LGBTQ v Religious Rights?: The 2015 Kurz Chair public event

As the Herbert Kurz Chair in Constitutional Rights at Brooklyn College, I have the opportunity to create public programming for the College community and general public about the possibilities and limits of using the U.S. Constitution to protect politically vulnerable minority groups.  In past years, I have taken on the topics of Stop and Frisk, school desegregation, and last year, immigration reform.  Consistent with past practice, I bring in an outside expert and also tap Brooklyn College's own talented faculty.  This year, I take on the issue of LGBTQ versus religious rights.

LGBTQ vs. Religious rights?

The media casts these rights as in opposition, but is this the only way these issues can be framed?

Having overcome anti-sodomy laws, overturned the military’s Don’t-Ask-Don’t-Tell policy, and achieved marriage equality, the LGBTQ movement is at a crossroads.  Despite the Supreme Court’s recent landmark ruling in Obergefell v Hodges (2015), the marriage equality case, sexual orientation as a category, unlike race, sex, and gender, has not been elevated to a protected class. The consequence is that LGBTQ citizens may still be open to discrimination in employment, housing, adoption, and other areas of public and private life.

At the same time, the United States has a long and proud history of respecting the free exercise of religion.  Are we as a nation prepared to force religious persons to act against their sincere and deeply held religious beliefs and conscience? How do we balance LGBTQ claims to equal treatment against those claiming religious freedom? Are these two sets of claims mutually exclusive?  Is there any way to reconcile them that would be fair or acceptable to both? 

WHO:  Helping us sort through these questions are one visitor and one of Brooklyn College's own.

Steve Sanders of the Indiana University's School of Law, a nationally recognized expert on constitutional law and the legal issues of same sex couples and their families, conflict of laws, federalism, and academic freedom.  He has also argued a case before the Supreme Court.

Paisley Currah, a political scientist and pioneer in the field ofsexuality and gender studies and founding co-editor of TSQ: Transgender Studies Quarterly.  His areas of expertise are in LGBT studies, queer legal theory, public policy, and political theory.  

WHEN:   Monday, October 26, 2015, from 11am -12:30PM  

WHERE:  Woody Tanger Auditorium, inside the Brooklyn College Library (Bldg #13 on the map)

2014 Herbert Kurz Chair Roundtable: The Politics of Immigration and Citizenship--Past as Prologue

As the Herbert Kurz Chair in Constituional Rights, each year I have the pleasure of putting together public programing around the theme of constitutional rights.  In 2012, we took on NYPD's controversial Stop and Frisk policy.  Last year, to commemorate the 60th anniversary of Brown v Board of Education, we tackled school desegregation.  This year, we investigate the politics of immigration, a subject that has been described as the "new third rail of American politics."

Individuals and groups as diverse as the NAACP, Mark Zuckerberg, Al Sharpton, MALDEF, SEIU, the Chamber of Commerce, and many others including leading CEOS in the Silicon Valley have loudly called for comprehensive immigration reform.  Zuckerberg has said that immigration is the civil rights issue of our time.  All feel that the system is profoundly broken and is harming individuals and families, and also puts U.S. businesses in an uncompetitive position.  In the summer of 2013, the U.S. Senate passed a comprehensive and bipartisan immigration bill.  The initial elation quickly evaporated when the House failed to follow suit and openly stymied the process.  The immigration reform effort was declared officially dead in the summer of 2014.  Was immigration reform always mission impossible?

To address that question and related ones, I am convening a round-table of prominent immigration scholars who study immigration in historical context.  Common to all the participants is that they believe why something happens in American politics is often explained by when it happens.  These scholars are adept at drawing insight from our immigrant past to explain our present. 

WHAT:      Round-table on the politics of immigration and citizenship

WHEN:     Thursday, October 16, 4:30-6pm, with informal reception to follow

WHERE:  CUNY Graduate Center,  365 Fifth Avenue (@ 34th St.), Sociology Lounge (Room 6112)

WHO:  The participants are prominent immigration history, law, and public policy scholars.

Cybelle Fox, Assistant Professor of Sociology, UC Berkely, author of  Three Worlds of Relief that won 6 book awards.

Rebecca Hamlin, Assistant Professor of Political Science, Grinnel College, author of the recent Let Me Be a Refugee.

Rogers Smith, Christopher H. Browne Distinguished Professor of Political Science, U. of Pennsylvania, and author of Civic Ideals, a finalist for the 1998 Pulitzer Prize in History.

Dan Tichenor, Philip H. Knight Professor of Social Science, U. of Oregon, and author of Dividing Lines, winner of the Gladys Kammerer Award.

As moderator, I have asked the participants to take 3-5 minutes to address what aspect of our immigrant past best illuminates our current situation, and then we will immediately open the floor to audience questions.

McCullen v Coakley, When a qualified right trumped a fundamental right

Yesterday the Supreme Court issued its opinion in McCullen v Coakley, about a Massachusetts law that creates a 35 foot buffer zone around abortion clinics.  The Court unanimously struck down that law as an impermissible violation of one's speech rights.  Apparently in yesterday's decision, the Court left intact their finding in Hill v CO that Colorados's law that persons cannot "knowingly approach" a person without that person's consent within 100 feet of an abortion clinic to talk to the person, hand them a leaflet, display a sign, or engage in conversation or protest.  The issue seems to be the manner in which the MA law restricted speech.  The Court apparently believed that the persons whose free speech rights were being infringed upon were not "protesters" (who are allowed outside buffer zones) but, persons who are sidewalk "counselors" who  "seek to engage in personal, caring, consensual conversations with women about alternatives."  Egregiously the Court has privileged the zealots speech rights over one's fundamental right to privacy.

