Facial Recognition Regulation – A Year in Review

Over the course of the last year, lawmakers at the federal, state, and local levels have introduced, and in a few notable cases enacted, a variety of proposals to regulate facial recognition technology. These proposals range from all out bans on government use of facial recognition to narrowly drawn prohibitions on very specific uses of the technology. While any given proposal may leave significant gaps in regulation, the combination of federal, state, and local regulation has the potential to form a robust system of protections. Absent sweeping federal regulation—which seems unlikely in the current political climate—continued action at every level of government is needed to protect our civil liberties.

There are good reasons lawmakers have turned their attention to facial recognition technology. For starters, many facial recognition models show significant bias against marginalized groups. Time and time again, studies have shown that facial recognition tools are less accurate when applied to women and people with darker skin, including in commercial systems used by federal law enforcement agencies. Specific uses of facial recognition raise additional problems—such as automated gender recognition, which regularly misidentifies transgender people. As facial recognition technology proliferates, so do the consequences of misidentification, from being denied boarding for a flight to being wrongfully arrested.

Inaccuracy isn’t the only issue with facial recognition, though. Like many technologies promising improved efficiency, facial recognition can act as a force multiplier for already flawed and unjust systems. This is especially true where facial recognition technology is used to match subjects to existing criminal databases—a common use case for law enforcement agencies. Black and latinx people are more likely to be arrested, and therefore more likely to be included in criminal databases, than white people, even where there are similar levels of criminal conduct. When facial recognition is used match images against these databases, the overinclusion bias towards black and latinx individuals is amplified by the power of modern technology.

Even for those individuals fortunate enough to avoid or opt out of facial recognition systems, there is a very real risk of chilling free speech. The chilling effect of government surveillance is well-documented and is backed up by empirical research. Facial recognition technology, in combination with the proliferation of government-controlled video feeds in the form of surveillance and police body-worn cameras, presents concerns of a constitutional dimension. In addition to chilling free speech in contravention of the First Amendment, government use of facial recognition technology may violate the Fourth Amendment guarantee against unreasonable searches and—due to the issues of bias described above—the Equal Protection clause of the Fourteenth Amendment.

Fortunately, progress is being made. At the local level, 2019 was something of a banner year for the regulation of facial recognition. Since January, San Francisco, Oakland, and two Boston area suburbs have banned municipal use of facial recognition technologies. State governments took up the issue as well. California recently enacted a law placing a three-year moratorium on the use of facial recognition with police-worn body cameras. Michigan is considering a bill that would prohibit law enforcement from using facial recognition in conjunction with any real-time video feed. Proposed legislation in Massachusetts would go even further, placing a moratorium on all government use of facial recognition technology without express statutory permission.

Progress at the state and local level doesn’t obviate the need for federal legislation though. After all, a state-by-state or city-by-city approach could leave significant portions of the population without protection from the harms associated with facial recognition. Moreover, only the federal government can regulate federal agencies such as the FBI and ICE, both of which are known proponents of facial recognition technology. In fact, it was the secretive and potentially unlawful use of facial recognition by these federal agencies that prompted a series of hearings in front of multiple congressional committees earlier this year.

Over the course of the 2019, at least half a dozen bills that would limit the use of facial recognition technology were introduced in Congress. However, none of these bills have yet made it out of committee. Moreover, some of these proposals are extremely limited in scope. Take, for example, Senate bill S.2878. Titled the “Facial Recognition Technology Warrant Act of 2019,” it certainly sounds impressive. It seems to check many of the right boxes: a warrant requirement for the use of facial recognition, suppression of evidence as a remedy, and mandatory reports on the extent of government use of facial recognition. However, its scope is limited to the use of facial recognition for “ongoing surveillance,” defined as the tracking of an individual’s physical location for a period of more than three days.

Civil liberties advocates may find the protections provided by S.2878 underwhelming for a couple of reasons. First, the proscribed use of facial recognition—tracking an individual’s physical movement through public spaces—is not yet widespread. Rather, the most common police use of facial recognition is to match images or video stills against government databases. Second, under the Supreme Court’s reasoning in United States v. Carpenter, tracking using facial recognition likely already requires a warrant. This doesn’t mean S.2878 is not helpful; it could take years for courts to recognize constitutional limitations on facial recognition surveillance, and a narrow bill like S.2878 may be more politically viable than omnibus facial recognition legislation. Still, we should recognize S.2878 for what it is: a narrow fix that, constitutionally speaking, is literally the least we can do.

