Administration Issues Notice of Proposed Rulemaking That Deploys Rhetoric of Extremist Anti-Union Advocacy Groups

By Nicole G. Berner, SEIU General Counsel  and Renee M. Gerni, SEIU Associate General Counsel

The Trump Administration has managed to combine its disdain for the Medicaid system with yet another attack on American workers. This time it’s targeting home-care providers, a workforce comprised primarily of low wage women of color.

Late last month, the Centers for Medicare & Medicaid Services (CMS) which is part of the U.S. Department of Health and Human Services (HHS) suddenly came out with a new proposed rule.  HHS’s mission is to “to enhance and protect the health and well-being of all Americans.”  Yet this proposed rule rather than protecting public health instead jeopardizes the health and well-being of Americans most in need of HHS protections -- seniors and people with disabilities -- by targeting the union rights of a key sector of the home care workforce that provides them critical services. This proposed rule would prohibit these workers from voluntarily contributing a portion of their own wages to support their union. The proposed rule would also prohibit these workers from making other voluntary payroll deductions for benefits such as health care and retirement accounts.

It is no coincidence that the rule targets home care providers and their ability to come together and support their unions. Over the past two decades, these mostly women workers have formed powerful unions with the Service Employees International Union (SEIU) and the American Federation of State, County and Municipal Employees (AFSCME). By building strong union organizations, they have succeeded in making their home care jobs some of the best in the home care industry. At the same time, they have fought to maintain Medicaid funding for home care services, advocated for quality improvements to the home care system and beat back attempts to limit access to services for the seniors and people with disabilities who depend on their care.

By joining together in a union, home care workers have won higher wages, better training opportunities and basic benefits like paid sick leave and affordable healthcare coverage. For example, in Massachusetts, Oregon, Washington State and Los Angeles county, home care workers have won a $15 an hour wage. Unionized home care workers in Washington, Oregon, Connecticut, Massachusetts, Illinois and some counties in California have negotiated for training programs to improve their care delivery skills.  In Washington, union home care workers have successfully bargained for a retirement plan – a first in the country for these providers.

While HHS offers no explanation for its sudden policy shift, the catalyst for this proposed action is clear. Starting in early 2017, anti-worker media outlets began featuring op-eds and other articles claiming that unions were engaging in so-called “Medicaid dues skimming” by “diverting” Medicaid funding from state programs that would otherwise go to providing home care services. In one of the most conspicuous examples of these pieces, failed Labor Secretary nominee Andrew Puzder made the outlandish claim that “unions don’t really represent home health-care givers in the normal sense.”

These claims are without basis. The homecare workers targeted by the NPRM have all voluntarily chosen to join the union and contribute membership dues. The vast majority of union members, including teachers, police officers and firefighters, similarly support their unions through voluntary payroll deduction. If a homecare worker chooses not to become a member of the union or not to contribute voluntarily to a retirement account, the amount they might have contributed in dues or toward retirement simply goes directly to the worker as part of her paycheck. Those funds do not, as these anti-worker groups claim, somehow revert back to the Medicaid system.

Who does the rule impact, should it go into effect?

Home care jobs are among the fastest growing occupations in the country. Ironically, in many parts of the country, they’re also amongst the least attractive.  Home care workers are paid an average of $10.49 per hour and earn about $13,800 annually. Basic benefits like health care coverage, sick time or other paid time off are rare.

These conditions should be alarming not just for the current workforce -- 90 percent of whom are women and mostly women of color -- but because the home care workforce needs to grow exponentially. Ten thousand people turn 65 every day in America, and the vast majority of people want to age with dignity and independence in their home. Our country needs to attract one million more workers to this role by 2026.  While there is an explosion of aging Baby Boomers and others requiring long term care, there is a significant shortage in the home care workforce. In one study, home care worker turnover rates top 60 percent in some markets.  Given the labor intensive and intimate nature of home care services, it is no exaggeration to say that there is no access to care if a worker is unavailable.

This proposed CMS action will exacerbate an already serious problem. If we hope to prevent the current shortage of caregivers from becoming a crisis we must do more to attract people to home care work and we must create a more stable workforce for the Americans who currently count on home care services as well as for the growing population who will need long term care.

TAKE ACTION!

All home care workers deserve much more support, particularly for their ability to have a strong collective voice to improve the work they love.  Their continued ability to provide quality care to a growing population of people in need depends on it!

Learn more about how homecare workers are responding to CMS’s proposed rule here and show your support here. You can also submit comments directly to CMS on the proposed rule here.