How is the Massachusetts law a restriction of speech?  It just restricts the place that speech can take place. There is no unqualified, unrestricted right to speech.  Through many cases, except this one, the Court has said that one's free speech rights is relational to the public welfare and public safety also.  Speech never was an absolute right.  The Court noted there was not enough evidence for the MA law. Huh?  Indeed, Massachusetts had passed the law to address not just the harassment and intimidation women face upon entering the clinics, but also outright violence as evidence by the shooting rampage at two clinics in 1994.  So the Massachusetts law restricts speech within a space roughly half the distance from a pitcher's mound and home plate, and only in that space.

This case is not about free speech being balanced against the autonomy of women.  What happened to a women's right to privacy, which the Court has said is a fundamental right?  I don't mean the privacy that underwrites the Roe v Wade case that grants a right to an abortion.  I mean more practical immediate privacy.  Planned Parenthood and other women's health clinics typically provide not just abortion services but mammograms and pap smears.  Does every women have to explain herself to the sidewalk "counselors" as she enters a clinic about what actual health services she is about to receive?  Or more likely, are the "counselors" simply going to assume that any and every woman walking into a clinic is going to get an abortion and therefore bestow their "counseling" on all entering women anyway.  What happened to the privacy rights of women granted in Griswold v CT of a woman to choose to discuss her health concerns only with her doctor and medical staff? Or to paraphrase former Justice Louis Brandeis, the right to be left the fuck alone?

The opinion really raises more questions than it answers.  When does "quiet conversation" cross the line into intimidation and harassment?  I don't have to raise my voice or swear to be intimidating.  Questioning/badgering/asking for moral justification of someone about their private life choices, even in the most "polite" way, can be intimidating and harassing.  Why does some religious zealot with no actual psychological or social work counseling get elevated to "counselor" who is entitled to offer their uninformed and unwanted ideological opinion to women?  And are such laws really neutral in application? How many "counselors" outside of these clinics are abortion supporters affirming the woman's right to choice?

So much for one's fundamental right to privacy.

With Friends Like These...Rahm Emanuel's Advice to then President Clinton on Immigration

It's apparently been 12 years since the Clinton White House and some of the presidential documents are now being unsealed.  (h/t Corey Robin) This memo was in that trove, an internal memo by Rahm Emanuel, then Clinton's adviser now Mayor of Chicago, advising Clinton on immigration and other issues.  (The immigration discussion begins on the bottom of page 3 of the memo.) The tone is the cut and dried matter-of -factness of any policy memo, and Machiavellian.  The overall advice is to be like Nixon(!), be tough on crime, a perennial weakness of Democratic candidates, by coopting some GOP language and strategies.

Some historical context:  by the time President Clinton read this memo, the Anti-Terrorism and Death Penalty Act (AEDPA) had passed and so had the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  AEDPA was passed on the one year anniversary of the Oklahoma City bombing, and it is worth reminding everyone that terror attack was carried out by a home grown terrorist.  But both AEDPA and IIRIRA had profound immigration consequences.  It worked to eliminate waivers to deportation (usually granted based on close ties to U.S. citizen and Lawful Permanent Resident Family members) ,and strip federal court review for immigrants convicted of serious crimes.  (Side note:  anyone who read my book knows why federal court review is often the last line of defense against administrative errors.) It also created mandatory detention for all, including persons seeking political asylum. 

The laws also greatly expanded the kinds of crimes considered "serious", which depended on state law definitions of crime, which of course vary across states.  In short, AEDPA and IIRIRA made it much easier for the government to deport people. Immigrant advocates decried the legislation as unnecessarily punitive.  The list of horribles is enumerated here.  No immigration attorney or anyone who cares about due process likes these two bills.  Thousands of mix status families (some immigrant, some U.S. citizen in the same family) have been torn apart due to these laws.

Now, reading Emanuel's Nov. 1996 memo to Clinton, we know that Emanuel didn't think they went far enough with AEDPA and IIRIRA. 1)  He counsels Clinton to expand a hearing program that will result in "record deportation of criminal aliens".  2) Taking a page out of the McCarthy Era described in Patrick Weil's book, he advises that Clinton should call a one month moratorium on naturalizations to review cases for "criminal misconduct" so Clinton can look tough on crime. 3)  He advises that Clinton force the INS to expand an employment verification procedure so that Clinton can claim certain industries are now "free of illegal immigration", even though that procedure is flawed.  4) He counsels what every other Democratic and Republican president does, which is to announce periodically resources to be thrown at the southwestern border, whether it is efficacious  or not, but for the sake of political theater.  5)  He suggests enlisting the Coast Guard to help police immigration which "avoids the charge of militarizing the border."

Notably, all Emanuel's suggestions are about enforcement on immigrants instead of providing relief of any kind.  Moreover, his advice does not include cracking down on U.S. employers who hire immigrants and therefore also break immigration law, by deploying more resources to interior and worksite enforcement and strengthening sanctions and financial penalties against those who hire the undocumented.  Without turning off the magnet attracting undocumented immigration, Emanuel's suggestions just further hurt immigrant families while letting exploitative U.S. employers off the hook

It's reasonable to assume that Emanuel passed along his electoral policy suggestions to Obama as well, but Obama's huge deportation rates are now coming back to bite him and his party with Latino constituents.  And the worst thing is Clinton and Obama seemed to have followed Emanuel's suggestion to deport "a record number" of people, but they have not targeted criminal aliens and instead bagged many persons who happened to be in the wrong place at the wrong time and who were indeed in violation of immigration laws and minor crimes, but were not hardened criminals.