Another federal proposal that is more immediately applicable is H.4021, which would require federal agencies to get a warrant before running facial recognition matches against government identification databases. An even more sweeping proposal is H.3875, which would prohibit the purchase of facial recognition technology with federal funds. However, H.4021 and H.3875 have not picked up bipartisan support, making their prospects for advancement dim.

Ultimately, it seems clear that advancing the causes of privacy, free speech, and equal protection will require a combination of approaches. Local and state governments have proven more responsive to growing concerns about misuse of facial recognition, but federal action is necessary as well to check the power of the FBI, ICE, and other powerful federal investigative agencies. At every level of government, choices must be made about what uses of facial recognition should be prohibited. While real-time facial analysis and physical tracking are certainly dangers to civil liberties, lawmakers must not lose sight of the more mundane, but also more common, uses of facial recognition as well. A complete ban, or at least a moratorium, on government use of facial recognition may be the safest route for the time being—at least where there is sufficient political will for such regulation. Failing that, a robust network of laws regulating various uses of facial recognition technology at multiple levels of government is essential for the protection of our civil liberties.

Research on Graduate Assistants and Right to Unionize Challenges NLRB Proposed Rule

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This originally appeared at Labor Online, the blog of the Labor and Working Class History Association website.

On November 20, 2019, National Center for the Study of Collective Bargaining in Higher Education and the Professions, Hunter College, City University of New York submitted comments to the National Labor Relations Board (NLRB) in response to its proposed rule to exclude graduate assistants and student employees from coverage under the National Labor Relations Act (NLRA).  The comments include history, empirical evidence, and legal precedent.

This year marks the first half-century of unionization and collective bargaining involving student employees in higher education in the United States.  In 1969, the New York State Public Employment Relations Board certified a union to represent a bargaining unit at the City University of New York (CUNY) that included teaching assistants, research assistants, and research associates.

Union representation of CUNY graduate teaching and research assistants has continued until the present day in a bargaining unit that includes faculty and other professionals.  Similarly, teaching assistants at Rutgers University have been continuously represented in a bargaining unit with faculty since the early 1970s.  The longevity and stability of the combined units at the CUNY and Rutgers University undermine claims by other institutions that the unionization of graduate assistants will impair faculty-graduate student relations.

In the same year as the original CUNY certification, a collective bargaining relationship for teaching assistants only was established at the University of Wisconsin-Madison.  Negotiations between the university and the Teachers’ Assistants Association led to a written contract, signed on April 17, 1970, that set the terms of employment for approximately 1,900 teaching assistants. The earliest known certification of a union to represent student food service workers on campus was issued on April 28, 1970 to AFSCME Council 75 for a bargaining unit at the University of Oregon.

Over the next five decades, a large body of state and Canadian provincial legal precedent developed finding that graduate assistants and other student employees had the right to unionize and engage in collective bargaining at public institutions.  In Florida and Missouri, state appellate courts have ruled that graduate assistants have a state constitutional right to organize, underscoring the importance of state constitutions as sources of labor rights.

In contrast, the NLRB has flip flopped over the decades concerning whether the same rights exist under federal labor law.  The last NLRB ruling was in the Columbia University decision, which found graduate and undergraduate assistants had the right to organize.  During the NLRB’s decisional oscillation over the years, it has largely ignored public sector history, precedent, and collective bargaining experience at public colleges and universities.

The purpose of the NLRB’s proposed rule is to overturn the Columbia University decision through regulation rather than adjudication.  If the rule is adopted more than 81,000 graduate assistants at over 500 private institutions will be excluded from NLRA coverage, and it would constitute the largest per se exclusion of an occupation since Taft-Hartley.

In the National Center’s comments we presented data from the United States Department of Labor Bureau of Labor Statistics and the United States Department of Education’s National Center for Education Statistics, demonstrating that the NLRB’s proposed rule would exclude from NLRA coverage at least 81,390 graduate assistants working at 518 private institutions in occupations recognized by those other federal agencies, and treated as distinct from the classification of graduate student.

Our comments examined the terms of 42 current collective bargaining agreements involving graduate and undergraduate student employees in the United States. Ten of the contracts are with private institutions of higher education and the remainder with public institutions.