Trump-Russia Issue Helps Highlight Exactly What’s At Stake In Kavanaugh Fight

The most important battleground of the Kavanaugh confirmation fight is not a specific issue, but whether people pay attention to the nomination itself. To some, the focus on Trump and Russia is a distraction from the Supreme Court fight.  But, in reality, the focus on Trump and Russia helps highlight exactly what’s at stake in this fight.

President Trump isn’t right about much, but he was actually right when he said this: “other than matters of war and peace,” “the selection of a Supreme Court justice” is “the most important decision a president will make.” The range of crucial issues on which a Justice Kavanaugh could wreak havoc for a generation or longer is huge.  And yet analysis of social media shows that coverage of Kavanaugh’s views on the traditional legal issues has been crowded out of the national conversation by the tumult of news that typifies Trump’s America.

Yet, there is also a glimmer of hope for Kavanaugh opponents: social media analysis also demonstrated that discussing Judge Kavanaugh within the context of the propulsive and compelling “Trump-Russia” story can generate significant engagement.  In other words, the progressive fear that discussing the Kavanaugh nomination within a non-standard frame like “the Mueller investigation” undercuts more traditional areas of concern for Supreme Court nomination fights has it backwards.  It is precisely because Justice Brett Kavanaugh poses a threat to broadly shared American values and liberties—indeed, to the very idea that no one is above the law—that progressives can and must cut through the persistently cluttered communications environment that characterizes Donald Trump’s chaotic presidency.

Significantly, Judge Kavanaugh has an unusually long paper trail on a number of legal questions that may be relevant to the future of the Mueller investigation.  He has argued for excluding a sitting president from criminal and civil accountability. He has even worried that the “tension” surrounding the Nixon presidency during “Watergate” may have caused the Supreme Court to wrongly (albeit unanimously) deny Nixon the right to hide subpoenaed materials (his highly incriminating tapes) from a federal district court.

Kavanaugh’s speeches and writings make clear that Kavanaugh believes it is more important that the president avoid “distraction” and any loss of complete control of the levers of government than that America be a country governed principle that no person is above the law.

Trump had alternative choices for the Supreme Court no less likely than Kavanaugh to oppose Roe v. Wade, civil rights, the administrative state, or social welfare programs like the ACA. In fact, Senate Majority Leader Mitch McConnell urged Trump to choose from among the candidates with similar views but an easier path to rapid confirmation. And one of the candidates McConnell preferred to Kavanaugh, Judge Thomas Hardiman, was championed by Trump’s own sister.

Trump ordinarily defers to McConnell’s preferences and judgment about the Senate on judicial appointments. Why didn’t he in the case of Judge Kavanaugh?

It is reasonable to wonder whether Trump was attracted to the potential Justice most publicly committed to the idea that presidencies are too important to be disrupted by annoyances like civil or criminal legal processes, i.e., the rule of law.

And so even as others have pointed out this cause for worry, it is worth highlighting some of the aspects of Kavanaugh’s views that are most troubling in light of the specific investigations and litigation surrounding Trump generally and the Trump campaign’s possible cheating in the 2016 election specifically.

First, Kavanaugh consistently asserts that the impeachment process is a sufficient alternative to prosecutors and a grand jury investigating and potentially pursuing a president’s possible criminality.

It is hard to see how that judgment could be reached in good faith. Without prosecutors leading an investigation, many worthy impeachment inquiries will never be referred to a congressional committee, especially if and when the president has allies running the House of Representatives. And partisan allegiances can prevent the very investigation into a president that might develop evidence of guilt.

Additionally, prosecutors alone have the investigative tools and resources suited to complex webs of criminality like that orchestrated by, e.g., Nixon’s “plumbers” and (possibly) by Trump, the Trump Campaign, and Trump’s broader team. In the case of Special Counsel Mueller’s operation, think about his team’s reliance on the intelligence community, anti-money laundering resources like Treasury’s Financial Crimes Enforcement Network, cyber security professionals, and various experts fluent in Russian.  No congressional committee could parallel Mueller’s multi-prong investigation from outside of the executive branch with similar effectiveness.

Impeachment is simply not a tool well-suited to initial fact finding and assessment of whether an intrusive investigation is warranted. Impeachment is instead much better suited to applying a small d “democratically legitimate” judgment to facts already unearthed by investigators or actions undertaken in public with simple fact patterns, such as Andrew Johnson firing officials in violation of the Tenure in Office Act.