Dude,  with "liberal" presidents "friends" like Bill Clinton and Rahm Emanuel who are trying to out-law-and-order the GOP, who needs enemies?

McCutcheon: Speak Loudly by Carrying a Huge Wad of Cash

Judicial modesty is on life support.  Restrictions on campaign spending are starting to look positively quaint.  An activist Court has struck again.  The conservative turn taken by the federal courts in about 1980s was viewed as a reaction to the liberal Warren Court.  But as Tom Keck has argued in his outstanding book, The Most Activist Supreme Court in History, observers had expected a return to judicial restraint.  Instead, the Rehnquist Court and now the Roberts Court, while upholding most of the Warren Court rulings, also created their own brand of "conservative activism" by overturning long settled law in several areas including and not limited to campaign finance.  In so doing, one of the Roberts Court's distinction is unleashing an unprecedented flow of cash into campaigns and elections.

The opening salvo in dismantling limits on campaign contributions put in place for decades by Buckley v Valeo  (1976) began with Citizens United in 2008.  Buckley v Valeo had created dollar amount limits that an individual could contribute to a candidate, political party, and political action committee. The decision upheld laws passed in the aftermath of the Watergate scandal that had the intent to restrict cash flowing into the electoral system because of the unscrupulous practices that may result.  Moreover, in the per curiam decision the majority noted that Congress was right to guard against not just actual unscrupulous behavior, but even "the appearance of impropriety".  424 U.S. 1 @ 30.   (Buckley also  held that a wealthy individual could spend unlimited amounts of his/her own money in an effort to get themselves elected to public office).  

Citizens United did not address these individual limits but instead took up the question how much corporate entities and unions could spend in campaigns and elections and whether these entities had to disclose their spending which is now equated with "political speech".  These entities did so by challenging The Bipartisan Campaign Reform Act (BCRA).  In that case, the Roberts Court returned a sweeping decision which granted corporate entities the same status as individual persons saying that if individuals had protection for free speech, so did corporations and unions.  Further, this speech right of corporations cannot be limited to a dollar amount, although the spending of corporations cannot be done in active concert and affiliation with a party or candidate.  That decision has been roundly criticized, not the least by conservatives like Judge Richard Posner of the 7th circuit.  Posner writes:

The Supreme Court allows donations to political campaigns to be regulated (and limited) because of fear that donations unlimited in amount corrupt the political process, because the candidate recipient knows that a donor of a large amount of money expects something in return, usually favorable consideration of a policy that would benefit the donor, and hence a large donation is likely to be a tacit bribe. But the Court, rather naively as it seems to most observers, reasoned in the Citizens United case that the risk of corruption would be slight if the donor was not contributing to a candidate or a political party, but merely expressing his political preferences through an independent organization such as a super PAC—an organization neither controlled by nor even coordinating with a candidate or political party.

Posner's goes on to question the ability of anyone to police the "coordination", or collusion between corporations and campaigns/candidates and he absolutely rejects the idea that more cash poured into campaigns equals a more informed citizenry since most of the ads don't aim to smear the opponent instead of actually educating in a positive way.

I disagree with Posner that the Citizens United majority was naive.  The conservative majority knew full well what would result.  The Roberts Court in Citizens United and McCutcheon seem to be thinking one thing:  payback.  Now that the conservatives have the majority on the Court, they will unabashedly reshape society through laws into their preferred view.  The Warren Court had mollycoddled the poor, minorities, and criminal defendants enough--it's time now for the moneyed interests to get some love.  They have accomplished this task by creating the legal fiction of corporations having speech rights like persons and in equating spending to speech.

Thanks to Citizens United, corporate interests can now not only spend unlimited amounts on campaigns, but also hid behind bland labels like Restore Our Future and FreedomWorks for America.  How this move and those in McCutcheon avoid the appearance of impropriety is a mystery.

Now comes McCutcheon v FEC to follow up on easing limits on individual donors.  Although McCutcheon is a less sweeping decision than Citizens United, it does the following as described by Lyle Denniston at SCOTUSblog:

The per-donation limits now in effect that the Court did not disturb are $2,600 per election to a candidate (with primary and general elections treated separately), $32,400 per year to a national party committee, $10,000 per year to a state or local party committee, and $5,000 per year to a regular political action committee (but that cap does not apply to the new “Super PACs” that only spend independently and do not give money to candidates).

What the Court struck down were these two-year ceilings that would have been operating during 2013 and 2014: $48,600 to federal candidates, and $74,600 to political committees.  Of that $74,600, no more than $48,600 can be donated to state and local party committees and PACs.

The majority in McCutcheon believes that by leaving the individual spending limits to each candidate, party, and regular PACs in place, these restrictions will be enough to prevent corruption which in Citizens United they had defined as preventing "quid pro quo corruption". (pg. 3 of the District Court opinion).  Donors are now free to send unlimited amounts not on one candidate, but on many, say to fund 500 Republican candidates instead of spending it all on 5. 

Of my many objections to McCutcheon, I will point out one that many other analysts have already indicated, and that is the cramped definition of "corruption" as only of the quid pro quo variety.  When a donor, whether a corporation or an individual gives a candidate a large sum of money, few hand over the cash without expectations, even if those expectations are not explicitly stated.  The burden of the obligation felt by the candidate to the large donor may be unspoken but no less weighty on the recipient. 

Lawrence Lessig has objected to the overly-narrow and ahistorical conception of "corruption" being used in Citizens United and now McCutcheon.   He notes that the framers, whom Scalia and Thomas allegedly hold up as authorities, had a far more expansive definition of "corruption":

What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.

