“Migrant Health Concerns” Is Fox News Category: Old Way to Demonize Immigrants

Go ahead, check out Fox News online. Toward the top-left, you’ll see a specific category called “Migrant Health Concerns.” See the photo from a story that is running today.

Now, take a brief second to click on this link to the Immigration Act of 1891 (http://library.uwb.edu/Static/USimmigration/26%20stat%201084.pdf). In the first few lines of Chap. 551 (near top), you’ll see that in addition to excluding all “Chinese laborers” the law also excluded “persons suffering from a loathsome or a dangerous disease.”

This vague disease criterion was carried forward through 1965.

Fox News is not alone in equating disease with aliens. 

U.S. Gave Up Climate Accord: Gained 10,000 Mining Jobs

Remember 2016 when news stories concentrated on job losses in the mining industry?

ProfLERoy visited the Bureau of Labor Statistics website to update this story. The ugly graph above provides a current snapshot.

Sure enough, President Trump’s massive deregulation of air quality and mining standards have added jobs: 10,000 new jobs since he took office—up from 180,000 in 2016 to 190,000 in August 2018.

The gain is small.

Even smaller are the number of mining jobs relative to 145 million jobs in the U.S. economy. Basically, U.S. policy favors these 1 in 1,000 jobs so much that the nation is willing to accept massive climate change effects that result from pumping more carbons in the air.

The data can be verified here: https://data.bls.gov/timeseries/CES1021200001?amp%253bdata_tool=XGtable&output_view=data&include_graphs=true

The President’s Immigration Powers: Migratory Labor and Racial Animus

Here is a sneak preview (only 274 words). I welcome feedback. Is this clear? If not, what needs clarification? Is the tone too neutral, too subjective, too slanted—or okay? What impression does the summary leave with you? Post to FB or send to mhl@illinois.edu. Thanks in advance!

Since the nation’s founding, presidents have been motivated by racial animus while using executive powers over migratory labor. Early presidents enforced the Constitution’s fugitive slave provision. They explored diplomacy to deport free blacks to Africa. From the 1880s through 1940s, presidents acted on the racial animus of workers by restricting laborers from China and Japan, and later, Europe. FDR’s internment order resulted in the coerced labor of Japanese Americans. 

Against this backdrop, I examine President Donald Trump’s immigration orders that affect employment relationships. Eighteen lawsuits have been filed: They challenge the travel ban; rescission of DACA (Deferred Action for Childhood Arrivals), DAPA (Deferred Action for Parents of Americans), and TPS (Temporary Protected Status); covert vetting for citizenship petitions (Controlled Application Review and Resolution Program, or CARRP), and presidential obstruction of MAVNI (Military Accessions Vital to the National Interest), a program for foreigners in the military to gain citizenship.

I quantified results for 33 first-level and subsequent rulings: (1) More than 70% involved the Administrative Procedure Act and Fifth Amendment’s Due Process Clause. (2) Jurisdiction was found in 76% of the cases. (3) In 80% of the cases involving a request for an injunction, courts granted some form of relief. (4) Overall, plaintiffs won all or part of 93% of the rulings.

I conclude that President Trump’s approach to migratory labor follows numerous presidents; however, his predecessors acted before the Immigration and Nationality Act of 1965 and development of due process rights for aliens. His orders and actions are so numerous and sweeping that the Supreme Court is unlikely to hear many cases. President Trump’s apparent overreach suggests that he is eroding executive powers over immigration.

Cyber-Monday Reflection: Is Saks Fifth Avenue Too White?

The top photo shows Saks Fifth Avenue president, Marc Metrick, paired with Chief Merchant Tracy Margolies at the 2016 opening of a new store in Manhattan.

The bottom photo shows former employees of Saks who claim that the company engages in pervasive race discrimination.

Last Tuesday, they filed an employment discrimination lawsuit against Saks and its parent company, Hudson Bay Co.

“The Hudson's Bay Company has been in existence since 1670 and it is the oldest company in North America,” the men claim. “In the three hundred and forty-eight years that followed, Hudson's Bay has not been able to find a black or Hispanic person to fill any of its current leadership positions.”

They also allege specific discriminatory practices at Saks' Manhattan flagship store—for example, assigning them to the back of the store where traffic is lower than the front. This resulted in lower sales, missing sales targets, and missed promotions. Younger white workers were placed in high-traffic areas and easily scored new customers.

Their complaint alleges that young white males who missed sales targets were given a pass. The plaintiffs are prepared to prove that allegation—and also prove that when they missed sales targets, they were denied promotions or received unfavorable reviews.

Saks has not commented on the lawsuit.

Can “Wellness Program” Require You to Complete a “Health Risk Assessment”? Yes, But...

PhotoCredit: ImageZoo/Corbis & NPR

Employers pay for health insurance; so do employees.

