Preserving Habeas Corpus for Asylum Seekers Just When They Need It Most

Update 10/21: The Supreme Court agreed to review the Ninth Circuit's decision during the 2019-2020 term.

As a protest against the lawless seizure of a person, the ancient writ of habeas corpus is both an impediment to unlawful detention and a defense against the arbitrary exercise of power. Habeas corpus is inscribed in the Suspension Clause of the U.S. Constitution, providing that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." While U.S. courts have long maintained the legal fiction that deportation is not a “punishment” (see, e.g., Nikolaev v. Weber), the considerable constraints on individual liberty and family integrity imposed by the detention and deportation of undocumented immigrants are undeniable. The penal quality of the statutory framework for U.S. immigration enforcement is all the more real to individuals impacted by fluctuating deterrence policies at our Southern border since 2016. In the face of higher and compounding barriers to protection, asylum seekers today are at increased risk of unlawful denials of their rights to humanitarian protection and non-refoulement. Just as it does for those facing wrongful convictions and unfair trials, habeas corpus safeguards the liberty of those facing wrongful deportations and unfair denials of asylum. The Ninth Circuit’s decision last Thursday in Thuraissigiam v. U.S. affirms habeas as a bridge to asylum in the United States for individuals who flee and fear persecution.

On March 7, the Ninth Circuit ruled that asylum seekers facing deportation have the right to challenge the summary denial of their asylum claims in federal court. The ruling in Thuraissigiam applies to individuals who have failed to establish a “credible fear of persecution” in expedited removal proceedings conducted at the border. The Ninth Circuit found unconstitutional the statutory provision barring habeas relief for final orders of deportation. While the panel members “d[id] not profess to decide in this opinion what right or rights Thuraissigiam may vindicate via use of the writ,” they upheld the right of rejected asylum seekers in expedited removal proceedings like petitioner to enhanced access in the federal courts to relief from unlawful deportation. Thuraissigiam is a bell-weather decision because it affirms the due process rights of asylum seekers under U.S. law in the very historical moment in which they face ever heightening impediments to international refugee protection in the United States.

Since ratifying the Protocol Relating to the Status of Refugees in 1968, the United States has recognized the right of refugees to seek asylum from persecution. The U.S. government also acknowledges that it may not forcibly return refugees to persecution (Refugee Protocol, art. 33, norm of non-refoulement). These international rules – the refugee’s right to seek asylum and the U.S. obligation not to deport refugees to persecution – were incorporated into U.S. law in the form of the 1980 Refugee Act (8 USC 1158(a) and 8 USC 1225(b)). Alongside the right of asylum and the bar on refoulement, both U.S. law and international law further recognize that refugees cannot be disfavored because of the circumstances in which they seek asylum, including the lack of valid identity and travel documents or the irregular manner in which they cross a border, since such is the nature of flight from persecution. Under the Refugee Protocol, states “shall not impose penalties, on account of their illegal entry on refugees” (art. 31). The prohibition against penalizing undocumented refugees is incorporated into U.S. law in the Immigration and Nationality Act provision permitting refugees to apply for asylum “whether or not at a designated port of arrival” (8 USC 1158(a)(1).

Despite acknowledging the right of refugees to seek asylum in irregular circumstances, over the past 40 years undocumented asylum seekers in the United States have faced a succession of additional hurdles in making their asylum claims. Since the 1996 amendments to the Immigration and Nationality Act (INA), expedited removal proceedings have been the rule for individuals apprehended at U.S. border crossings without valid entry documents. In particular, the INA (8 USC 1225(b)) requires asylum seekers in expedited removal to meet a threshold test for asylum before gaining access to immigration court. Thus asylum seekers stopped at ports of entry or who surrender themselves to Border Patrol officers upon or after crossing the border are required to establish a “credible fear” of persecution (8 CFR sec. 208.30(e)(2)), but asylum seekers who are denied at the “credible fear” stage – unless they are successful in on-the-spot supervisory appeals or in summary review by an immigration judge – will be expeditiously deported. Asylum seekers who fail to pass through the gateway of credible fear are deported without ever having the opportunity to fully establish their claim for protection from persecution in immigration court.

Credible fear and expedited removal procedures risk offending the spirit of the international prohibition against penalizing refugees for the very exigent circumstances in which they flee. But errors in expedited procedures – where bona fide refugees are mistakenly found not to have a credible fear – result in the violation of U.S. law while offending the international prohibition against forcible return to persecution (INA section 235(b) and Refugee Protocol, art. 33). Such risks have been the reality for asylum seekers at our Southern border for over 20 years. But alongside this longstanding and complex regulatory framework, administration actions by the Trump Administration have further complicated asylum seekers’ efforts to access their right to humanitarian protection in the United States.