We found that bargaining unit composition subject to the contracts vary from graduate assistants only (66.67%), units with graduate assistants and professional staff (19.05%), units of graduate assistants and faculty or units of graduate assistants, faculty, and professional staff (2.38%).  Our findings are set forth in Figure 3.

Student Employee Bargaining Unit Composition

We also examined the substantive terms of the 42 agreements.  We found that the most common contract provisions (100%) address wages and grievance-arbitration procedures. The next most common provisions are non-discrimination, and terms of appointment clauses, which are found in 41 agreements (97.62%), followed by management rights and union security provisions contained in 40 agreements (95.24%). Over 90% of the 42 agreements address health care benefits (39), health and safety (38), union access (38), and no-strike clauses are included in over three-quarters of the agreements (32). More than 80% of the contracts have provisions concerning employee leave (37), workload (35), and workplace discipline (35). Academic freedom is specifically addressed in over 30% of the agreements, and intellectual property is a negotiated topic in over a quarter of the contracts. Retirement is a subject in 19% of the contracts. Our findings are set forth in Figure 4.

Graph: The most common contract provisions for student employees (100%) address wages and grievance-arbitration procedures

The deadline for submitting comments to the NLRB concerning its proposed rule regarding graduate assistants and other student workers ends on January 15, 2020. Those interested in responding to the National Center’s comments can submit a reply to the NLRB on or before Wednesday, January 29, 2020.

Executing People with Serious Mental Illness -- Like Wesley Purkey -- Is Wrong

Wesley Purkey is a 67-year old man in rapid decline from Alzheimer’s disease. He also suffers from longstanding multiple serious mental health issues. In and out of psychiatric hospitals since the age of 14, Mr. Purkey has been diagnosed with and/or treated with medication for schizophrenia, psychosis, bipolar disorder, brain damage and more. He has complex Post Traumatic Stress Disorder (PTSD) from the “pervasive and extraordinary childhood physical, sexual and emotional abuse” he endured. One of the psychiatrists who evaluated Mr. Purkey found eleven different categories of childhood trauma; one of them was being repeatedly raped by his own mother beginning when he was just ten years old.

Mr. Purkey is also one of the first prisoners chosen by the federal government for execution after a 16-year hiatus in federal executions. While a District Court granted a lethal injection-related preliminary injunction on November 20, 2019, to the four prisoners with scheduled federal execution dates, the Department of Justice appealed to the U.S. Supreme Court who will make a final decision. Unless the government or a court intervenes to assert that his case is not appropriate for the death penalty, Mr. Purkey faces imminent execution by the Bureau of Prisons on December 13, 2019.

Mr. Purkey believes he knows why he was chosen for execution. According to one of the mental health experts who has evaluated him, for the last five years, Mr. Purkey has held “a consistent belief that there exists a grand conspiracy against him.” He believes he was singled out by the Bureau of Prisons because of the dozens of lawsuits and grievances he has filed. Mr. Purkey believes his legal filings have had a “monumental impact” and that corrections officers admit to him “all the time” that they know his legal filings are the “real reason” he is being executed.

Recently, a psychiatrist evaluated Mr. Purkey’s persistent delusion about why the government scheduled an execution date for him. That psychiatrist definitively concluded that Mr. Purkey “lacks a rational understanding for the basis for his execution.” Instead, “he has a fixed belief that he is going to be executed in retaliation for his legal work.”

This matters tremendously, both legally and ethically. In my past decades of work with the National Alliance on Mental Illness (NAMI), the country’s largest grassroots mental health organization, I specialized in how public policy and the law intersect with mental health issues. These topics can be complex, but the U.S. Supreme Court has made one area crystal clear: a prisoner is not eligible for execution if he lacks a “rational understanding of the reason for the execution.”

In other words, Mr. Purkey’s scheduled execution should not proceed.

The Supreme Court has stated that it does not comport with the U.S. Constitution to execute people whose mental illness or disability, like Mr. Purkey’s, impairs their capacity to rationally understand the nature of the crimes committed or the reasons why the death penalty is being carried out.

Sending confused individuals with severe brain disorders who don’t understand what is happening to them into the execution chamber is incompatible with what the Supreme Court has termed “evolving standards of decency.” That’s not who we are.

