Kentucky Must Keep the Promise on Pensions for Teachers, Police, State Workers

I am the product of a Kentucky public school education, and my mother worked as a public school teacher in Woodford County. I owe so much to the amazing teachers who helped me along my path.

As attorney general, I work closely with social workers, law enforcement, and state and local public employees.

I see firsthand the true commitment of these public servants. They leave their families every morning to help our families.

Unfortunately, my appreciation is not shared by everyone in Frankfort. Some leaders and lawmakers have called these public servants “disgusting,” “uniformed,” “ignorant” or accused them of hoarding sick days they earned.

These leaders and lawmakers are not only badmouthing and disrespecting these public employees, they are trying to break a legal contract and cut their guaranteed retirement benefits.

The so-called “pension reform” legislation is Senate Bill 1.

My office did a legal analysis of Senate Bill 1 and lawmakers “attempt” to fix Senate Bill 1.

Senate Bill 1 would cut tens of thousands of dollars of guaranteed retirement benefits for teachers, and would cut many other benefits to other public employees. It is illegal, as it violates the inviolable contract, state law and ultimately the Kentucky Constitution.

Joined with the Kentucky Education Association and the Kentucky State Lodge Fraternal Order of Police, I filed a lawsuit Wednesday, April 11 to fight the legality of Senate Bill 1.

Decades ago, the General Assembly made a promise to our public employees – if you dedicate your life to serving the public, teaching our children, keeping our families and our homes safe from fire and violent crime, protecting our neglected and abused children through social work – the Commonwealth was going to guarantee you a solid retirement.

The General Assembly then turned this promise into a contract, and passed that contract into law. When they took this step, they made the contract inviolable under law, meaning it cannot be broken.

And they were very specific about what’s in that contract.

When you look at the law, the inviolable contracts for various classes of public employees are created in KRS 16.652, 21.480, KRS 61.692, KRS 78.852 and KRS 161.714. Each of these statutes, in turn, identifies what retirement benefits are in the inviolable contract by giving a specific range of statutes. If a certain benefit falls within the range, under the law it is part of the inviolable contract.

Just about everything that Senate Bill 1 cuts or reduces falls within these statutory ranges, meaning they are a part of the inviolable contract.

So the General Assembly is trying to reduce benefits they promised – under law – would never be reduced. And they are doing it in secret, without sharing with the public any analysis of their plan.

I was raised with the value and teaching that my word is my bond. Breaking the promise of an inviolable contract is immoral.

And it is illegal and won’t work and therefore can’t fix a thing.

It shouldn’t be too much to ask that the General Assembly follow the law.

I also believe lawmakers should consider legalizing expanded gaming to create a dedicated revenue stream that will begin to address the pension unfunded liability without raising taxes.

The book of Isaiah teaches us to “preserve justice, and do what is right.”

As the people’s lawyer, I will continue to fight Senate Bill 1 in our courts and every step of the way.

I Thought I Was Safe from the Purge. I Was Wrong.

On January 10, 2018, I sat in the gallery of the Supreme Court of the United States listening to oral argument in Husted v. A. Philip Randolph Institute. The question presented was whether the state of Ohio’s practice of updating its voter rolls by purging people who fail to vote in consecutive elections violates the National Voter Registration Act of 1993 and the Help America Vote Act of 2002. As an Ohioan, I was very interested in the case. I was born and raised in Northeast Ohio, attended law school at The Ohio State University, and have voted in every single primary, special, and general election since I turned 18.

During oral argument, I heard many stories of people being aggressively purged for failing to vote and failing to respond to a confirmation notice. I even saw Oak Harbor’s mayor, Joe Helle, confront Secretary of State Jon Husted outside the Court, demanding to know why he, an Army veteran, had been purged from the rolls upon returning from service overseas. Before this case, I disagreed with Ohio’s process in removing voters from the rolls but believed that voting and staying engaged would safely keep people registered. Imagine my surprise a month later when, despite my continuous voting over the past eight years, the state of Ohio sent me a confirmation notice.

Perhaps I should not have been so surprised. After all, Ohio is the most aggressive state in purging its voter rolls. If an Ohioan does not vote in one federal election cycle, the county board of elections sends the individual a confirmation notice. Failing to respond to this notice and cast a ballot in any election in the next four years results in the removal of a name from the voter roll. Secretary of State Jon Husted argues that the failure to vote suggests a person has moved from their address. He does not seem to understand that a voter may miss one election for other reasons, such as not liking the candidates or not being able to navigate a hectic schedule. Other secretaries of state send out confirmation notices when the state has received some affirmative evidence of a move, such as notice from the United States Postal Service.