Newer impediments to refugee protection in the U.S. include two executive orders currently enjoined by federal courts: one purporting to limit asylum claims to authorized ports of entry; and another requiring Southern border crossers to “wait in Mexico” while their asylum claims are adjudicated. Recent policies purporting to burden asylum seekers also include a 2018 US Attorney General directive, successfully challenged in federal court, disfavoring asylum claims based on domestic violence and gang-related violence. Compounding such challenged executive actions, asylum seekers must also adjust to shifting enforcement trends by some Border Patrol officers: such as the arbitrary establishment of limits on the number of individuals who will be processed for asylum at particular entry points on particular days; or the provision of misinformation to asylum seekers improperly advised that asylum applications from particularly countries are no longer being processed at particular border crossings.

Thuraissigiam comes in response to this plethora of longstanding and more recent provisions and policies burdening the right to seek asylum. Vijayakumar Thuraissigiam was denied the opportunity to establish the full merits of his asylum claim due to a determination that he lacked a credible fear of persecution in the context of his expedited removal proceedings. The ACLU Foundation and ACLU Immigrants’ Rights Project of San Francisco, New York, and San Diego brought suit in federal court on his behalf. In finding for Mr. Thuraissigiam, the Ninth Circuit establishes the right of asylum seekers in expedited removal proceedings to an essential measure of due process through the constitutional writ of habeas corpus.

Litigation to Enjoin the National Emergency Declaration: An Overview of Alleged Injuries and Related Proof Issues

There are already six lawsuits challenging President Trump’s February 15 declaration of a national emergency (“the declaration”). Five of the six suits plead similar facts and legal theories and essentially seek the same relief - a declaratory judgment that the declaration is unconstitutional and/or unlawful and an injunction against its implementation.

These five complaints delineate, in varying detail,

recent legislative history of border wall funding, in which the 115th and 116th Congresses repeatedly denied Trump the varying amounts of funds he demanded for his wall;
the latest shutdown (December 22, 2018 - January 25, 2019), during which Trump expressed changing and contradictory positions about declaring a national emergency;
trends in data about undocumented immigration, drug-trafficking, and other criminal activity purportedly caused by undocumented immigrants;
specific harms to be suffered by individual, governmental, and nongovernmental-organization plaintiffs (“NGO plaintiffs”) from diversion of funds from appropriated purposes to building additional lengths of wall;
harms ensuing to various plaintiffs from the actual construction of additional lengths of wall in specific geographical areas;
Constitutional and statutory issues raised by the declaration; and
demands for declaratory and injunctive relief from the national-emergency declaration.

The sixth suit - not examined here - is Citizens for Responsibility and Ethics in Washington (CREW) v. U.S. Department of Justice (D.C. District Court). It has a different legal premise and goal: it’s a FOIA lawsuit to obtain the opinions of the U.S. Department of Justice’s Office of Legal Counsel on the power “...of the president to invoke emergency powers to declare a national emergency including, inter alia, the president’s power to invoke these powers to build a wall or other type of barrier along the U.S. border with Mexico.” (The CREW complaint is here.)

The purpose of this overview is to summarize the primary injuries alleged in the five suits similarly seeking declaratory judgments and injunctive relief and highlight where proof issues range from simple to complex. Litigating public policy decisions and their implementation can require substantial expertise in cases comprising short- and long-term environmental, economic, and social issues, with accounting, budgeting, and organizational-management consequences for diverse individual, organizational, and governmental stakeholders.

This review aims to provide readers with a clearer sense of how specific injury claims might have slower or quicker paths to partial or complete judicial resolution. Because this is a summary, it omits details that might be particularly valuable to certain readers. I hope I have provided enough information about the lawsuits, so readers can find the complaints of most interest to them.

One additional disclaimer is warranted: the overview offered here of alleged injuries is necessarily only a first impression and a time-constrained snapshot: over the course of litigation, all of the complaints probably will be amended (except, perhaps, the very specifically focused CREW complaint). Lawsuits frequently mutate and adapt as they navigate motion practice, discovery, evidentiary hearings, and judicial rulings. As the lawsuits progress, plaintiffs may, for example,

add or remove parties and claims;
modify, supplement, or delete pled facts of continuing injuries;
add allegations of new injuries;
update the legislative history of the declaration as it progresses through Congress and to and from the White House; and
refine or change the legal theories undergirding the suits as parties and facts change.

It also seems likely that new suits will be filed to address alleged injuries and theories different from those pertinent to the filed suits. The universe of harms alleged in the suits to date, while broad, is probably less than comprehensive.

All that said, here are the five similar lawsuits. (NB: the following list provides citations to paragraphs in each complaint that quote Trump sabotaging his declaration by saying, “I could do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster.”)