As Mr. Purkey ages, his condition is only getting worse. In 2017, Mr. Purkey was diagnosed with dementia, which has now progressed to full blown Alzheimer’s disease. Mental professionals and attorneys have noted his progressive and swift decline.

A psychiatrist who visited Mr. Purkey in 2016 and then again in 2019 noted the “significant deterioration in physical appearance and demeanor,” including the recent development that “the right side of his face is no longer symmetrical with the left side, and only the left side moves when he smiles.”

One psychologist noted that death from Alzheimer’s is typical eight years from diagnosis but can come as soon as three years after diagnosis. Another wrote that Mr. Purkey’s decline should be expected “further and faster” than is typical, given his multiple risk factors for dementia and the low standard of medical care for death row prisoners.

A psychiatrist recently wrote that “the underlying brain damage and mental illness he has are long-standing, irreversible, and will continue to deteriorate as his dementia progresses.”

It is not my intent to excuse Mr. Purkey’s crimes or diminish in any way the pain that he caused to the victim’s family and friends. He has paid a justifiably severe penalty for his crime – incarceration without the possibility of release.

However, the law is clear. It is wrong to execute people whose mental and cognitive disabilities are so severe that they do not understand why they are being killed. The courts must intervene before it’s too late.

Presidential Power and Military Justice: A Tradition of Effectiveness Under Strain

In 1775 General George Washington appointed the first Judge Advocate General in American history. Even before the Colonies declared independence from the Crown, Washington recognized that military law and a mechanism to enforce it would be essential to building the Continental Army. The Continental Congress quickly adopted our first military code – the Articles of War - in large measure a copy of the British Articles of War our early military leaders were familiar with. 

Since that time the military law has always played an important part in ensuring the good order and discipline of United States armed forces and the legitimacy of our military operations. Like Washington, the men who drafted our Constitution recognized that military law would be an essential component of ensuring that the armed forces serving the new nation were well-disciplined, and vested Congress with the authority to, “To make Rules for the Government and Regulation of the land and naval Forces.” From 1787 to 1950, Congress exercised that authority by enacting Articles of War for the Army and for the Navy. The term “Articles of War” is somewhat misleading, for it suggests these established rules of war. This was never the case. Instead the Articles of War established offenses applicable to members of the armed forces (and certain other individuals closely associated with the armed forces) and the procedures for trials by courts-martial (military courts) and other disciplinary actions to enforce these laws. 

These laws were updated periodically, but it was not until after World War II that Congress set about a major revision. This led to enactment of the Uniform Code of Military Justice, or UCMJ. This unification of laws applicable to all U.S. armed forces included major changes to the range of offenses made punishable and the procedures for courts-martial (other major changes, like the requirement that trials be presided over by military judges and the creation of a robust military appellate process analogous to civilian appellate courts were adopted later). Importantly, Congress delegated to the President broad authority to adopt rules of procedure and evidence and to define maximum punishments for those convicted of violating the UCMJ. However, in one of the most important articles, Congress mandated that the rules of procedure and evidence used for trial by courts-martial should generally be analogous to those used in federal district courts, a provision intended to ensure that military criminal process produced credible and fair results and that military criminal defendants receive fair trials when judged against the touchstone of civilian criminal process. 

This delegation of rule-making authority to the President reflects congressional recognition that as Commander in Chief, the President possesses broad and important authority over the armed forces. But this power is not unlimited, especially in the area of military discipline. Instead, the UCMJ reflects an expectation that the President, acting through his or her subordinate military commanders, will utilize the authority established by the UCMJ to promote the pursuit of justice, good order, and discipline. These two interests are not competitive, but instead complementary.  As emphasized in the Powell Report (written several decades ago by a high-level commission established by Congress to recommend amendments to military law), it is a “myth” to consider justice and discipline as competing: “In the development of discipline, correction of individuals is indispensable; in correction, fairness or justice is indispensable. Thus, it is a mistake to talk of balancing discipline and justice-the two are inseparable. An unfair or unjust correction never promotes the development of discipline."Thus, by doing justice commanders enhance genuine discipline. Why? Because the rule of law must define all our military does, whether when engaging an enemy in battle or addressing misconduct within the ranks. 