Second, Kavanaugh’s waving away of real life concerns is not limited to his views on the utility of the threat of impeachment. The issue of statutes of limitations is barely acknowledged by Kavanaugh except to, in one footnote, note that his proposal for Congress to explicitly free the president of accountability may also “require extension of the relevant statutes of limitations.”

Of course, no federal statute can extend statutes of limitation in state law. And any Justice who acted on Kavanaugh’s suspicion of prosecutors and courts seeking to hold a president legally accountable would of course be unable to concomitantly ensure the staying of all relevant statutes of limitation.

In Brett Kavanaugh’s view, election to the presidency could make criminal liability for a host of actions prior to the presidency disappear – and, ironically, that cleansing could potentially include liability for crimes committed with an eye toward winning the presidency.

Third, while Kavanaugh has attacked Morrison v. Olson, the Supreme Court precedent that upheld the independent counsel by an 8-1 margin, and the Nixon Tapes case (decided 8-0), some defenders make the technically valid point that Kavanaugh has not specifically called the current Special Counsel regulation unconstitutional.

However, Kavanaugh's writings make clear that he accords great weight to the type of arguments presidents like Nixon and Clinton made while seeking to avoid legal accountability. For instance, Kavanaugh expressed in a law review article that based on “[h]aving seen first-hand how complex and difficult that job is, I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible.” Kavanaugh went on to make clear the offensive notion that the term “distraction” encompasses a president’s obligations in not only civil lawsuits, but “criminal investigations and prosecutions of the President.”

Additionally, Kavanaugh also argued that it “makes no sense at all to have an independent counsel looking at the conduct of the President.”

This extraordinary deference to the priorities of the president is troubling. In Clinton v. Jones, President Clinton expressed concern about “an unacceptable burden on the President's time and energy.” However, a unanimous Court rightly did not find Clinton’s self-serving argument persuasive.  Kavanaugh’s past statements, however, suggest that such a self-serving argument would be received favorably by him as a Justice.

Fourth, and finally, Kavanaugh is known for his unyielding support for an essentially anti-textual doctrine (unitary executive) that essentially ignores the Constitution allocating to Congress the ability to pass laws “necessary and proper” to carrying out its considerable responsibilities. Kavanaugh thus fits within the lineage of Ed Meese and the Reagan administration, which generated the "unitary executive" idea to help enable the administration to “act at home and abroad without congressional authorization, withhold information from Congress at their pleasure, and resist any attempt by Congress to find out what was going on or limit their freedom of maneuver.”

The implications of this radical ideology for a host of potential defenses by Trump are clear and foreboding.

Thus, while it is technically true that Kavanaugh has not literally stated an unbreakable commitment to ruling that the president is unreachable by the law while in office, the tipping of his hand in that direction is evident.

And while it would be troubling at any point in time that Kavanaugh believes a president should have so much power and so little accountability, it is worse than ever in 2018.

Here’s a partial list of “is Trump above the law” cases reasonably likely to be developing in the courts soon – and in many of them, one could imagine cases moving particularly expeditiously. (By way of example, consider that the Supreme Court’s opinion against Nixon in U.S. v. Nixon was issued barely more than four months after the special prosecutor subpoenaed Nixon’s tapes)

  • Manafort and other targets of Mueller keep claiming in court that Mueller’s appointment is illegal.
  • Can a president, within Kavanaugh’s “unitary executive” framework, commit “obstruction of justice,” or is “justice” necessarily concomitant with the whims of the executive?
  • Can pardons be obstruction of justice?
  • How do federal pardons intersect with state prosecutions, an issue the Supreme Court will be considering next term (in other words, the Supreme Court already has a case in which one way to write a decision might clear the way for Trump to protect people in his orbit potentially subject to state prosecution, such as Paul Manafort in New York)?
  • Can states prosecute a president criminally while he is in office?
  • What is the impact on federal and state law statutes of limitations (both civil and criminal) of any tolling of actions against a sitting president?
  • How broadly can President Trump protect evidence from the Mueller investigation under the aegis of “executive privilege,” especially given that Kavanaugh seems to hold a relevant view he himself describes as “heresy” to mainstream constitutional law scholars (i.e., the Nixon tapes case was decided wrongly)?
  • If Democrats take the House of Representatives, how much information and evidence will the Trump administration be able to shield from Congress under by “invoking” the theory of “executive privilege”?9
  • Can a president be compelled to testify by Mueller’s grand jury or by state or federal courts?
  • If Trump loses any of the emoluments lawsuits against him and Trump seeks to violate a court order, how will Kavanaugh rule?

A potential firing of Mueller raises several other questions.