California, et al, v. Trump, et al (the multi-state suit filed in the Northern District of California); Complaint here, here, or here. See ❡ 160.
El Paso County, Texas and Border Network for Human Rights v. Trump, et al (Western District of Texas, El Paso Division); Complaint here. See ❡ 10.
Alvarez, et al, v. Trump et al (District of Columbia); Complaint here. See ❡ 31.
Sierra Club and Southern Border Communities Coalition v. Trump, et al (Northern District of California, San Francisco-Oakland Division); Complaint here. See ❡ 56.
Center For Biological Diversity, Defenders Of Wildlife, and Animal Legal Defense Fund v. Trump, et al (District of Columbia); Complaint here. See ❡ 2.

As originally filed, only two of these five similar complaints included governmental plaintiffs: the California suit, comprising only States and State officers (e.g., State attorneys general), and the El Paso suit. In the other three suits, the plaintiffs are individuals, individual NGOs, or coalitions of NGOs, as in the Sierra Club and Center for Biological Diversity suits.

Summary Of Injuries Alleged In The Complaints

(These are summarized from California, et al, v. Trump, et al, at ❡❡4-5; El Paso, et al, v. Trump, et al, at ❡❡ 85-105; Alvarez, et al, v. Trump et al, at ❡❡ 2, 5-13, 18; Center For Biological Diversity, et al, v. Trump, et al, at ❡❡ 15-16; and Sierra Club, et al, v. Trump, et al, at ❡❡11-19.)

The complaints present a mix of overlapping damages-claims in which the following appear to be leading themes:

private landowners allege they will suffer invasion of their property and disruption of their private use and enjoyment of their property from wall-construction;
environmental NGOs’ individual members allege they will suffer reduction/degradation of their enjoyment of environmental amenities from wall-construction;
environmental NGOs allege that their overarching organizational goals for environmental protection, management, and sustainability will be frustrated and obstructed - locally, by construction through, and disruption or destruction of, sensitive habitats and, more generally, by harm to larger ecosystems of which the local ecosystems are a part;
border-community NGOs allege that their efforts to reduce friction among and between border communities and government agencies in charge of border-control and immigration will be frustrated and/or obstructed;
local and state governments allege that they will directly lose funds for public purposes like drug interdiction and military construction projects, with additional economic injury ensuing from losses of funds that would, without the declaration, be injected into state and local economies; and
border communities (e.g., El Paso) allege economic injuries from reductions in tourism, relocation, and investment from the reputational and physical harm/disruption they suffer from the declaration and any attendant wall-construction.

Additionally, the NGOs and governments allege that they will have to re-allocate organizational funds and personnel, and adjust programmatic priorities to deal with new challenges posed by litigating and opposing, and/or coping with and adapting to, construction of more lengths of wall.

Proof Issues

From a litigation perspective, some of these alleged harms appear relatively easy to prove:

the environmental NGOs’ members’ use-and-enjoyment-of-environment injuries, especially those related to access to areas blocked by proposed new wall-construction;
the quantifiable losses of funds by state and local governments that were Congressionally appropriated specifically, or generally intended, for distribution for use in law enforcement, military construction, and other governmental projects;
the quantifiable diversions of NGO funds and personnel from other organizational priorities to the purpose of preventing construction of the additional lengths of wall; and
the individual landowners’ injuries from construction on and through their property (partly or entirely amenable to money damages in condemnation proceedings).

These four kinds of alleged injuries seem relatively amenable to incorporation in affidavits in support of partial or complete summary judgment, depending on the suit and parties’ claims. Partial summary judgments would be a way for plaintiffs to bring their cases relatively quickly to resolution by the Supreme Court, where all of this litigation is likely heading.

Partial summary judgment for plaintiffs in each of these suits on any of these less challenging proof issues might shorten the time to a declaration and injunction. Of course, this probably does not apply to the individual landowners’ claims, which might be susceptible to money-damages remedies in lieu of injunctive relief.

Other alleged injuries present more challenging proof issues. These will result from actual implementation of the national-emergency declaration. These issues include the adverse short- and long-term impacts resulting from construction of more wall: e.g., environmental damage, private and public economic injury, and law-enforcement degradation. And - for want of better terms - there are alleged “community-impact” and “organizational-impact” injuries to the state and local communities and NGOs. These can include opportunity costs associated with re-prioritizing public- and private-sector organizational goals and re-allocating funds among different public- and private-sector budgeting priorities.

Expert testimony at evidentiary hearings appears necessary for this latter group of issues. Plaintiffs will want to call experts in environmental science, law enforcement outcomes, community development, government finance and budgeting, and economics.

Economists will be helpful in providing evidence on, among other things, loss of economic multiplier benefits to states and localities from losing appropriated federal funds that would be spent by the federal government or state and local governments on projects within their borders. Among the matters NGO and government plaintiffs also might try to prove is the additional cost of finding alternative short-term and long-term funding for initiatives they might have to forego without the appropriated funds, including the predictable short- and long-term financing costs of alternative sources of funds.

