fellow at the Economic Policy Institute. Previously, she was the Labor Bureau Chief in the New York State Attorney General's Office. She is also an advisor to the ACS State AG Project.