  • Was the firing lawful?
  • Were any follow-on efforts to destroy information in Mueller’s files or keep it from Congress valid?
  • Can a “unitary executive” order specific federal prosecutors and law enforcement officers to quit pursuing cases that originated out of Mueller’s investigation, or which cover similar ground?
  • Can a “unitary executive” order specific federal law enforcement officers to not cooperate with potential prosecutions in state courts, e.g., by ordering them to not share evidence?

The intersection of a Justice ideologically committed to an extreme view of executive power and a president under an unprecedented cloud of investigations is remarkably dangerous.

So is it strategic for Kavanaugh opponents and skeptics to make a single nomination a fulcrum for conversations about Trump-Russia?

It is.

There is nothing Judge Kavanaugh’s minders find more helpful to their attempt to get him confirmed than a lack of attention to or energy around Kavanaugh’s nomination.

The Trump-Russia story, which in one way or another is likely to continue to be in the news as it has been throughout Trump’s presidency, is a great hook to sustain interest in Kavanaugh’s nomination while raising significant concerns about Kavanaugh’s radical take on executive power.

Trump’s Politicization of the Administrative Judiciary

On July 10, while most of the legal/political world was digesting the nomination of Judge Brett Kavanaugh to the Supreme Court, President Trump issued Executive Order 13843, Excepting Administrative Law Judges from the Competitive Service. How administrative law judges (ALJs) are hired is not juicy news, even on a slow news day, so it is not surprising that this EO did not get much coverage. Nevertheless, those closely involved in administrative law immediately saw this as an important and potentially dangerous new step.

For over a half century, the Administrative Procedure Act (APA) has provided for agencies to appoint persons to preside over and make either initial or recommended decisions for agencies in formal adjudication and formal rulemaking. Originally called hearing officers, these persons were renamed in 1978 as administrative law judges. Today there are some 1700 ALJs spread out over 36 different federal agencies, although about 1400 of them are in the Social Security Administration (SSA).  The decisions that ALJs make are important to the people affected by them. For example, when a person applies for but is denied Social Security Disability benefits, the person may appeal that decision and the first tier of review of the agency’s decision will be an ALJ. A Securities and Exchange Commission decision, initially made by an ALJ and recently reviewed in the Supreme Court in Lucia v. SEC, involved a $300,000 fine and a lifetime ban from the investment industry upon a finding that the person had fraudulently misled investors. In light of the importance of decisions made by ALJs and the powers that they exercise in the course of their hearings – supervising discovery; issuing, revoking, or modifying subpoenas; deciding motions; ruling on the admissibility of evidence; administering oaths; hearing and examining witnesses; generally regulating the conduct of the proceeding; and imposing sanctions for contempt or procedural violations – the Supreme Court held in Lucia that ALJs are officers of the United States. Moreover, it has long been thought necessary to ensure the competence and independence of ALJs that they be appointed through a competitive process run by the Office of Personnel Management (OPM), an agency separate from the agency that would hire them, and that once hired, their agency cannot sanction them, reward them, or remove them except for cause as determined by the Merit Systems Protection Board.

President Trump’s EO changes some of this. Going forward (that is, it does not affect current ALJs), ALJs will no longer be hired through the OPM. Instead, the EO authorizes agencies to hire new ALJs in whatever manner the agency desires. In addition, the EO states that the removal of these future ALJs will not be subject to Civil Service Rules and Regulations.

Initial reactions viewed these changes with dismay. Typical was that of the President of the American Bar Association, who wrote to members of the House of Representatives that “the EO has the potential to politicize the appointment process and interfere with the decisional independence of ALJs. Nothing less than the integrity of the administrative judiciary is at issue here.” More measured reflection, however, has tempered this impression. First, whatever the meaning of the EO’s statement that removal of new ALJs will not be subject to Civil Service Rules and Regulations, current and new ALJs will only be able to be removed for cause as determined by the Merit Systems Protection Board. That protection is statutory (5 USC § 7521(a)) and cannot be undone by EO. In other words, the EO makes no change to the grounds for removal or other sanction of ALJs.

With respect to the change in hiring, Kent Barnett of the University of Georgia, while acknowledging the potential of packing an agency’s ALJ corps with those whom it thinks are sympathetic to the current administration’s positions, has noted that there are some positive aspects of the EO. For example, there have been longstanding, bipartisan complaints about OPM’s operation of the competitive process for deciding who can qualify to be an ALJ. It has created inordinate delays in appointing new ALJs and made virtually impossible the appointment of persons with subject matter expertise in the agency’s work. The EO’s change will address these problems. Paul Verkuil, a universally respected expert on the use of ALJs and former Chair of the Administrative Conference of the United States, points out that the EO has mostly positive effects for the SSA ALJs, who constitute the vast majority of all ALJs.