Next, we will probably see plaintiffs in one or more of these suits seek summary judgment on all or some of their claims. Tactically, even partial summary judgment in one of these districts could yield a nationwide injunction that would stop implementation of the declaration.

Regardless of how the litigation proceeds, it’s important to remember that the ultimate solution to the wall is legislative. Veto-proof supermajorities in both chambers of Congress must reject this absurd project to defeat it.

The Promise of Progressive Federalism: ACS’s 2019 Program Guide

Every year, ACS publishes a guide for our lawyer and student chapters around the country to use in planning events. The guide offers an overview of a specific legal issue, provides resources for those seeking more in-depth analysis, and identifies experts who can serve as possible speakers. The following excerpt is from the introduction of the 2019 Program Guide: Progressive Federalism.

Nearly a century ago, Justice Brandeis, speaking of the division of power between the federal government and the states enshrined in the U.S. Constitution, famously wrote that “[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”[1]

This notion of the states as “laboratories of democracy” is rooted in the Tenth Amendment’s directive that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” At a time when the federal government seems single-mindedly dedicated to revanchist policies, these laboratories of democracy could offer a path toward more progressive policies in a range of areas.

Reclaiming Federalism

Federalism’s Dark History

While the Tenth Amendment provides a potential framework for a progressive federalist agenda, too often it has been invoked to promote a vision of states’ rights that justifies some of the most horrific actions in our country’s history. Supporters of the “Lost Cause” narrative, for instance, argue that the Civil War was fought over states’ rights and not slavery. Historian Paul Finkelman, however, points out that when South Carolina seceded from the Union over states’ rights, “the specific right in question concerned the ownership of human chattel.”[2]

One of the South’s main complaints was that “the northern states would not vigorously cooperate in the return of fugitive slaves...In other words, for South Carolina, slavery and states’ rights were not mutually exclusive; in fact, they were the same thing.”[3] Nearly one hundred years after the end of the Civil War, states were still using states’ rights arguments to defend discrimination against African Americans in the form of Jim Crow laws.[4] And only a few years ago, the Supreme Court relied on federalism and states’ rights arguments to gut the Voting Rights Act and remove a vital protection against minority voter disenfranchisement.[5]

Federalism’s ugly past, however, does not have to be federalism’s future.

Some argue that federalism is morally neutral, has no political valence, and, in fact, can be used to further progressive policies.[6] This can be seen in areas as diverse as state decriminalization of marijuana and state programs to expand the availability and affordability of health insurance through the Affordable Care Act.[7] In the face of federal recalcitrance, “progressive federalism empowers democratically accountable governments to meet the needs of the people while ensuring human rights for all” in a variety of areas, including immigration, voting rights, the environment, and police accountability, all of which ACS’s 2019 Program Guide examines in more detail.[8]

Federal Preemption

A federal government hostile to state and local progressive policies has its own powerful tool in the Supremacy Clause. Federal preemption—the idea that federal law displaces state law when the two conflict—is rooted in Article VI of the U.S. Constitution, which states, “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.”

Relying on the Supremacy Clause, the Supreme Court has noted that “any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to federal law, must yield.”[9] Therefore, “state laws that ‘interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution’ are invalid.”[10]

The Supreme Court has extended this doctrine to local ordinances as well, holding, “the constitutionality of local ordinances is analyzed in the same way as that of statewide laws.”[11] In short, when Congress passes federal laws while acting within its constitutional powers, any state or local laws that are contrary to or otherwise in conflict with federal laws are deemed preempted and therefore invalid.

Federal preemption comes in two forms: express preemption and implied preemption.[12] Express preemption exists where “Congress includes within a statutory scheme a provision that explicitly directs that state law shall be preempted.”[13] In contrast, implied preemption occurs when Congress is silent as to where it intended to preempt state law, but its actions either evince an intent to preempt or are wholly incompatible with state action.

These two types of implied preemption are known as field preemption and conflict preemption.[14] Field preemption occurs when “Congress has chosen to oust the states from a given regulatory arena, to permit an exclusively national and unitary regulatory regime to function.”[15] Conflict preemption occurs where “‘compliance with both federal and state regulations is a physical impossibility,’ or where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’”[16] States and the federal government can—and often do—come into conflict when it is unclear what Congress intended or whether a state’s policies directly conflict with federal policies. In these cases, federal courts must step in and resolve these disputes.

ACS's 2019 Program Guide will highlight four areas where federalism may permit states and localities to pursue progressive policy goals: immigration, voting rights, environmental policy, and police accountability. It will also consider some of the arguments for and against preemption that the federal government, states, and cities may raise in pending or anticipated litigation seeking to resolve preemption disputes.

Check out the full 2019 Program Guide here.

[1] New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandies, J., dissenting).

[2] Paul Finkelman, States’ Rights, But to What?, N.Y. Times (Dec. 20, 2010, 9:00 PM).