Today perhaps more than ever our military commanders understand this relationship: that by ensuring accountability for violations of military law through a fair and credible disciplinary and criminal process they enhance good order and discipline in the units they command; and by ignoring misconduct or utilizing fundamentally unfair process they undermine that critical foundation of unit competence. Commanders rely heavily on military legal advisors – licensed attorneys who are also commissioned officers and serve as Judge Advocates – to implement this law and their obligations. These officers and the enlisted paralegal specialists and civilians who all make up each Service JAG Corps’ are the product of training and professional development in military law based on years of experience in aiding commanders navigate the complex terrain of military disciplinary action. The established competence of commanders, JAGs, and the process they utilize has led Presidents to almost always defer to this process when addressing even the most highly publicized incidents of military misconduct. 

President Trump’s recent forays into the details of military justice and other military disciplinary actions is a potentially dangerous deviation from this longstanding practice. Beginning on the 2016 campaign trail, candidate Trump denigrated the military justice system when he lambasted the financial resources wasted to court-martial Sergeant Bowe Bergdahl, a soldier pending general court-martial for several UCMJ violations resulting from his decision to abandon his combat outpost in Afghanistan. Instead Trump called for his execution as a traitor. These comments were deeply troubling, not only because Trump’s demand violated the most basic notions of due process (not to mention that treason is not even an offense in the UCMJ), but because once Trump was elected president they arguably compromised Bergdahl’s ability to receive a fair trial. The military judge presiding in that case ultimately rejected a defense request to dismiss the charges based on the impact of Trump’s incendiary commentary. But the judge also expressed serious concern about how Trump created the appearance of unfairness and specifically indicated he would take the impropriety of this commentary into account when he decided upon the sentence. Bergdahl’s case is still pending appeal and it is unclear how the military appellate courts will treat Trump’s commentary, but one thing is certain: everyone involved in or familiar with the military justice system recognized how dangerous this type of presidential meddling could be for a system that considered improper command influence a “mortal enemy” to due process and military justice. 

More recently, the President has acted to terminate or reverse military justice actions. One case involved Navy SEAL Edward Gallagher who was accused of murdering a wounded and captured ISIS fighter and then taking “trophy photos” with the dead body. From the inception of Gallagher’s criminal prosecution President Trump hailed him as a hero and criticized the decision by his Admiral to prosecute. Nonetheless, the Admiral pressed forward with Gallagher’s general court-martial which ultimately resulted in acquittal for murder (and other serious charges) but conviction for dereliction of duty related to posing with the dead body. The military jury sentenced him to four months’ time served and reduction in rank, but the President intervened and ordered his rank restored. Then, the President intervened again, this time in a routine military personnel action, and directed that the Commander of Naval Special Operations terminate a review to determine whether the court-martial conviction necessitated that Gallagher forfeit his SEAL status.  

In two other cases the President pardoned Army personnel convicted by general court-martial for murder while deployed in combat zones; convictions handed down by military juries based on proof beyond a reasonable doubt after full and fair military trials and upheld on appeal. In yet another case he preemptively pardoned an Army officer pending trial on a charge of first-degree murder for allegedly assassinating an Afghan national. While the context of all these killings indicates they qualified as war crimes, it is the consistent practice of the U.S. military to charge such offenses as violations of the UCMJ, in these cases murder. This is in no way intended to minimize the nature of the offenses or to suggest they were not war crimes.  Rather, it is done to avoid complicated legal issues that might arise if the offenses were alleged as actual violations of international law. There should be no doubt, however, that the context of these acts (or alleged acts) of lawlessness – during combat operations – exacerbates the potentially detrimental impact on good order and discipline flowing from these presidential interventions. 

These cases reveal the limits of the authority provided to members of the armed forces to engage in violent conduct during armed hostilities, or war. That authority is indeed extensive, as the situation of hostilities justifies many acts of violence and destruction that would be prohibited in peacetime. But the authority is not unlimited. When service-members commit acts of violence that fall beyond the scope of the legal justification provided by the international law of war (also known as international humanitarian law or the law of armed conflict) their conduct is criminal and commanders bear a responsibility to take effective disciplinary measures in response. In many cases, this battlefield misconduct violates a provision of one of four Geneva Conventions of 1949, the only four treaties adopted by every nation including the United States. These treaties impose an obligation to prosecute the most serious violations of the international law of war and to take measures to repress all other violations.   