It may be true that the SSA is less likely to be concerned with their ALJs’ ideology, compared to regulatory agencies, inasmuch as ruling on individuals’ social security eligibility simply does not raise the same political temperature as decisions by regulatory agencies. Still, the fear of ideological appointments in the regulatory agencies may be real. Nevertheless, the effect of any such ideological appointments can be overstated. After all, ALJ decisions are initial or recommended decisions; they are not the agency’s final decision unless the agency decides to make them so. Under the APA agencies exercise de novo review of ALJ decisions, and no one doubts that the agencies are themselves ideologically stacked in light of the then current administration’s predilections. Thus, no matter how independent, non-partisan, and unbiased an ALJ might be, the agency retains the power to act in accord with the administration’s ideological leanings. And to the extent that those ideological leanings are not inconsistent with the statute being applied in the case, the result in the case accords with the will of the people in electing that administration. It is the courts that assess whether the agency has stepped over the line by transgressing the statute or ignoring the evidence.

As Professor Barnett concluded, while the EO may have some positive benefits, it also creates opportunities for politicization of what has been an independent administrative judiciary. The benefits could have been obtained in a manner that would have avoided the possibility of politicizing ALJ appointments. And while the effects of such politicization can be exaggerated, a perception of an intent to do away with an independent administrative judiciary could do lasting harm to the public acceptance of administrative adjudication. But then, perhaps that is the point.

Beyond the Courts: The Role of State and Local Governments in Supporting Immigrant Communities in the Trump Era

Over the past 18 months, State Attorneys General (AGs), City Attorneys, and other state and municipal lawyers have engaged with federal immigration policy far more frequently and with much greater purpose than at any point in the past decade (and possibly longer). In the Trump era, much of the attention has focused on high-profile federal lawsuits, such as challenges to the travel ban, termination of the Deferred Action for Childhood Arrivals program (DACA), new requirements imposed on localities that receive federal funds, and, most recently, family separation and detention. That attention has been justified, given both the impact of these federal policies on institutions, communities, and financial bottom lines as well as the symbolic resonance of the issues. Several suits already have reached the U.S. Courts of Appeals, and the Supreme Court upheld the travel ban in Trump v. Hawaii, a decision issued during the last week of the October 2017 term.

Lawsuits are critical, and they will continue to draw considerable attention as they wind their way through the federal courts. However, they tell only a piece of the story of the work by State AGs and many of their counterparts at the local level in support of immigrant communities. The collection of federal litigation is the centerpiece, but a single component of the clearly demonstrated commitment to immigrants and their families. The values and goals that have animated these suits – among them inclusion, hope for a better future, federalism, and human decency – also have resulted in extensive guidance, collaboration, and state-level enforcement work. In sum, though the authority to regulate immigration lies with the federal government, state and local governments have employed multiple means to counter-balance extreme new policies and offer some relief to their immigrant residents.

What is set out below is an initial effort to weave some of that important work together.

Going on the Attack: Federal Lawsuits

Inclusion: Response to the travel ban was swift. Massachusetts Attorney General Maura Healey was on the ground at Logan Airport during the first afternoon of the ban’s implementation. Lawsuits, including State AG challenges were filed in the next few days. Washington Attorney General Bob Ferguson’s office obtained the first nationwide injunction, and was followed by the Hawaii AG in subsequent iterations of the ban. The cases focused on the discrimination against individuals based on their religion as well as their exclusion due to a connection to a particular country. The notion that individuals – with qualifications, skills, and commitments to contribute – could be categorically excluded simply because of the connection between the Muslim faith and their country of origin reflected prejudice that challenged fundamental understandings of our national values.

The Promise of a Better Future: The fate of Dreamers captured significant attention early in the administration. Inconsistent and often opaque statements by the President, among other things, left the continuation of the DACA program in serious doubt. In tandem, the stories of Dreamers came to the fore. Compelling narratives of young adults who arrived in the United States very young in age, many only 1 or 2 years old, and who have risen to the ranks of college graduate or even small business owner. For so many, the Dreamers represented the slightest fix to a broken immigration system and the promise of a better future that America could actually offer. This correction and these possibilities needed to be defended, and lawsuits were filed swiftly to challenge DACA’s termination.