[3] Id.

[4] Heather Gerken & Joshua Revesz, Progressive Federalism: A User’s Guide, Democracy J. (2017).

[5] See Shelby Cnty. v. Holder, 570 U.S. 529 (2013).

[6] Gerken & Revesz, supra note 4.

[7] Id.

[8] Robert A. Schapiro, Not Old or Borrowed: The Truly New Blue Federalism, 3 Harv. L. & Pol’y Rev. 33, 40 (2009).

[9] Gade v. Nat’l Solid Wastes Management Ass’n, 505 U.S. 88, 109 (1992) (citation omitted).

[10] Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 604 (1991) (citation omitted).

[11] Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc. 471 U.S. 707, 713 (citation omitted). While ACS’s 2019 Program Guide focuses on the relationship between the federal government and states and between the federal government and cities, there are also preemption issues at play between states and cities themselves. For a discussion of this topic see Richard Briffault et al., The Troubling Turn in State Preemption: The Assault on Progressive Cities and How Cities Can Respond, ACS Issue Brief (Sept. 2017).

[12] Gade, 505 U.S. at 98.

[13] S. Candice Hoke, Preemption Pathologies and Civic Republican Values, 71 B.U. L. Rev. 685, 700 (1991); see also Betsy J. Grey, Make Congress Speak Clearly: Federal Preemption of State Tort Remedies, 77 B.U. L. Rev. 559 (1997).

[14] Hoke, supra note 13, at 700.

[15] Id.

[16] Gade, 505 U.S. at 98 (citation omitted).

H.R. 1: No Lawmaker Should Fear Eligible Voters Voting

UPDATE: H.R. 1 passed the House on March 8, 2019.

Democrats finally get it. After years of watching Republicans grab power and change the rules in their favor, Democrats have recognized that micro-policy responses are not good enough. Timed perfectly as Republicans were caught trying to steal a congressional seat in North Carolina, the Democrats are pushing a bill that would unrig democracy for everyone. Rather than a set of incremental policy proposals, H.R. 1 envisions systemic change.

H.R. 1 is an ambitious bill that protects democracy

It seeks to entrench democracy by modernizing and securing our voting system and strengthening voting rights, ending the dominance of big money in our politics, and enacting tougher systems to hold our public officials accountable and ensure they work for the people.

Here are a few of the highlights. The bill:

Implements automatic and same-day voter registration
Makes Election Day a holiday
Imposes a requirement on candidates for president to disclose their tax returns
Provides a match for small donations to campaigns
Makes it illegal for companies with significant foreign ownership to contribute to campaigns

But the Republicans will have none of it. According to Republican Senate Leader Mitch McConnell, “They’re trying to clothe this power grab with clichés about ‘restoring democracy’ and doing it ‘For the People,’ but their proposal is simply a naked attempt to change the rules of American politics to benefit one party. It should be called the Democrat Politician Protection Act.”

Despite what Republicans allege, this bill isn’t designed to protect Democrats. Instead, it protects democracy.

Attacks on democracy in North Carolina: Election fraud and obstacles to voting

North Carolina provides a snapshot of how Republicans have been seeking to subvert the democratic process around the country. It’s February 2019 and there’s a North Carolina House seat that still has not been filled after the November 2018 election. A new primary and general election is in the works after it was revealed that Mark Harris, the Republican candidate, achieved his apparent victory through fraudulent practices relating to absentee ballots.

Harris’s consultant, Leslie McCrae Dowless, Jr., has been accused of working with his stepdaughter to contact people who had applied for absentee ballots (which in North Carolina is public information) and offering to take the ballots from them, fill them in, and deliver them. On February 18, the head of the state board of elections, Kim Strach, informed the other members of the board that Dowless had distributed money to people to gather the ballots, which is a felony in North Carolina. Did these activities rig the election enough to require a do-over? The answer is yes.

Dowless was a known quantity who had already faced charges regarding absentee ballots in 2016 – and his tactics reveal something about how conservatives have been operating for some time, with an avowed determination to rewrite the rules of democracy in their favor. In 2008, Barack Obama defeated John McCain. It was an historic election nationally, but particularly so in North Carolina, which seemed to be trending blue after a turbulent, racist past. But the vote was close, and ever since, North Carolina has been a partisan battleground, with Republicans increasingly winning the upper hand. The momentary rise of the Left in 2008, buoyed by a charismatic candidate, masked how conservative forces had been plotting to hold power for the long term and thwart any move to expand democracy.

In 2010, Republicans recaptured both houses of the North Carolina state legislature and in 2012, the governorship. With total control of the state’s government, Republicans focused on locking in their power. They started by rigging election rules in their favor in one piece of legislation, dubbed the “monster law,” that changed the board of elections; redrew district lines to benefit the GOP; and made it harder to vote by limiting early voting, requiring photo IDs, and adding hurdles to the registration process, all with an eye to limiting access to the polls for people of color who tend to vote Democratic.