In discussing the history of the NVRA during oral argument on January 10th, Justice Ruth Bader Ginsburg noted that Congress “didn’t want [a] failure to vote to be a trigger” for the confirmation notices. And it should not be. We should seek to fulfill the purpose of the NVRA— to increase the number of eligible citizens who can register to vote and participate in the franchise—not to remove them from the rolls and keep their voice out of our electoral system. Furthermore, what my situation has demonstrated is that Ohio should not use a process that in addition to shrinking the electorate is also faulty. My confirmation notice proves that you can follow the system and vote in every election, and still face a potential purge from the voter rolls.

Secretary Husted often touts his mission as “mak[ing] Ohio a place where it is both easy to vote and hard to cheat” and has said that “by any objective measure we have achieved this goal.” I disagree. By wrongfully disenfranchising thousands of Ohio voters, the right to vote has been severely diminished. In 2016 alone, more than 70 million registered voters across the country did not cast a ballot, and in the three biggest counties in Ohio, 144,000 Ohioanswere unlawfully purged from the rolls.

In 2016, the United States Court of Appeals for the Sixth Circuit ruled against Secretary Husted and the Ohio voter removal process, finding that the state violated the NVRA by using the failure to vote as a “trigger” for sending voters confirmation notices. The right to vote is a fundamental one and having a “use it or lose it” policy in Ohio is wrong and misguided. This Term, the Court should take a page out of the Husted playbook and make it “easier for people to vote” by ruling that Ohio’s purging process violates the NVRA in Husted v. A. Philip Randolph Institute.

The Curious Case of Geoffrey Berman: What to Make of the Prosecutor Now Installed as U.S. Attorney for the Southern District

by Victoria Bassetti and Norman Eisen

*This piece was originally posted on the New York Daily News.

Geoffrey Berman's appointment to be the U.S. attorney for the Southern District of New York yesterday marks the end of his awkward odyssey to take command of the nation's preeminent prosecutor's office. He has arrived at the post via a circuitous path including a highly unusual interview with President Trump, a 120-day time-limited interim appointment by Attorney General Jeff Sessions, and finally, yesterday, a court appointment after that time expired.

This is not the way U.S. attorneys are supposed to get the job.

The Senate has been bypassed, and New York's two U.S. senators have been cut out too. Both the Senate and the senators serve vital roles in ensuring that Manhattan's top federal prosecutor has been properly vetted and that he will do his job with integrity.

Still, it is not time to cry foul on Berman's appointment. There are reasons to believe that despite the unusual process at work, our legal system is proving resilient to Trump's efforts to warp it — and that this appointment is part of that resilience.

On the way to becoming U.S. attorney, Berman has dipped his toes into Trump's legal quagmire and conflicts multiple times. Berman's most recent moment in the Trumpian spotlight came earlier this month when the FBI raided Michael Cohen's workplace, hotel room and home, executing a search warrant obtained by prosecutors in the Southern District. Curiously, Berman's name was omitted from the court filings.

It emerged he was excluded from any dealings on the case, echoing Sessions' recusal from all things Russia and Trump.

Read more.

Reliance Interests & the DACA Rescission

Recently, legal scholars have become interested in examining the intersection of immigration and administrative law. Related questions include, for instance, whether and how administrative law principles bear on due process in immigration adjudication and on the exercise of prosecutorial discretion in immigration enforcement, and whether immigration should be considered “exceptional” vis-à-vis general administrative law principles. A federal court ruling this week on the Deferred Action for Childhood Arrivals program, or “DACA,” highlights another context for considering this broad inquiry.

DACA was introduced by the Department of Homeland Security (DHS) in 2012 to deprioritize the deportation of noncitizens who were brought into the United States as children. Once procured, DACA status lasted two years at a time, was renewable and conferred temporary work authorization. It did not, however, provide a pathway to citizenship. As President Obama himself noted, DACA was but an impermanent, stop-gap measure, and less rooted than if Congress had passed the DREAM Act.