Federalism: In the face of a concerning federal agenda under President Trump, the independent acts of state and local governments has remained a critical component of the resistance. The ability of these governmental actors to exercise their sovereignty has created significant conflict, particularly in the immigration arena. Beginning with an early Executive Order regarding enforcement against so-called sanctuary jurisdictions, to new federal funding requirements under the Byrne JAG Program, to an enforcement suit against the State of California, cities and states have pushed against efforts to entangle local police, among others, in the immigration enforcement machinery. Courts and others have been seeking to find the right balance between the reluctance to cooperate and the mandates of federal law. These cases have been about a number of issues, but they generally boil down to states and localities preserving their access to federal funds without being required to align their resources with new federal immigration enforcement priorities.

Decency: Most recently, the forced separation of children from their parents at the border has prompted another round of multistate litigation against the Department of Homeland Security. Traumatizing children, and their parents, to thwart asylum seekers from Central America has been met with stiff resistance from many corners and prompted a purported retreat in policy. However, the significant damage is already done, and state and local governments will serve many of these families, often at greater costs due to the families’ educational or health care needs, among other things, following the trauma of separation. The litigation challenge to the policy also reflects vehement opposition to intolerable treatment of the vulnerable.

For their part, the lawsuits also have served as an organizing mechanism, with broad bases of support mobilizing against the travel ban and in favor of Dreamers, in particular. Hospitals, tech companies, universities, and so many others have voiced significant concern about the impact of these changes in immigration policy. For them, it is both about values as well as the bottom line. Industries reliant on immigration for talent, innovation, and enhanced capacity cannot sit idly by and watch their competitive advantage slip away.

Responding to Federal Action

Besides filing lawsuits, state and local actors have responded to actions and threats by the federal government, and their impact on immigrant communities, in a number of ways. State and local entities have updated policies and practices when it comes to information sharing across agencies, detention of criminal defendants and inmates, as well as certification for U and T visas. They also have developed guidance for everything from model “sanctuary” bylaws to guidance on how schools can consider responding to ICE enforcement on campus. Similar guidance has been produced for health care facilities and governmental offices. These documents have reiterated the importance of understanding the information that entities possess (as well as the applicable protections), putting a response procedure in place, and understanding what federal law requires.

Policy setting by state and local governments also make these places – colleges and universities, community health centers, state departments of labor, among others – more welcoming to those who need their services. Many of these institutions are essential to the functioning of their communities.

State and local actors also have played a role in convening discussions among advocates and coordinating efforts where appropriate. For example, some localities have worked to develop immigrant defense programs. Since no lawyer is guaranteed in immigration court, and because individuals are far more likely to succeed in asserting defenses to removal with counsel, civil defense funds and enhanced pro bono counsel programs have been set up. Some have been supported by foundation grants, while others have received government revenue.

Enforcement Against Abuses

President Trump’s immigration enforcement actions have left immigrants more vulnerable to abuse as workers, tenants, and consumers. Many state and local actors have responded with increased vigilance. Notario fraud and retaliation against workers and tenants are among the most common examples. Landlords regularly “encourage” tenants not to report problematic conditions by threatening to call ICE. Some employers engage in similar behavior, particularly when it comes to complaints about unpaid wages. With immigrants more desperate than ever to find a pathway to permanent residency, or at least some degree of greater certainty, unfounded promises by so-called immigration advocates have resulted in far too many individuals shelling out thousands of dollars that they do not have for services that offer little benefit, and which often put them in harm’s way.

State and local governments have tools to hold such actors to account, including both civil and criminal remedies. Unfair and deceptive acts and practices statutes, civil rights law, and criminal statutes have been utilized to bring individuals to justice and to demonstrate public support for immigrants. In a recent example, the Massachusetts Attorney General’s Office secured a preliminary injunction against a lawyer and his assistant for violations of the state’s consumer protection act arising out of their exorbitant fees, deceptive promises, and other abusive conduct against clients.

Networks & Partnerships 

Connection to immigrant communities also has required greater integration with community-based groups, particularly those that serve as trusted partners for immigrants. Collaborative engagements are needed to rebut the perspective that the government is a monolithic entity and that all forms of it are either controlled by the President or are aligned with his goals. Cultural and linguistic competence serve as critical bridges, particularly given the diversity of the community and the challenges of having teams and staff in governmental agencies that meet all of those needs.