The Republicans even altered historically nonpartisan judicial elections to add party affiliation and gerrymandered those districts as well. While the courts have slowed down the efforts at racial and partisan gerrymandering, a couple of court decisions should not lead us to believe that the Right’s plan has failed. Even the election of a Democratic governor has done little to inhibit Republican efforts to rig the rules – Dowless is exhibit A.

State Republican lawmakers have pursued an agenda of voter suppression

Voter suppression and gerrymandering have given the Right the upper hand across the country. After the 2016 elections, Democrats hit a low in state legislatures they haven’t seen since Warren Harding was President in 1921. Republicans control 56 percent of state legislative seats, having made significant gains during the presidency of Barack Obama.

Over the course of Obama’s two terms, Republicans added almost 1,000 state legislative seats, gaining control of 67 of the 98 partisan legislative chambers. By 2017, in 24 states, Republicans had the governorship in addition to both legislative chambers while Democrats held total control in only five states — Hawaii, California, Oregon, Connecticut, and Rhode Island. While the 2017 and 2018 elections offer hope that the one-party nation has not yet arrived, a visceral and possibly transient anti-Donald Trump reaction is not going to fix our problems.

Republicans in key states across the country have been working feverishly to suppress the votes of those who might cast a ballot against them. That’s the whole purpose behind cynical campaigns for voter ID laws, the closing of polling locations in Democratic strongholds, and the elimination of early voting programs. They have also crafted a system that feeds incredible amounts of money into their campaign coffers, all of which is hidden from public view.

Stricter enforcement of campaign laws would tear open this rigged system, so the public could see who is actually providing the big bucks to help elect Republicans these days. Think Big Oil, anti-LGBTQ groups, anti-immigration groups, the NRA and, dare I say, monies funneled from foreign governments through third parties.

It’s a sad reflection on today’s Republican Party that they deem measures to protect the franchise and ban corruption “partisan.” It’s also very telling that the GOP views allowing more people to vote and stricter enforcement of campaign finance laws as a threat to their power. At the end of the day, Republicans have admitted that they can’t win without voter suppression and the assistance of dark money. Perhaps that’s because for several election cycles now, voter suppression and playing fast and loose with campaign finance law have been two key hallmarks of their electoral strategy.

No elected official should fear more eligible voters voting. It’s time to unrig the rules and fix our democracy. North Carolina shows how one party can manipulate the rules to lock in partisan gains. H.R. 1 would make sure the United States doesn’t go down that path.

Trump Administration Scores 0 Out of 10 on Title X

There’s a reason that birth control is considered one of the ten great public health achievements of the 20th century. Birth control allows women to plan and space their pregnancies. It helps women protect their health, meet their educational and employment goals, and support their families. Avoiding closely spaced pregnancies also reduces the risk of premature birth and low birth weight, and preventing unintended pregnancy can help women manage certain health conditions, such as diabetes, hypertension, and heart disease. That’s why the Title X program, which for decades has provided high-quality family planning services to low-income individuals across the country, is so important. It’s also why the administration’s attack on Title X is so devastating.

On February 22, the Department of Health and Human Services released a copy of its finalized “domestic gag rule,” which makes sweeping and damaging changes to the Title X program. The gag rule is the latest in a number of attacks on women’s health by the Department of Health and Human Services, which has been stacked with political appointees determined to dismantle women’s access to reproductive health care. The domestic gag rule recycles bad ideas from an old playbook: the rule reintroduces and expands upon provisions of a Reagan-era Title X rule that was never fully implemented and was suspended by presidential memorandum only a few years later. Then, as now, the rule was bad policy.

Among the rule’s most troubling new program provisions:

Title X health care providers are prohibited from referring for abortion care. In a blatant violation of medical ethics, the final regulation prohibits providers from giving a referral for abortion care. If they so choose, physicians and advanced practice providers are permitted, but not required, to instead provide a list of comprehensive primary health care providers, some but not the majority of which may be abortion providers. Neither the list nor the health care provider may identify which of the providers listed performs abortion services.

A requirement for strict physical and financial separation of Title X services from abortion services. This means that Title X grant recipients that also provide abortion care may be required to undergo expensive construction, or even build entirely separate facilities, to comply with the regulation, which suggests that compliance would require separate entrances and exits, separate staff and waiting rooms, and separate medical records, among other burdensome and costly requirements.

A shift away from medically proven contraceptive services toward abstinence-only education and faith-based, antiabortion counseling centers. The final rule rescinds a prior requirement that the range of family planning methods to be offered be medically proven, opening the door to funding grantees that refuse to offer a broad range of FDA-approved contraceptive methods. The rule also rescinds a prior requirement that all Title X funding recipients offer information and counseling to pregnant patients regarding prenatal care and delivery, infant care, foster care and adoption, and abortion, allowing providers to withhold basic information about a pregnant woman’s health care options.