Unfortunately, these cases also reveal the corrupting effect of presidential interventions in the military justice process based on a misguided and poorly informed understanding of the importance of accountability for battlefield misconduct; the very genesis of our military justice system. President Trump’s commentary (asserting that it is illogical and unfair to punish service-members for killing in war after we train them to kill and deploy them to do so) reveals the depth of this misunderstanding. Yes, service-members are trained for and often are required to engage in mortal combat in the fulfillment of their duty. But since the inception of our nation our military (and civilian) leaders have understood that our forces must be both lethal and legal in their actions, and that when violence transgresses the line of legality – even in war – accountability is essential to the preservation of a disciplined force, the honor of our armed forces, and the legitimacy of our operations. While it may be understandable that the President and others are sympathetic to the plight of these defendants – after all they are among a tiny fraction of Americans who volunteer to carry the heavy burden of combat on behalf of our nation – there is a fundamental difference between sympathy and tolerance. By exonerating accused and convicted war criminals, the President unfortunately undermines decades of effort to ensure a solid legal and moral foundation for our armed forces and reinforces the corrosive instinct that war should know no limits.  

The constitutional pardon power vested in the President unquestionably extends to granting pardons and/or clemency to military personnel. But as great military commanders learn through the challenging experience of leading forces in war and presiding over military disciplinary actions, just because something is legal doesn’t necessarily mean it is the right thing to do. The crescendo of disapproval to these presidential interventions to nullify the military justice process voiced by experienced commanders, military lawyers and military legal experts (to include this author), and former senior Defense Department officials indicates how unfortunate it is that the President chose to champion the law breakers instead of the system that assessed their conduct and held them accountable. That system is the product of centuries of experience and rooted in history so deep that it predates our very nation. It is something for which Americans can be rightfully proud and deserves our respect. 

Geoffrey S. Corn, a Lieutenant Colonel, U.S. Army (retired), is the Vinson & Elkins Professor of Law at South Texas College of Law Houston and a Distinguished Fellow for the Jewish Institute of National Security for America’s Gemunder Center for Defense and Strategy. 

The Essential Role of State Courts in Addressing Climate Harms

In her opening statement on the second day of the House public impeachment hearings, former Ambassador to Ukraine Marie Yovanovitch recounted how President Trump and his personal lawyer Rudolph Giuliani undermined the State Department’s ability to “promote stated U.S. policy against corruption.”  “If our chief [diplomatic] representative is kneecapped,” she said, “it limits our effectiveness to safeguard the vital national security interests of the United States. These events should concern everyone in this room.” 

Although this particular instance of the Trump administration’s “kneecapping” of a civil servant who had dedicated her life to safeguarding us may be the most high-profile to date, it is unfortunately one among many. In fact, many of the other civil servants kneecapped by the administration were attempting to implement the environmental and public health protections that are statutorily assigned to their agencies in the face of the greatest national security threat we have ever faced; namely, the climate crisis.  

Such alarming presidential abuses of power bring into sharp relief the importance of other governmental centers of power in our constitutional system, particularly Congress and the federal judiciary. When it comes to the climate crisis, however, the states have thus far been the most important bulwarks against the administration’s systematic hobbling of our basic security. When Trump announced his intent to withdraw from the Paris Agreement—the most important international response to the climate emergency thus far—a coalition of states and cities committed to meeting the country’s international obligations to reduce our greenhouse gas emissions. In myriad instances of unlawful agency action related to climate, state attorneys general have been among those who have filed suit in federal courts, most of the time successfully. And many state legislatures have passed climate legislation. Less high-profile, but also particularly important when federal environmental and public health agencies are kneecapped, is state tort law.  

In the summer of 2017, numerous local governments and one fishing industry trade group began filing state tort suits against Exxon, Chevron, BP, Shell, and other major fossil fuel companies to hold them accountable for contributing to the climate crisis and then misleading the public about it. The plaintiffs are seeking compensation for myriad region-specific climate harms—including current and future damages to infrastructure, land and other natural resources, and community members’ health, property, and livelihoods—caused by sea-level rise, drought, wildfires, ocean acidification, storms of record-breaking severity, and other climate-driven environmental disruptions.