In Massachusetts, one particular example has been a blossoming wage theft clinic in which the Attorney General’s Office partners with community-based organizations, legal services groups, law schools, and private practitioners to offer direct assistance to individuals who have submitted wage and hour complaints. The partnerships help create trust so that workers show up to these once-a-month clinics, ensure language capacity to assist mostly immigrant workers, and provide varying degrees of legal representation from a day-of consultation up through direct assistance in court proceedings. Some of these cases have resulted in multi-thousand dollar recoveries for workers.

Similar efforts can be found in a number of sectors from working groups at major municipal hospitals to community colleges. In one recent convening, Bunker Hill Community College brought together college, high school, and organizational staff to discuss some of the unique challenges that confront undocumented students, including those participating in DACA or with Temporary Protected Status, from academic advising to financial aid to career placement. Even in a challenging climate for immigrant communities, events like these bring hope and reasons for optimism.

Governments at all levels struggle to serve immigrant communities, due to a variety of challenges that include cultural and linguistic barriers. Over the past year and half, that work has become much harder due to significant shifts in federal immigration policy. State and local actors have responded, both through litigation and other means, to blunt the impact of the new policies and continue their services of these communities. In the short term, many of these efforts have served to hold federal actors accountable, at least to slow the implementation of harsh policies, and to protect individuals harmed by abusive conduct. Over the long term, it should result in a prolonged and deepened commitment to immigrant communities, which will have benefits lasting well beyond the current administration.

*Jonathan Miller is Chief of the Public Protection and Advocacy Bureau in the Office of the Massachusetts Attorney General. The views represented here are his own and not those of the Attorney General or the Office.

Judge Kavanaugh’s Dissent in OSHA Case Reflects Deep Skepticism Toward Federal Agency Enforcement of Workplace Protections

As the analysis of the record and opinions of United States Supreme Court nominee Judge Brett Kavanaugh begins, one of the judge’s dissenting opinions on the Court of Appeals for the District of Columbia Circuit is a strong indicator of the judge’s philosophy toward the law’s protection for workers, and how, if he is confirmed, he will limit the future reach of administrative agencies. Judge Kavanaugh’s 2014 dissenting opinion in SeaWorld of Florida, LLC v. Perez reflects Judge Kavanaugh’s deep skepticism of the institutions that Congress designed to protect American workers.

The SeaWorld case concerned the death of Dawn Brancheau, an animal trainer at Sea World in Orlando.  Brancheau was an orca trainer with more than 14 years experience and 16 years employment with SeaWorld itself.  Brancheau was working with a killer whale named Tilikum on February 24, 2010.  At one point in the routine before a full crowd of spectators at the theme park, Tilikum was supposed to mime Brancheau’s behavior. Instead, the killer whale pulled Brancheau off the platform, inflicted severe injuries, and drowned her.  Brancheau’s death, and the ensuing OSHA investigation, was a central focus of the 2013 film Blackfish.

OSHA investigated Brancheau’s death and found cause to issue the citations under the Act’s general duty clause, which, in the absence of a specific standard covering the incident, authorizes OSHA to impose penalties and order abatement if the employer “willfully” failed its duty to keep the workplace free of “recognized hazards” likely to cause death or serious physical harm.

The D.C. Circuit panel affirmed OSHA’s penalties by a 2-1 vote, with Judge Kavanaugh dissenting. Writing for the court, Judge Judith Rogers found that the orcas were a recognized hazard that the employer could have protected against by taking the measures that OSHA specified in its citation against the employer.  The court rejected the employer’s argument that the trainers had “formally accepted and controlled their own exposure to risk.”  Decades of precedent make clear that OSHA was meant to displace “such common law doctrines as assumption of risk, contributory negligence, or comparative negligence.”

Dissenting from the court’s decision, Judge Brett Kavanaugh likened SeaWorld’s business to other risky endeavors that OSHA has thus far refused to regulate:

Football. Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter’s box against a 95 mile an hour fastball.  Bull riding at the rodeo.  Skydiving into the stadium before a football game.  Daredevil motorcycle jumps.  Stock car racing. Cheerleading vaults. Boxing. The balance beam. The ironman triathlon. Animal trainer shows. Movie stunts.  The list goes on.

This list, a mix of professional sports and some less-well compensated entertainment professions (movie stunts, cheerleading, triathlons) then led Judge Kavanaugh to ask: “When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves—that the risk of significant physical injury is simply too great even for eager and willing participants?”  For Judge Kavanaugh, OSHA’s decision to regulate entertainment shows (such as Cirque du Soleil) and not to regulate professional sports was the paradigm of “arbitrary and capricious” agency action.