When I read the miserly definition of "corruption" as only encompassing quid pro quo malfeasance, it brought to mind then Assistant Attorney General John Yoo's definition of torture as: “The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result.”  By so narrowly defining "corruption" Citizens United and McCutcheon leave as possible many permutations of undue influence that would fall short of, but be no less damaging to our democracy than quid pro quo corruption.

The success of the NAACP to dismantle the wall of racial segregation took more than half a century.  Copying the tactics of the NAACP, conservatives will likely bring down attempts to hold back the undue influence of the rich on the electoral process much sooner by taking brick by brick out of the wall that guards against undue financial influence in elections.  As one of my former students who is a fundraiser for the DNC notes, the immediate effect of flooding the electoral system with money is that we get people running for public office who are not necessarily the best leaders or statespersons--just the best fundraisers.  The long term effect of these decisions remain to be seen.

2014 Kurz Chair panel: Are we More Equal? 60 years after Brown v Board

In my position as the Herbert Kurz Chair of Constitutional Law and Civil Liberties at CUNY Brooklyn College, I have the ability to create public programing about constitutional law and civil rights issues that are of concern to our Brooklyn College community and to citizens more broadly.  The first inaugural Kurz Chair panel last year was a vigorous discussion of NYPD's controversial Stop and Frisk policy.  I am equally excited about this year's event and invite all to attend.

WHAT:  2014 Kurz Chair panel

WHEN:  April 7 from 12:50 to 2:15 pm

WHERE:  CUNY Brooklyn College's student center at Campus Road and E. 27th Street, State Lounge, 5th Floor (Bdlg. 1 on linked campus map)

WHO:  All are invited.  This year's group of scholars are education integration experts and they will assess the legacy, progress, and challenges that remain after the Supreme Court's landmark Brown v Board decision.

The distinguished panelists include:

David Bloomfieldis a Professor of Education at Brooklyn College with a joint appointment at the Grad Center’s Urban Education Program. He is the founding chair at Brooklyn College Dept. of Childhood, Bilingual, and Special Education.  His areas of expertise include education law, legislation and policy; school and district management; parent and community outreach and NYC school governance.  He is a former elementary and secondary school teacher; general counsel, NYC Board of Education; general counsel and senior education adviser to the Manhattan borough president; Exec. Dir. for public education programs.  He is the author of American Public Education Law(Peter Lang, 2011) and many other articles and book chapters about education policy.

Chris Bonastiais a Sociologist at CUNY Lehman and the Grad Center who specializes race and politics in historical perspective. His second book, Southern Stalematewith University of Chicago Press examines Prince Edward County, Virginia, the only school district to close its schools for an extended period–1959 to 1964–rather than desegregate them. Bonastia describes the struggle over education during the civil rights era and the human suffering that came with it, as well as the inspiring determination of black residents to see justice served. Artfully exploring the lessons of the Prince Edward saga, Southern Stalemate unearths new insights about the evolution of modern conservatism and the politics of race in America.

Karolyn Tyson is a Sociologist from UNC Chapel Hill. Her expertise is in the sociology of education, equality of educational opportunity, and qualitative research methods. She is particularly interested in understanding the complex interactions between schooling processes and the achievement outcomes of black students. Tyson has published Integration Interrupted: Tracking, Black Students, and Acting White after Brown (Oxford, 2011). The book examines how and why black students have come to equate school success with whiteness. Based on more than ten years of research, Integration Interrupted shows how the practice of curriculum tracking in the aftermath of the Brown vs. Board of Education decision contributed to students casting academic achievement as a “white thing.”

I wish to thank all the cosponsoring units and departments listed below for their support of the event.

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Panel Poster Draft9 middle text-1

"Lucky you live Hawaii" and the progressive politics of the Aloha State

"Lucky we live Hawaii" is what the kama'aina (long-term residents) say to each other, especially this time of year when the U.S. mainland is suffering extreme inclement weather. But there are other reasons for progressives to be grateful they live in the Aloha State. Yesterday the Washington Post published an article on how Hawaii's politics is very much in line with Obama's policy vision.  (Honolulu is also my hometown although I now live in NYC.) As reporters Rucker and Goldfarb write, many of Obama's long cherished policy priorities that he could not successful implement at the national level have already been or are on their way to being implemented in Hawaii.  They write:

Four decades before Obama’s Affordable Care Act, Hawaii enacted its own sweeping health-care mandate. To lift the economy, the state has poured billions of dollars into rebuilding highways and infrastructure, bringing the unemployment rate down to an enviable 4.4 percent. Gay marriage is legal, immigrants are welcomed, labor unions are strong and — if the governor gets his way this year — universal pre-kindergarten will be the law of the land.

There are of course many reasons for this situation. The main one is due to the political composition of the state at the local and national level institutions. Not only is there no Tea Party, there is also no real GOP opposition because the state is effectively a one-party state with liberal Democrats holding the State Legislature and national offices as well. The Post article, though, also points out the heavy reliance of the 50th state on federal spending, namely federal military spending that comprises 13.5% of the state's economy.  Until his death, the state also benefitted greatly from Daniel Inouye's seniority in the U.S. Senate and his abilty to bring home the bacon.

Still, federal spending cannot account for the high level of racial and ethnic tolerance of the state, which is rooted in the ethnic/racial diversity of the state and the geopolitical location of the state that serves as a gateway for Asia to the U.S. mainland. The state always has been majority-minority long before that term even came into being.

The state has no immigration problem. As the Post article reports, Governor Abercrombie said recently, “We don’t have this border problem...We don’t worry about that in Hawaii. We welcome people coming because the hospitality industry in particular— we’re ready for immigrants to come in because everybody works, everybody wants to succeed.” The main industry of the state is tourism. Being an island state, there is no long land border with Mexico or Canada. That fact combined with its ethnic and racial demographics of the state mitigate any anti-immigrant sentiment.