In their public relations messaging, the industry and its trade associations condemn the suits and call for legislation providing them with immunity. The U.S. Chamber of Commerce has called for such legislation at the state level, and the National Association of Manufacturers created an advocacy arm with the sole mission of attacking the state suits. The industry’s fears and concerted efforts to prevent the plaintiffs from having their day in court are hardly surprising. After all, even before the discovery process, the plaintiffs have documentation that the defendants have (1) known for decades that they were contributing to the climate crisis and its devastating consequences, and (2) responded to that knowledge with a concerted disinformation campaign about the climate crisis and its connection to fossil fuel product use and an acceleration of their business to further entrench societal dependence on fossil fuels. Given that three of the suits are poised to begin discovery proceedings and the further revelations of corporate deception and other malfeasance that will undoubtedly be unveiled as a result, the industry can be expected to ramp up its efforts to fight the suits.   

Unquestionably, federal and state legislation is urgently needed to address the climate crisis. But by its very nature, legislation—no matter how robust its protections and well-crafted its provisions—will never obviate the need for state tort law to serve the unique, complementary role in forging corporate accountability and environmental and public health protections that it has long served in the U.S. legal system. 

State tort law has always been an important legal mechanism in this country for holding private actors responsible for misconduct and providing compensation to those harmed by that misconduct. It has become particularly important in serving this role, however, since the mid-20th century, as corporate actors have amassed greater economic and political power coupled with the significant control over information that comes with their sophisticated and often deceptive marketing campaigns. In the 1960s, in response to widespread harms caused by businesses’ mass-marketing of unsafe products, coupled with their use of misleading marketing strategies, state courts began drawing on existing state tort law principles to provide relief to the injured as well as accountability to the public at large.

It’s particularly important that state tort law took on this role because corporate influence had prevented the regulatory system from adequately protecting the public. In state courts, victims found a legal venue in which to seek redress for harms caused by the wrongdoing of various industries, including the tobacco, gun, chemical, food production, and fossil fuel industries. In addition to providing much-needed compensation to the injured, these tort suits forced industries to operate more safely, avoiding future harms. The current climate suits filed by states, cities, and counties all over the country against fossil fuel industry defendants may prove to be the most important example of this function of tort law to date. Though climate harms are of a magnitude far beyond what tort law or any other aspect of our legal system has ever dealt with, the plaintiffs’ allegations regarding the fossil fuel industry defendants’ contributions to those harms are the very sort of corporate malfeasance that state tort law has been addressing for decades now.  

This role of tort law is particularly vital when, as now, a presidential administration continues to kneecap the agencies charged with implementing the climate protections. But even if a new administration committed to responding to the climate crisis is elected in 2020, allowing the plaintiffs their day in court will only strengthen our national response to the climate crisis and will likely provide a critical backstop going forward. More specifically:

  • Any future federal regulation of greenhouse gases is unlikely to compensate current and future victims of the climate crisis, and state tort law can provide some measure of relief; 
  • There will be a continuing need for the sort of information that can be accessed through the civil discovery system, as the nature of both the climate crisis itself, as well as the fossil fuel industry’s attempts to resist giving up the profits of its activities contributing to it, continue to evolve; and
  • In the event that federal targets end up weak or, as now, implementation falters, state tort law can provide a vital safety net for society.

The current era of climate disruption demands not only new and improved governmental mechanisms, but also using current ones that are effective, including state tort law. And when, as now, a presidential administration has disabled our principal mechanism for responding to national emergencies, it is all the more essential to use all the others to the fullest extent possible.

Karen Sokol is Associate Professor of Law at the Loyola University College of Law in New Orleans and a co-author of the Center for Progressive Reform's new report, Climate Justice: State Courts and the Fight for Equity.

DACA at the Supreme Court: Quick Take on Oral Arguments

This was originally posted on Medium.

On November 12, 2019, the Supreme Court of the United States (SCOTUS) heard oral arguments in the case of DACA, or more specifically “Deferred Action for Childhood Arrivals.” The arguments centered on the termination of DACA, not on the legality of DACA itself (though in several ways the two questions are intertwined).

Reading into oral arguments is like reading through tea leaves, but we all tasted something. Take this quick take as but one taste.

First, a good portion of both the questions and the answers wander. The first distraction began with a discussion of a case unrelated to DACA known as DAPA, which is a deferred action policy for parents that was never operational, and ended in a deadlock by the Supreme Court. The government argued that the outcome in DAPA raised “serious doubts” about the legality of DACA. How I wish the irrelevance came out more. The second distraction was the choice by the government to refer to those with DACA as “illegal aliens.” The choice by this administration to use this term against people with DACA, more than a decade of presence, and qualities that are in most ways American is unfortunate. A final distraction (or the one I will raise here) is with regard to size. Justice Alito made size a part of his questions (e.g. p. 72). But ultimately, size is a policy question, not a legal one.