In rulemaking, agencies are required by law to engage in a substantive cost-benefit analysis of the impact of the rule they are crafting. But despite hundreds of thousands of comments submitted in opposition to the proposed version of the rule, and vocal opposition from more than 100 family planning and public health organizations, the final rule fails to consider adequately the substantial harms the rule would cause, or provide a coherent reason for why this rule is needed.

The Title X program currently serves more than 4 million low-income, uninsured, and underserved clients, including communities of color, immigrants, LGBT patients, and rural residents who may otherwise lack access to care. In 2015, Title X-funded clinics helped women avert 822,300 unintended pregnancies, in addition to providing services that include STD and HIV testing, breast and cervical cancer screenings, and infertility services. Six in ten women receiving Title X services have reported that a Title X–funded health center was their usual source of medical care, and four in ten reported it was their only source of care. For some of these women, this rule threatens to eliminate their sole entry point into the health care system—all because this rule may force providers that are unable or unwilling to comply with its unreasonable requirements to close their doors.

The Department of Health and Human Services is tasked with enhancing and protecting the health and well-being of the public and providing for effective health and human services. With this rule, HHS has fundamentally failed in its mission —and has failed millions of women who have a right to, and an urgent need for, quality health care.

Against Establishment Clause Concession: Judicial Strategy in the Bladensburg Cross Case

This blog was originally posted on Take Care.

The Bladensburg Cross case is discouraging for liberals, progressives, and church-state separationists on many levels. The most obvious is that the Supreme Court is likely to uphold state displays of symbols that are clearly and irreducibly sectarian. And in doing so, the Court will undermine a fundamental principle of disestablishment, which is that the state may not favor one religion over another.

It seems clear from this week’s oral argument that there are at least four votes on the Court to abandon the Lemon and endorsement tests. Justices Gorsuch, Alito, and Kavanaugh all voiced explicit opposition to the application of Lemon. And Justice Thomas has long favored a radical federalism approach to the Establishment Clause that would allow states to decide for themselves whether to maintain religious establishments. For his part, Chief Justice Roberts seems drawn to Establishment Clause tests that would provide lower courts with more guidance. And although he kept his cards close, there is every reason to expect that he will vote to reject the Establishment Clause challenge in this case. In short, on the conservative side of the Court, there are an easy five votes for upholding state ownership and endorsement of the Latin Cross – the preeminent symbol of Christianity.

But this much is predictable. The more troubling thought is that some liberal justices might refuse to call out this egregious violation of Establishment Clause principles. In an effort to gain concessions or to limit the possible damage that this case might do to decades of Establishment Clause precedent, liberals on the Court might compromise or adopt one of the “ways out” offered by the petitioners and various amici. They could say that until now, the Bladensburg Cross hasn’t been the subject of divisiveness and, for that reason, should be grandfathered. Or they could say that the cross reflects a unique historical moment after World War I when it was customary to memorialize the war dead with the symbol of the cross. Or they could say that the cross represents only the war dead from Prince George’s County, who were all Christian (although this claim may be false). Or they could say that the plaintiffs had no standing to challenge Maryland’s memorial. Or maybe there are other creative ways to underenforce the Establishment Clause in this case.

But all of these strategies of avoidance are ultimately forms of Establishment Clause appeasement.* In the face of an aggressive charge by those who favor government religious preferentialism, including Christian nationalists, it is a mistake to ignore the threat posed by this case. The real issue is not whether a hundred-year-old World War I memorial will be allowed to stand, but whether religious conservatives can clear a doctrinal path to allow widespread government endorsement of Christianity. Failure to address that issue directly invites further challenges and hastens the demise of a state that respects the principle of religious neutrality.

We may, of course, regret the divided state of our constitutional politics around these issues. Ideally, Americans would debate each other in a reasoned way, with a lower level of bitterness, and strive for amicable resolutions in hard cases. But it is not obvious that offering a middle ground will actually reduce tensions at this historical moment, when the Roberts Court is engaged in a process of remaking Establishment Clause doctrine. Indeed, compromising here is likely to exacerbate conflict by allowing the government to endorse messages that differentiate citizens on the basis of religion. Division of the citizenry along denominational lines is what’s at stake in the Bladensburg Cross case, and presumably in a range of analogous cases concerning religious expression by the government.

There are reasons to worry about whether the liberal justices on the Court fully appreciate that we are at an inflection point in the history of the Religion Clauses. For his part, Justice Breyer has wavered in the application of the principle of religious neutrality. In two companion cases, McCreary County v. ACLU and Van Orden v. Perry, Justice Breyer split the difference, voting to strike down one set of Ten Commandments while providing a crucial fifth vote to uphold another. (And he cast the vote to uphold over the dissent of Justice O’Connor, who rejected both displays as violating the Establishment Clause.) And during argument in the Maryland case, he seemed to double down on that approach. He asked, “what about saying past is past . . . but no more,” signaling a willingness to grandfather the Bladensburg cross.