In keeping with his anti-immigration stance, President Trump directed DHS to end the program last September amidst pressure from the Attorney General and several Republican state attorneys general that threatened to sue to halt the program if the President did not act. Ultimately, he declared (echoing the DHS memo), “The Attorney General of the United States, the Attorneys General of many states, and virtually all other top legal experts have advised that the program is unlawful and unconstitutional and cannot be successfully defended in court.”

This Tuesday, Judge Bates of the federal district court for the District of Columbia decidedthat the Trump administration’s decision to terminate DACA was itself unlawful because it was based only on the “virtually unexplained” grounds that the program was “unlawful.” More specifically, the court concluded that under the Administrative Procedure Act (APA), the rescission of DACA was “arbitrary and capricious because [DHS] failed adequately to explain its conclusion that the program was unlawful.”

What does this mean? And more broadly, how can the court say that it is unlawful for the Trump Administration to rescind a policy issued by the previous administration, even though this policy was never codified in legislation? The answer lies in the application of administrative law to the executive branch’s immigration efforts.

The APA, passed in 1946, is a foundational law governing the actions of federal administrative agencies. By helping to ensure that agencies issue policy in a consistent, reasonable and fair manner, this statute safeguards both the public and the proper separation of powers. The relevant provision of the APA states that a court “shall…hold unlawful and set aside agency action…found to be…arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The Supreme Court has ruled that to meet this standard, an agency must “articulate a satisfactory explanation for its action” that includes a “rational connection between the facts found and the choice made.” More recently, the Court instructed that “when an agency reverses a prior decision, it must provide a reasoned explanation for the change” that addresses the “facts and circumstances that underlay or were engendered by the prior policy,” including any “serious reliance interests.”

Based on this line of doctrine, Judge Bates determined that the Trump administration’s reasons for rescinding DACA, which he said included only “opaque” and “scant legal reasoning” for its declaration that the policy was unconstitutional and at risk for litigation, did not satisfy the APA’s requirements. Moreover, Judge Bates stated, DHS’s “failure to give an adequate explanation of its legal judgment was particularly egregious here in light of the reliance interests involved”:

The Rescission Memo made no mention of the fact that DACA had been in place for five years and had engendered the reliance of hundreds of thousands of beneficiaries, many of whom had structured their education, employment, and other life activities on the assumption that they would be able to renew their DACA benefits. The Supreme Court has set aside changes in agency policy for failure to consider reliance interests that pale in comparison to the ones at stake here. Because DHS failed to even acknowledge how heavily DACA beneficiaries had come to rely on the expectation that they would be able to renew their DACA benefits, its barebones legal interpretation was doubly insufficient and cannot support DACA’s rescission.

Opponents of DACA may argue that because it is not based in statutory authority—namely, immigration legislation securing access to citizenship for the population eligible for DACA—President Trump should be able to eliminate it as he sees fit. However, this view ignores the importance of administrative law to the immigration context. Indeed, all agency policies, including in the highly-political and seemingly exceptional area of immigration, must adhere to the APA. In immigration, as in all areas of governmental regulation, administrative law principles require the executive branch to refrain from exercising its power in a manner that is unjust, overly expansive or lacking in accountability. Accordingly, DHS is not at liberty to rescind DACA without process or explanation now that the public has come to rely on it, despite presidents’ exceptional power to further immigration policy and even if the agency invokes seemingly urgent justifications such as a lack of constitutionality. In the words of Judge Bates once more:

Executive Branch officials possess relatively unconstrained authority to enforce the law against certain violators but not others. Ordinarily, the exercise of that authority is subject to review not in a court of law, but rather in the court of public opinion….When an official claims that the law requires her to exercise her enforcement authority in a certain way, however, she excuses herself from this accountability. [A]n official cannot claim that the law ties her hands while at the same time denying the courts’ power to unbind her. She may escape political accountability or judicial review, but not both.

Per Judge Bates’s order, President Trump and DHS now have ninety days to come up with a justification that satisfies the court.

Meditation on Oral Arguments in the Travel Ban Case

On April 25, the Supreme Court heard arguments in the travel ban case. The argument began with Solicitor General Noel Francisco characterizing the travel ban (formally called a Proclamation) as a narrow one and reserved only for countries who fail to meet the “baseline” requirements needed to vet their nationals. The SG called the travel ban a lawful exercise of power under 8 U.S.C. 1182(f), which allows a President to suspend the entry of any noncitizen or class of noncitizens for such period as he shall deem necessary “[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.” The SG’s legal arguments glossed over the human cost of the travel ban for U.S. citizens and lawful permanent residents seeking to reunite with their close family members overseas.