Indeed, "lucky you live Hawaii."

Record deportations, who benefits?

Who is benefiting from the record deportations carried out under the Obama Administration? Julia Preston wrote in The New York Times today that despite a 10% drop in deportations compared to last year, Obama still holds the overall record for the most deportations for any American president.  We learn from the article that the Administration is saying that they are simply fulfilling a congressional legislative mandate that X number of beds in detention centers be filled each day with immigrants.  As Preston wrote:

Administration officials said removal numbers were determined by a requirement, included by Congress in the immigration agency’s appropriations, to fill a daily average of about 34,000 beds in detention facilities. The mandate, which is closely monitored by oversight committees, amounts to about 400,000 removals a year.

That's the Administration's story and they're sticking to it. Surrogates are quick to trot out Obama's vaunted prosecutorial discretion at every opportunity, noting that Obama has instructed DHS not to deport noncriminal immigrants with ties to families in the US. In the Times article, acting director of ICE John Sandweg stated, "We want to fill the beds with the right people, that is, public safety and national security threats and individuals we are required by law to detain.” But as Preston and others' reporting note, it is becoming increasingly difficult to draw the line between high and low priority deportees.

More disturbing are the ties between the private prison industry and Congress. Three main private prison firms have contracts with the Department Homeland Security to house immigration detainees since federal and state prisons are overwhelmed. The private prison industry has enjoyed a boom thanks to undocumented immigration and the limbo that immigration reform is in. CBS reports that in 2011, 50% of immigration detention facilities were run by private firms "with little federal oversight" and that "The industry's giants - Corrections Corporation of America, The GEO Group, and Management and Training Corp. - have spent at least $45 million combined on campaign donations and lobbyists at the state and federal level in the last decade, the AP found."

So who is actually benefiting from Obama's aggressive deportation policies and Congress' mandate that taxpayers must pay to keep 34,000 people in jail, at a cost of about $120 each per day? Bloomberg News has also confirmed that this is in fact a "detention quota" and that the privatization of the prison industry is a growing trend. As usual, follow the money trail.

Obama's expansion of presidential power in immigration and healthcare

BLT:  The Blog of the Legal Times reported yesterday that t a House Judiciary hearing yesterday, several constitutional scholars took Obama's recent actions in health care and immigration to task as unconstitutional expansions of presidential power.  (h/t Dan Kowaloski) 

Professor Jonathan Turley of Georgetown Law criticized the steadily expanding power of the presidency since George W. Bush.  With regard to Obama, he stated that the present administration has "an undeniable pattern of circumventing Congress in the creation of new major standards, exceptions, or outright nullification."  Turley accused the Obama Administration of allowing Executive Branch administrative agencies to determine their own jurisdictions. 

I've already noted the reason for the expansion of lawmaking via administrative agency rule changes, which is due to they gridlock and dysfunction in DC have made more substantial  legislative changes impossible.  (For further confirmation of that point, see the recent NYT article about the do nothing, underachieving House of Representatives.)

Regarding immigration in particular, Professor Nicholas Rosenkranz of Georgetown Law criticized Obama for his directing the Department of Homeland Security to deport certain kinds of immigrants (mainly serious criminals) while not deporting DREAMER eligible immigrants, and those with minor children in the U.S. and no criminal record.  Rosenkranz regarded Obama's use of this kind of  discretion as "not within the traditional conception of prosecutorial discretion."  His objection seem to arise from the scale of Obama's instructions, which conservatives have derided as instructing DHS not to enforce the immigration laws on the books, while liberals view it as an exercise of compassion.

Some larger questions that struck me as I read the constitutional law professors objections to Obama's recent actions are:  Is there an inverse relationship between Congress inaction and the expansion of presidential power?  Also, what are the consequences of small-bore lawmaking via incremental administrative agency rule changes in lieu of more lasting legislative change?  My sense on the latter question is that small-bore rule changes are only minor patchwork fixes to the badly broken immigration system and that legislating via rule changes works against the transparency a democracy needs to thrive.

Conservative Student Group's unintentional lessons in "Catch and Illegal Immigrant" game at UT Austin

Gawker reports that the University of Texas at Austin's Young Conservatives group is doing a "catch an illegal immigrant" event tomorrow.  (UT Austin is my alma mater where I got my PH.D.) The group's Facebook events page (since removed) described the game as follows:

YCT will be having a "Catch an Illegal Immigrant" event this upcoming Wednesday. The details of the game goes as follows:

There will be several people walking around the UT campus with the label "illegal immigrant" on their clothing. Any UT student who catches one of these "illegal immigrants" and brings them back to our table will receive a $25 gift card.

The purpose of this event is to spark a campus-wide discussion about the issue of illegal immigration, and how it affects our everyday lives.

The University has responded  forcefully, warning that anyone that participates in the event will be acting in violation of the University's honor code. This just in, after intense backlash over the event including from conservatives, the event has been cancelled.

The irony in this episode is so thick you can cut it with a knife.  Upon cancelling the event, the organizer, Lorenzo Garcia, expressed shock and admitted the game was “misguided” and “intentionally over the top.”  ABC News also reports that, "members of the chapter feared retaliation...'I spoke with our chapter’s members, and they are both concerned that the university will retaliate against them and that the protest against the event could create a safety issue for our volunteers.'"Garcia said.

We, the decent public, have Lorenzo Garcia to thank for the following:

1)  Keeping the immigration issue in the news when it is just about dead in terms of legislative viability in this term.  Thanks for making sure it went into one more news cycle.