Similarly, all of the liberal justices joined Chief Justice Roberts’s unanimous opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which constitutionalized the ministerial exception and rejected a standard discrimination claim brought by a religious school teacher. None of the liberals seemed to recognize that Hosanna-Tabor would not only protect the ability of Catholics to preserve an all-male priesthood, as it should have, but that it would be used by conservatives to advance far-reaching claims for “freedom of the church” or the institutional sovereignty of religious groups. And none of them commented on the proposition that the First Amendment “gives special solicitude to the rights of religious organizations” as opposed to the rights of religious individuals. There was little sense that Hosanna-Tabor was the product of a larger social movement to strengthen the power of religious organizations, to extend their influence in the market, and to limit the civil rights protections of employees in this country. The case was seen in a vacuum, without recognition of its broader significance.

More recent cases, including those raised under the Free Exercise Clause, are also cause for concern. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, Justices Breyer and Kagan joined Justice Kennedy’s majority opinion, providing a lopsided 7-2 victory for a Christian baker who had violated Colorado’s antidiscrimination law. Although they wrote a separate concurring opinion arguing that Colorado could have applied its law in a manner that was religiously neutral, Justices Breyer and Kagan agreed with the majority that the Colorado Civil Rights Commission had expressed animus toward Jack Phillips, the Christian baker. But it is hard to believe that they would have found such animus had there been a working majority to uphold Colorado’s law. It seems more likely that they went along with Justice Kennedy’s majority to reach a narrower decision and to secure language that might, in some future case, insulate public accommodation laws from challenge. But with Justice Kennedy’s retirement, that possibility now seems seriously diminished. And instead what we have is a 7-2 decision majority that confuses the doctrine of religious animus and that isolates and marginalizes the perfectly reasonable view expressed by Justices Ginsburg and Sotomayor in dissent, namely, that public accommodations laws were applied neutrally – and that it was (and is) permissible for state officials to call out discrimination when they see it.

The dissenting opinion by Justices Breyer, joined by Justice Kagan, in Trump v. Hawaii was also somewhat puzzling. It focused heavily on an “elaborate system of exemptions and waivers,” which might have provided evidence of President Trump’s religious animus – as if any further evidence was needed beyond the relentless bigotry of his numerous statements purporting to justify the ban. Justice Breyer spent 15 odd paragraphs detailing all the statutory minutiae and inner workings of an arcane exemption system, only to conclude by half-heartedly saying that, if forced to choose, he would side with Justice Sotomayor’s straightforward dissent over the majority’s decision to uphold the ban. But then why not simply join Justice Sotomayor’s opinion in the first place and provide a clear, forceful, and unified dissent?

Perhaps such efforts should be understood as optimistic quests for common ground. Perhaps in some cases, such ground appears slim, but nonetheless possible to occupy. But this misses the larger picture, which is that Masterpiece, Trump v. Hawaii, and now the Bladensburg Cross case effect a generational shift in the meaning of the Religion Clauses. The Establishment Clause is being eclipsed, and religious free exercise has become a deregulatory sword against the advancement of civil rights.

We understand the appeal of deciding one case at a time. And we also understand the desire to compromise and to find grounds for agreement, however narrow. But in the Bladensburg Cross case, those impulses may come at the cost of emboldening those who seek to dismantle the Establishment Clause and the principle of civic equality for which it stands. As Justice Kagan so clearly and eloquently stated in her dissenting opinion in Town of Greece, “America’s promise in the First Amendment [is] full and equal membership in the polity for members of every religious group . . . .” As we have argued recently, it is a mistake to compromise that principle under current constitutional conditions. If the Court is unwilling to say that the state has violated the requirement of religious neutrality, it is time for a clear-eyed, forceful, and unequivocal dissent, one that we hope will be heard in the future by others who share Justice Kagan’s view that the First Amendment promises equal citizenship.

*Update (3/1/19): We have substituted the term concession for appeasement in the title of the piece, though not in the text. We are making this change because we recognize that the word appeasement has a potent historical connotation that we do not intend. But appeasement also has an independent and more general meaning that captures a complexity lacking in all the alternatives, including concession. Appeasement refers to a dynamic where one side yields ground for the sole purpose of avoiding conflict, but where that concession has the self-defeating effect of emboldening the other. We want to retain that meaning—we are changing the title only to avoid the unintended historical comparison that might be conveyed to those who glance at the title without reading the piece (including this update). We recognize that substituting the term concession might itself be seen as a concession, but we don’t think that’s correct—we have a nonstrategic reason for making the change.

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