In response to a question by Justice Sotomayor about congressional limits, the SG argued that 1182(f) gives the President the authority to impose restrictions that go beyond the Immigration and Nationality Act’s (INA) grounds for inadmissibility, such as criminal record or participation in terrorism. The SG also indicated more than once that 1182(f) provides the President authority to “implement” the INA.

In response to a line of questions about the similarities between the travel ban and previous uses of 1182(f) by Presidents Ronald Reagan and Jimmy Carter, the SG acknowledged that the ban is the most detailed Proclamation issued under the statute and further suggested that the “waiver” process contained in the travel ban serves as an “exception” for national security or humanitarian reasons. However, Justice Breyer questioned the viability of the waiver process, citing to examples in amicus briefs and data by the Department of State.  Under the travel ban, to obtain a waiver, the person seeking entry must demonstrate that: 1) denying entry would cause the noncitizen undue hardship; 2) entry would not pose a threat to the national security or public safety of the United States; and 3) entry would be in the national interest and goes on to list ten examples of the type of people who might qualify for the ban, including but not limited to those with a medical need or for family reunification purposes. Pushing back on the implementation of the waiver, Justice Breyer noted that “undue” hardship is a relatively low standard as compared to the “extreme” hardship standard in the INA and stated more than once that among the 150 million people covered by the ban, there must be many who qualify for a waiver. Justice Breyer asked if the waiver provision amounts to “window dressing” and if the process itself had been publicized. The SG did not know how the waiver process was publicized but “suspected” that people know how to get it and went so far as to say that even without a waive the process is lawful.

Unfortunately, what lawyers and advocates have seen on the ground is far less notification and far more “window dressing” with the waiver scheme. As stated in an amicus brief I co-authored with Peter Margulies and WilmerHale on behalf of immigration law scholars, we state “In contrast to waivers under the INA, where applicants receive a waiver decision based on a review of supplemental evidence and specific statutory factors, waiver denials under EO-3 have often been made without consideration of the evidence submitted by applicants.” This last point not only raises concerns about whether the waiver process is even working but also how it like much of the Proclamation conflicts with or attempt to rewrite the INA.

In his opening, Neal Katyal, attorney for Hawaii et al argued that the ban is unlawful for three reasons: 1) it conflicts with Congress’s policy choices; 2) it defies on the bar on nationality discrimination; and 3) it violates the First Amendment.  Coming to this issue as an immigration attorney, the second point is crucial to understanding the degree to which the travel ban clashes with the INA and yet it received little air time during the oral argument. Section 1152(a) of the INA prohibits discrimination on the basis of nationality and other facts in the issuance of immigrant visas.  1152(a) was passed by Congress in 1965, the same year it abolished national origin quotas from the INA. By contrast, the travel ban excludes millions of immigrants for no other reason than nationality. According to Katyal, that includes 39% of all the visas covered by the travel ban. Katyal argued that 1182(f) must be read in harmony with the INA as a whole- to do otherwise would give the President power to countermand the INA and turn it into a “line item veto.”

How the Court will rule remains uncertain. Importantly, the travel ban remains in full effect because of twin orders issued by the U.S. Supreme Court on December 4, 2017 allowing the travel ban to be fully implemented, pending a decision by the Supreme Court. As of this writing the travel ban suspends entry for most nationals from Iran, Libya, North Korea, Somalia, Syria, Yemen, as well as select nationals from Venezuela. I hope the statutory arguments are successful and ultimately provide some relief to the thousands of people hurt by this unlawful ban.

Why the DNC’s Case Against Russia, Trump Campaign is Significant

The Democratic National Committee filed a federal complaint yesterday alleging that Russia, WikiLeaks and the Trump campaign conspired to damage the Democratic Party and help elect Donald Trump. This is a significant case, which seeks to vindicate the interests of the American people in open and uncorrupted elections and to redress damage to the Democratic National Committee and Democratic Party that undermined their ability to communicate their policy positions to the American electorate and their efforts to support the Democratic nominees for President and for other elected offices. But most importantly, the lawsuit lays out the case that the Trump campaign conspired with Russia to gain the presidency.