Setting aside the many dissimilarities between the labor of professional sports and the work that led to Dawn Brancheau’s death, Congress gave OSHA a broad mandate to regulate within its discretion.   Based on his dissent, however, Judge Kavanaugh seems to view OSHA’s exercise of jurisdiction in this case as an example of the “nanny state” run amok, depriving individuals from realizing their full potential as wild animal trainers, daredevil motorcycle jumpers, and ironman triathletes.

Now that Judge Kavanaugh is President Trump’s nominee to the Supreme Court, United States Senators can ask the nominee about what his dissent in the SeaWorld case means for his philosophy toward the administrative state:  Does Judge Kavanaugh believe that other parts of OSHA’s exercise of the broadly worded jurisdiction given to it by Congress might be “arbitrary and capricious,” such as the possible regulation of traumatic brain injuries in the National Football League, or the current regulation of movie sets?  What other examples of workplace activity now being regulated by administrative agencies reflect society “paternalistically” deciding that workers “must be protected from themselves?”  What did Congress mean when it imposed on employers a general duty to minimize harm to workers from “recognized hazards?”

The White House Threatens to Up End the Foundations of Environmental Decisionmaking

The Trump Administration has opened another front in its war on what has long been one of the most developed and effective systems of environmental law on the planet. With little fanfare, the Council on Environmental Quality (CEQ), an office of the White House that often operates beneath under the radar, initiated a regulatory process that could gut the National Environmental Policy Act (NEPA)—a 1970 law referred to as America’s environmental magna carta and which served as a model for similar laws adopted by twenty states and numerous foreign nations and international governance bodies.

Let me provide a few details: On June 20, 2018, CEQ issued an Advanced Notice of Proposed Rulemaking (ANPR) inviting public comments on whether and how it should amend its NEPA regulations—which span eight parts, including 67 sections—of the U.S. Code of Federal Regulations. The notice poses 20 broad questions – really far more because many have several subparts. Grappling with all of the issues CEQ has tossed on the table is a herculean task. CEQ initially provided the public with only 30 days to respond. Numerous comments requested a 60-day extension, including one signed by 352 non-profit organizations and another signed by 36 law professors (including me). With 10 days remaining, CEQ extended the comment period by 30 days.

The harm that would flow from gutting NEPA can easily be overlooked at a time when the Administration announces numerous radical policy changes every week.  Unlike many of other initiatives, NEPA governs process, not substance. NEPA requires federal agencies to consider and publicly disclose the environmental effects of their actions. Consideration and disclosure, Congress hoped, will result in better decisions and greater accountability.  Federal agencies implement NEPA every day, in every state, in decisions effecting every American.

The sweeping importance of NEPA cannot be overstated. President Richard Nixon signed NEPA into law on January 1, 1970, the first of a new generation of federal laws aimed at protecting human health and the environment, exclaiming “it is now or never.” NEPA established a policy for the federal government to “use all practicable means and measures . . . to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”  42 U.S.C. § 4331(a).

CEQ promulgated regulations in 1978 seeking to translate that lofty goal into rules for federal decisionmaking processes. The regulations have been amended only once, in 1986. They strive to calibrate the amount of environmental review required for an action to the severity of its potential environmental effects.

Three decades of experience suggests that this framework largely works. The nonpartisan Government Accountability Office estimates that federal agencies rely on categorical exclusions—the least onerous form of NEPA compliance—to review at least 94% of federal actions, and they rely on environmental assessments—an intermediate form of NEPA compliance—to review less than 4% of federal actions. Agencies rely on environmental impact statements—the most thorough and time-consuming form of NEPA compliance—to review less than 1% of federal actions.

NEPA has generated a substantial body of law under the 1986 regulations. In that time, NEPA has been referenced in 5,278 federal court decisions, nearly 60,000 Federal Register documents, and thousands of congressional hearings.

Regulatory regimes can be improved with experience. After thirty years, we have learned more about how CEQ’s existing regulations work, and we’ve also learned more about our environment. It may be, for example, that the regulations could should more specifically address the climate-inducing impacts of federal actions, something many courts have required agencies to consider in recent years. Or, perhaps the regulations should require agencies to accept public comments on environmental assessments, and not just environmental impact statements, a practice that many agencies have adopted as a matter of policy. Exploring these and other ideas requires much more than the 30 days CEQ initially offered, and more than the 60 days it has now deigned to provide.  All Americans rely upon our environmental “Magna Carta” to ensure our government makes well considered and transparent decisions in matters that affect all of us. The process of considering whether, and if so how, to adjust this long-standing process should not be rushed.