Second, the government argued that there is “simply nothing in the INA” (or “Immigration and Nationality Act”) that allows DHS to use the discretion it did in employing DACA (p. 11). The INA is identified by the government throughout the brief (i.e., DACA rests on a “shadow” INA really? p. 34, p. 36) But the reality is that several provisions of the INA, including most prominently the delegation of authority from Congress to DHS to make immigration enforcement decisions (see section 103) do just this. Other sections of the INA (i.e., 237(d)(4), 242(g)) also identify deferred action by name as do several court decisions including ones by the Supreme Court. These authorities were not drawn out during the arguments. It was also inaccurate for the government to argue that DACA “actively facilitates violations of the law” (p. 33) without a reason or explanation. Further, the government in my view overstated the degree to which Secretary Nielsen articulated “reliance interests” in her memorandum, the “second” memorandum issued by DHS long after its decision to end DACA. (p. 22)

Related: Watch Shoba Sivaprasad Wadhia discuss the DACA case and other Supreme Court cases this term 

Third, the oral arguments had some ironic twists, with the government itself arguing that work authorization and other benefits were simply “collateral.” The irony is rooted in the historic criticism that such benefits are allegedly “conferred” by DACA (which in fact is untrue), but the government’s motivation in making the “collateral” argument was to challenge reviewability, quite a different angle than those immigration law scholars who defend DACA.

See this 2017 letter from immigration law professors and DACA at the Supreme Court: Immigration Law Scholars Brief. I also found it puzzling the degree to which the argument isolated the legality question from their conclusion about “serious doubts” about DACA’s legality. (p. 32). Is this a distinction with a significant difference?

Fourth, the oral arguments also had some bright moments or at least, clarifying ones. Early on, Justice Ginsburg raised the dichotomy of, on one hand, saying the government’s choice to end DACA is unreviewable because it’s committed to agency discretion and, on the other hand, saying that DHS had no discretion because DACA was unlawful. (p.6)

Justice Breyer led with “All right. So I counted,” alluding to the number of people who came in and the number of briefs filed in connection with DACA. He challenged the reliance interests raised by the government. Later, Justice Sotomayor stated that she sees nothing in the INA that “takes away discretion” of the agency (p. 28) and challenged the number of reliance interests not considered by the government. (p. 30) Ted Olson on behalf of the respondents led a strong opening arguing that the decision to end DACA “required the government to provide an accurate, reasoned, rational, and legally sound decision. It utterly failed to do so.” (p. 43) He had some challenging exchanges with Justice Gorsuch.

Olson ended strong with the administration’s failure to provide a rational explanation for ending DACA “instead of just pushing a button …that’s what judicial review is all about.” (p. 65) Mr. Mongan responded forcefully to questions by Justice Kavanaugh concluding that the government has not made a decision “that actually takes ownership of a discretionary choice to end this policy.” (p. 86) Justice Ginsburg highlighted this point concluding that the “From all of that, we don’t know how she [DHS] would respond if there was a clear recognition that there was nothing illegal about DACA. Her whole memo is infected by the idea that this is, one, illegal. It leaves substantial doubt about its illegality.” (p. 88) Justice Breyer also questioned whether the “reasons” by DHS were reasons at all. Justice Sotomayor reminded the parties and the Court about the human stakes of DACA “That this is not about the law; this is about our choice to destroy lives.” (p. 31)

Ultimately, how the Court rules may have nothing, little, or much to do about the oral arguments. However the Court rules, those with DACA should consider the option of renewal and be screened by an immigration lawyer for other possible durable relief under existing law. Finally, the importance of a long-term solution for those with DACA or DACA-like qualities is clear.

NOTE: I have studied the history of prosecutorial discretion and deferred action in particular for years, triggered by experiences filing deferred action requests nearly 20 years ago. You can read more about that and the implications of the DACA termination here: www.beyonddeportation.com Further, I run an immigrants’ rights clinic at Penn State Law in University Park. From the time DACA was announced in 2012, we have served a number of individuals and community members and developed a range of resources available here: https://pennstatelaw.psu.edu/immigration-time-of-trump#DACA/DAP