This complaint alleges a widespread conspiracy that Russia initiated by hacking into the DNC’s computers and stealing thousands of confidential materials. Armed with these stolen documents, the complaint alleges, Russia found eager and willing partners in WikiLeaks and Julian Assange, who along with Russia, publicly disseminated these materials with the purpose and effect of distracting the public’s attention from the positions that the DNC sought to advance and shifting focus away from negative publicity about the Trump campaign. According to the complaint, the Trump for President campaign and some of its most senior associates actively participated in the effort. They publicly and privately encouraged these efforts to disseminate confidential materials from the DNC to breed discord within the population. Assembled together, the facts documenting these efforts present evidence of a malicious campaign to fundamentally alter the course of the election of public officials in this country in 2016.

The complaint draws largely upon public information regarding conduct by Americans who have long been closely associated with Donald Trump. Some of these senior associates of the Trump campaign cultivated an intimate relationship with Vladimir Putin and the Russian government for years. The complaint details the instances in which the Russian government and its intelligence office hacked the DNC computers and stole reams of confidential material, disseminating it to the American public, in violation of a number of laws protecting electronically stored information and constituting conspiracy to engage in such unlawful activity. The complaint also depicts in detail the extensive relationships between the Russian government, the Trump campaign and WikiLeaks, and describes unlawful conduct that qualifies as a racketeering conspiracy.

As such, the case is the first to allege, in open court, what is at the heart of the Russia scandal: the Trump campaign and its associates conspired with Russia and WikiLeaks to aid Donald Trump’s election. As the DNC’s complaint puts it, there was a “conspiracy to disseminate stolen DNC data to aid Trump.”

This evidence, when presented together, satisfies the applicable legal standard set forth in the Supreme Court’s landmark decision in Bell Atlantic v. Twombly, where the Court held that the touchstone for determining whether a complaint states a claim for purposes of a motion to dismiss is “plausibility.” In other words, a plaintiff must allege a plausible set of facts to survive. Another important principle set forth in Twombly is that the trial court must evaluate the complaint as a whole, not piece by piece. And, finally, the court must draw all reasonable inferences in favor of the plaintiff – in other words, at this stage of the proceedings, the plaintiff is entitled to the benefit of the doubt.

With all of that in mind, has the DNC plausibly alleged that the defendants engaged in a conspiracy to disseminate stolen DNC documents to aid Trump’s campaign during the 2016 election. The facts cited in the DNC complaint are based on nearly all public information. Nevertheless, taken together, the facts paint a damning picture.

As alleged in the complaint, Trump’s associates had a decades long history with Russians, much of it centered around questionable, possibly criminal, activity. The defendants shared a common purpose: to bolster Trump and denigrate the Democratic nominee. In July 2015, Trump announced his candidacy for President; weeks later the Russians began hacking the DNC. In April 2016, the Russians began to steal the DNC documents; days later a Russian agent told a Trump campaign official that Russia had stolen Hillary Clinton documents. (The Trump campaign official, George Papadopoulos, later bragged about the stolen documents). In June 2016, Russians offered to help the Trump campaign with stolen Clinton documents, and in response, Donald Trump, Jr. accepted the offer, saying, “I love it.” Days later, the Russians began disseminating stolen DNC email messages. In July 2016, the Trump campaign removed anti-Russian language from the GOP platform; days later Wikileaks began to publish thousands of stolen DNC emails. And, on top of this sequence of events were secret meetings, inexplicable predictions of future disseminations and then repeated efforts by the defendants to cover up their contact with Russians.

Based on these facts – taken together – it is plausible that the defendants conspired to disseminate stolen DNC documents to aid Trump’s candidacy. The known conduct of the defendants and the illegal dissemination of stolen documents establishes an unmistakable pattern. A conspiracy also explains the curious fact that defendants repeatedly acted against their own interests – for example, taking the risk of establishing secret channels of communications with a hostile foreign power. The DNC’s conspiracy allegation is also a plausible explanation for defendants’ relentless effort to cover up their contacts – even when that meant lying to the FBI.

Under the law, a conspiracy is simply an illegal agreement. But a conspiracy does not require a formal, written agreement. In fact, conspirators almost never enter into any such written agreement. All that is required is an implicit agreement, or simply an understanding. As some courts put it, there need only be a “meeting of the minds.”

Here, when taking the facts as a whole, the conclusion is inescapable: the Trump campaign and its associates conspired with a hostile foreign power to seize the presidency of the United States.