2)  Highlighting the absolutely arbitrary nature of one's immigration status.  Randomly pinning students around campus with a sign that reads "illegal" is surprisingly similar to the randomness of the birth lottery for those who are lucky enough to be born on U.S. soil.

3)  Highlighted the fear and psychological unease of the undocumented population who have to constantly look over their shoulder for fear of retaliation from the authorities.

Somehow, I don't think those were the lessons Garcia was aiming for.

TSA checks you before you check in--"Minority Report" in 2013

As the surveillance state expands, are we drawing closer and closer to the world of "Minority Report"?  In the 2002 futuristic thriller "Minority Report", Tom Cruise and a team of "Pre-cops" work in the "Pre-Crime" unit in Washington, DC to stop crimes before they are committed.  The team taps the powers of a few gifted humans who can see into the future to identify crimes, criminals, and victims before the crime ever takes place.  With the advanced intel, the Pre-cops can be waiting on the scene and arrest the perpetrator before the crime even takes place.

Today's New York Times reports that TSA has now taken to checking up on passengers before they even reach the airport. (h/t Anil Kalhan) The TSA has been searching "a wide array of government and private databases" of passengers before they arrive at the airport.  These records can include your car registration and employment information.  Like the Pre-Cops in "Minority Repor", in effect, what TSA is doing is a "pre-crime assessment" as one of the critics in the article pointed out.  The stated goal of this new and more invasive policy is "efficiency", that low risk passengers will get less screening and high risk passengers will get more screening, thereby speeding up lines at checkpoints. The problem is passengers who are slotted into the "high risk" category are still in for multiple searches and delays.  The larger problem is how one ends up being tagged as "high risk".  The Times states:

Critics argue that the problem with what the agency calls an “intelligence-driven, risk-based analysis” of passenger data is that secret computer rules, not humans, make these determinations. ...Privacy advocates have also disputed whether computer algorithms can accurately predict terrorist intent.

Even more outrageous is that the TSA data will be shared with other government agencies and private companies who may have a non-travel security interest in your personal information.  The  article explains:

Much of this personal data is widely shared within the Department of Homeland Security and with other government agencies. Privacy notices for these databases note that the information may be shared with federal, state and local authorities; foreign governments; law enforcement and intelligence agencies — and in some cases, private companies for purposes unrelated to security or travel. (Emphasis added)

So your information gleaned by TSA may be forwarded to debt collection agencies and your fingerprints may be sent to the FBI to check against an unsolved crimes database.  No crime need actually be committed, no warrant,  and no probable cause is necessary--TSA gathers this information on you and disseminates it to outside groups just based on your desire to travel. 

I understand the premise of security checks, that they aim to prevent terrorist attacks or mass crimes, by identifying plots before they can be carried out.  That options is preferable to a security system that searches for perpetrators only after a mass crime has been committed.  I get it.  But this is where the parallels to "Minority Report" end.  In the movie, people are arrested in advance of a crime because there is reliable data from seers that can accurately predicting the future.  You could call that evidence, incontrovertible evidence even.  But in the USA 2013, instead of a presumption of innocence until proven guilty, the indiscriminate Hoovering of all travelers' data means just the opposite, that everyone is suspected of a future crime unless they can prove otherwise to a computer algorithm that the way in which you live your life is not suspicious. 

In the name of national security, the surveillance state has expanded its tentacles to reach every aspect of our  lives.  NSA collects metadata on your phone calls, emails, internet searches, TSA is now aggregating information on you that it stores in one database and then shares with other entities.  We are rapidly approaching the point where there truly are no more secrets.  "Privacy" is a word and concept that has no direct translation into Chinese. "Minority Report" is set in the year 2054 A.D. By the year 2054 in the United States, will "privacy" become obsolete?  Well, I suppose that's one way to seek common ground and build mutual understanding with Chinese citizens.

Oral argument for Citizens United II is this Tues.: "Leave no millionaire behind!"

The first Monday of every October marks the beginning of a new Supreme Court term.  This term, the Supreme Court has accepted about 50 cases, touching upon the most pressing political issues of the day including affirmative action, abortion, freedom of speech as it pertains to religion, presidential powers, and campaign finance, again.  Campaign finance watchdog groups have dubbed the case, McCutcheon v Federal Election Commission, "Citizens United II".  The questions are, "Will the legal result be the same as in Citizens United I and what would that mean for our political process"?

Recall that in Citizens United I decided in 2009, the Supreme Court, voting along party lines 5-4, opined that the First Amendment protection of the freedom of speech extended to corporations and unions who could now spend unlimited funds on political speech.  While these entities cannot contribute directly to a campaign or candidate, they may run ads or persuade the public or use other measures.

In his swan song, Justice Stevens read his partial dissent from the bench, a rare practice that signals vehement disagreement with the majority.  Since leaving the bench, he remains critical of that case, speaking out against it frequently like he did at a talk at a recent talk at the University of Arkansas where he stated:

"[T]he Court must then explain its abandonment of, or at least qualify its reliance upon, proposition that the identity of the speaker is an impermissible basis for regulating campaign speech...It will be necessary to explain why the First Amendment provides greater protection to the campaign speech of some non-voters than to that of other non-voters." 

He may get his wish soon.  Stevens of course was referring to the Court majority's novel interpretation that corporations and unions are "persons" and possess the same First Amendment rights to free speech as real persons. Critics like Dahlia Lithwick have called this construction outright legal fiction, an assumption used by the Court to apply "facts" that are not necessarily true in a manner that is not intended for the purpose, purely out of desire to resolve a legal dispute.

What did Citizens United I begat? Today we are in the midst of a government shutdown that is enabled in part by Citizens United I. As Sheryl Gay Stolberg and Mike McIntire write today in The New York Times the seeds for the current shutdown were planted months ago via a "well-financed, broad-based assault on the health law" that has been waged by "a galaxy of conservative groups with more money, organized tactics, and interconnections than is commonly known." Stolberg and McIntire detail for example the Koch Brothers expenditure of nearly 200 million dollars to fight the Affordable Care Act. As well, other conservative groups have kept and published "scorecards" to pressured vulnerable Republicans Members of Congress on their healthcare votes.

Indeed there is now so much cash flowing that the two NYT reporters had trouble keeping track of the complex organizational structures which filtered and funneled this stream into the process. They wrote, "A review of tax records, campaign finance reports and corporate filings shows that hundreds of millions of dollars have been raised and spent since 2012 by organizations, many of them loosely connected, leading opposition to the measure." The article does not mention Citizens United I by name, but all this infusion of conservative cash (whose provenance is unclear) to super-PACS and nonprofits, has been enabled by that decision.

Now comes McCutcheon v FEC aka Citizens United II, which is not about placing limits on the political spending of entities like corporations and unions, but on individuals. At issue in this case is the aggregate maximum amount an individual may donate to a candidate or political party in a two year election cycle. Sean McCutcheon, an Alabama businessman and GOP supporter, argues that the limits (currently $123,200 per person) act to constrain his free speech and ability to advocate for certain candidates and causes.

Given that Citizens United I has already allowed donors to hide from the public while they dump torrents of money into the political process, what difference would Citizens United II make? The issue seems to be one of direct versus indirect influence on political parties and candidates. Citizens United I enabled the creation of super-PACS and non-profits that were not beholden to the parties or the candidates and outside of the formal political institutions. Citizens United II would allow the parties and candidates to partake in that stream of money currently going to outside groups that are not directly within the political process. In the end, all this to the average voter may be hairsplitting and semantics.   If Citizens United II overturns the existing individual limits, party leaders and candidates will be able to seek out a few fat cats to write checks and ignore average voters who don't have those means. Citizens United I was bad enough, but now we are faced with a possibility of Citizens United II to cover the few horses who didn't flee the barn the first time around. "Leave no millionaire behind!"

Heartening responses to anti-Muslim discrimination

Just in time for the anniversary of the 9/11 attacks, the often gimmicky show "What would you do" does a segment on reactions to anti-Muslim discrimination.  One hopes it is one of the positive legacies of the terror attacks.  Most of the reactions shown in the segment are heartening, especially the righteous response of a uniformed member of the military. (h/t Don Zinman)

Stephen Colbert skewers Stop and Frisk

Colbert:  Stop and Frisk has been outlawed by an activist judge based "On the bizarre theory that minorities have a constitutional right not to be manhandled by strangers, despite the fact that when the Constitution was written, minorities weren't even invented yet." 

Constitutional law geeks like me would argue that Colbert is techncially correct given that the 14th Amendment's guarantee of equal protection of the laws was many years away as was the U.S. v Carolene Products, FN4.

Are the proposed reforms to the surveillance state only cosmetic?

Every since Edward Snowden disclosed numerous government programs which were collecting the metadata of Americans, there has been a national conversation about surveilance, privacy, national security, and the rule of law.  Only now, and under pressure from a public lack of confidence, are proposals being put forth that would curb these practices.  But are these real reforms to the surveillance state or just another spin and PR job on the public to manage appearances of the operations without actually substantively changing them?

The Administration has tireless argued that with all the surveillance programs, Members of Congress were briefed and federal judges had overseen the operation.  But in today's Washington Post, Peter Wallsten detailed some of the obstacles to lawmakers actually being able to gain real understanding enough to provide real oversight to surveillance programs.  Reforms are in the works, in response to pressure from a small but bipartisan group of lawmakers and from the public.  But one wonders about the real motive for these "reforms".  Wallsten for example writes that Senator Feinstin (D-CA) has called for a "major review" of these programs and that :

A similar effort is being planned by the Republican chairman of the House Intelligence Committee, Rep. Mike Rogers of Michigan. The reviews are geared toward increasing public confidence in programs that remain fully supported by the committees — and are not designed to end the bulk collection."  (emphasis added)

So the goal seems to be public relations and addressing the perception problem rather than curtailing an overreaching surveillance apparatus.

Similarly, one proposal to increase confidence in the FISA Court is to now have an adversarial view presented along with the argument of the government.  I suppose it's better than the status quo, but as I and others have argued, the problem is the composition of the FISA Court, specifically that the Chief Justice alone picks all the members.  Again, the motivation of presenting an adversarial view in the FISA court seems only to be cosmetic, addressing the symptom and not the root problem.

One can hope that more substantive reforms will be forthcoming, but for now, the "major reviews" and FISA Court "reforms" seem like featherweight responses to serious problems.

Edward Snowden's service to America: shining a spotlight on the surveillance state

Edward Snowden has been vilified by some as a reckless leaker of sensitive government information and jeopardizing national security at risk and lauded by others as a brave whistle-blower who called attention to the vast surveillance state and the erosion of citizens' civil liberties.  Regardless of what one thinks of the man and his motives, he should be thanked for sparking a much needed national conversation on surveillance and privacy.  After 9/11, much of the public has taken it as an article of faith that the federal government is doing what needs to be done to keep us safe, and no more surveillance than necessary.  That notion is now in doubt and it is a good thing.

Since Snowden's disclosures took place, citizens have learned what the FISA Court is and some of the problems of its membership.  The New York Times recently reported that "the American intelligence agencies, which experienced a boom in financing and public support in the decade after the Sept. 11, 2001, attacks, have entered a period of broad public scrutiny and skepticism with few precedents since the exposure of spying secrets and abuses led to the historic investigation by the Senate’s Church Committee nearly four decades ago."  Some of these critics are within Congress, like Senators Wyden and Udall, but Snowden should take some of the credit for his information was surely one of the catalysts as well for sounding the alarm.

Glenn Greenwald views a recent Pew Poll as a major shift in public opinion on surveillance. For the first time since the 9/11 attacks, respondents were more worried that the government's anti-terror policies are a violation of civil liberties and privacy rather than about national security.  The Pew Poll stated that currently, 47 percent of those recently polled said the government had gone too far in restricting citizens' civil liberties. Another Washington Post/ABC News poll showed that nearly 3/4 of the respondents said the government was unjustifiably infringing on privacy rights.  People are beginning to ask questions about what the government is doing and whether all of it is actually making us safer.

Last week, we also saw a stunning vote in the House of Representatives on an amendment put forward by Rep. Jason Amash (R-MI), a Tea Party favorite, and veteran Rep. John Conyers (D-MI) that would defund the NSA collection of phone records.  The amendment failed, but by only 12 votes, 205-217 which is a fairly shocking result in the the post-9/11 environment and also surprising in the bipartisan nature of the support for it with 94 Democrats and 114 Republicans supporting the Amash/Conyers bill--and they say that bipartisanship is dead in Congress.

Snoweden of course did not precipitate all these events by himself, but his disclosures have certainly played a role.  As Eugene Robinson wrote in a Washington Post oped yesterday: 

Intelligence officials in the Obama administration and their allies on Capitol Hill paint the fugitive analyst as nothing but a traitor who wants to harm the United States. Many of those same officials grudgingly acknowledge, however, that public debate about the NSA’s domestic snooping is now unavoidable.

This would be impossible if Snowden — or someone like him — hadn’t spilled the beans. We wouldn’t know that the NSA is keeping a database of all our phone calls. We wouldn’t know that the government gets the authority to keep track of our private communications — even if we are not suspected of terrorist activity or associations — from secret judicial orders issued by a secret court based on secret interpretations of the law.

I agree with Robinson that Snowden, whatever you think of the man, has done the nation a great public service by making people ask hard questions and demand answers about the super secret surveillance state.

Toobin and Greenwald debate Bradley Manning and Edward Snowden on CNN

Jeffery Toobin was on the receiving end of a smackdown at the hands of Glenn Greenwald on CNN on Tuesday.  Toobin was commenting on the Bradley Manning verdict and looked flat footed as he was unable to pivot between the differences and commonalities between Daniel Ellsberg, Bradley Manning, and Edward Snowden's cases.  At one point Greenwald rips into Toobin about his objections to whistle blowers having no authority to disclose information as going to the heart of what investigative journalism is all about.  It's not pretty.  Game, set, match Greenwald.

Who appoints the FISA Court members? What checks and balances?

With Edward Snowden's revelations that the NSA activities were authorized by the FISA Court and the Administration's pointing to the FISA Court as providing judicial oversight for these actions, naturally attention has been brought to this secret court whose proceedings and decisions are entirely unavailable and therefore unverifiable to the public.  Apparently the FISA judges are very unhappy about how they have been portrayed in the press as rubber stampers now that information has come out in multiple places that the FISA Court almost never says no to the Administration.  Many news outlets and political analysts have taken the FISA Court to task for not appearing to apply any sort of restriction on Executive action.

The FISA Court was suffering enough of an image problem before it was learned via Ezra Klein's recent posting about how FISA Court members are chosen.  We all knew they were sitting federal judges, but until Klein's column, I did not know that all of them are appointed by the Chief Justice.  There is no Senate confirmation or any other check on the Chief Justice's choices to the FISA Court.  He is the lone decider.  Even if we assume that the ideology of the judge does not matter, an assumption that would run counter to reams of political science research about the strong influence of ideology saying otherwise, there is still a problem.

Today, Geoffrey B. Stone outlines the challenge with having the Chief Justice appoint the FISA Court members:

Of the 11 judges currently serving on the court, ten were initially appointed to the federal bench by Republican presidents. Only one, Judge Mary McLaughlin, was appointed by a Democratic president- Bill Clinton. The reason for this seems pretty clear, and it is troubling. Under the FISA Act, the Chief Justice appoints the members of the FISA court. Since 1978, when the FISA court was created, every Chief Justice of the United States -- Warren Burger, William Rehnquist and John Roberts - was appointed by a Republican president. At present, approximately 50 percent of federal district court judges were appointed by Republican presidents and 50 percent were appointed by Democratic presidents. But on the FISA court, 91 percent were appointed by Republican presidents and only 9 percent were appointed by Democratic presidents.

So it is a safe guess that the partisan composition of the FISA Court judges in no way mirrors or even approximates the partisan distribution on the federal courts.  In fact political science research shows that Democratic and Republican judges have very different views about affirmative action, and abortion.  I'm in the process of tracking down studies on the effect of ideology on national security issues.

July 7, 2013 update.

The New York Times today published a story about more of the FISA Court's functions. In one chilling paragraph, Eric Lichtbau wrote:

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

Yesterday, Michael McGough published an oped in the LA Times suggesting that FISA Court appointees be chosen by the President and confirmed by the Senate, just as the members of the Federal Circuit are. I agree. If the FISA court is going to operate in secret, not allow an adversarial process and not allow scrutiny of it's decisions, at the very least it's members should be appointed with a process that is more than just the unilateral say-so of the Chief Justice.