To reduce medical risks related to poor physical fitness and diet, employers are increasingly requiring employees to complete a “health risk assessment” (called HRAs). If an employee smokes, they are charged a higher rate (if they lie and file a claim, they are denied payment). 

Our employment class will read and discuss an interesting new case under the Americans with Disabilities Act. (E.E.O.C. v. Orion Energy Systems, Inc., link here: https://hr.cch.com/ELD/EEOCOrion091916.pdf)

Orion Energy Systems offered a self-insured health plan (that means they paid directly on claims, cutting out the insurance companies).

Everyone qualified for health insurance BUT employees who refused to complete the HRA paid 100% of the premium ($1,130.83 per month for family coverage). The company paid part of the premium if an employee completed the HRA.

The HRA was a questionnaire on health history, body circumference, and a blood draw. 
Orion did not see an individual’s data. 
A hospital clinic collected the data. 
An outside lab analyzed the lab work. 
A third company aggregated the data and provided Orion with health risk factors for the employee group, e.g., your employees are prone to be diabetic.

The legal problem here is that the ADA prohibits medical exams of employees. 
The law makes an exception, however, for third-party insurance companies, HMOs, and similar (e.g., Aetna). They are allowed to collect medical information to assess their underwriting risk. They are also strictly prohibited from sharing data with the employer.
****

Enter Wendy Schobert, employed in Orion’s accounting department until she was fired. She opted out of the HRA and faced steep premiums. She raised questions about the new wellness initiative, including the HRA. Schobert questioned whether medical information collected in the HRA would remain confidential. She also questioned how the premium amount was calculated, and believed it was excessive in light of the service fee Orion was paying its third-party administrator, Auxiant. (She knew the amount of that fee because her job duties involved paying the firm’s invoices.)

The court split its ruling.

It upheld the employer’s 100% premium shifting for all employees who refuse to participate in the HRA.

The court said: “A corporation is not required to fully pay for an employee’s health insurance—indeed, it is not required to provide health insurance at all—and it is not unlawful to give an employee a choice regarding her health benefits provided the choices are among lawful alternatives.”

The court added: “Here, the wellness program was not used to underwrite, classify, or administer risk. Orion adopted the wellness program in 2009 separately from the terms of its health benefit plan and did not amend its health benefits summary plan to include the wellness initiative.”

In other words, the insurance plan was one document (and its own policy); and the health risk assessment was separate, according to the court.

The court ruled in favor of Schobert on her ADA retaliation claim: “Here, it is undisputed that Schobert expressed concern about the confidentiality of her medical information under the new wellness initiative. As that is a legitimate concern under the ADA, i.e., something the ADA actually does govern, her expression may have been protected.”    

Play the Black Friday Quiz! Pick Our Most Racist-Xenophobic President

Take a break from holiday shopping and contemplate these appalling statements from our presidents. Post your selection and thoughts to FB or send me your private (mhl@illinois.edu). 

***

First Entry: “Copy of a Letter from Thomas Jefferson, Late President of the United States,” First Annual Report of the American Society for Colonizing the Free People of Color of the United States, at 13, (1818), available here https://archive.org/stream/ASPC0001932500#page/n11/mode/2up.

I received, in the last year of the administration of the general government, a letter from the governor of Virginia, consulting me, at the request of the legislature of the state, on the means on procuring some such asylum to which these people might be occasionally sent. I suggested to him the establishment of Sierre Leone, in which a private company from England had already colonized a number of negroes, and particularly the fugitives from these states during the Revolutionary War; and at the same time suggested, if that could not be obtained, some of the Portuguese possessions in South America as most desirable.

Second Entry: Theodore Roosevelt, Twisted Eugenics, 106 Outlook 30, 32 (1914), stating the case for “race survival” of whites, referring to “the vital problem of the perpetuation of the best race elements . . . I wish very much that the wrong people could be prevented entirely from breeding.”

Third Entry: President Woodrow Wilson, Third Annual Message (December 7, 1915):

There are citizens of the United States, I blush to admit, born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to … debase our politics to the uses of foreign intrigue.

Fourth Entry: President Calvin Coolidge, First Annual Address (Dec. 6, 1923), available in http://www.presidency.ucsb.edu/ws/index.php?pid=29564: “New arrivals should be limited to our capacity to absorb them into the ranks of good citizenship. America must be kept American. For this purpose, it is necessary to continue a policy of restricted immigration.”

Fifth Entry: Judges must not Legislate Security... Safety at the Border, or anywhere else. They know nothing about it and are making our Country unsafe. Our great Law Enforcement professionals MUST BE ALLOWED TO DO THEIR JOB! If not there will be only bedlam, chaos, injury and death. We want the Constitution as written!

@realDonaldTrump (Nov. 22, 2018, at 6:21 a.m.)

Why Kris Kobach Makes (Bad) Sense to Be the Next Secretary of Homeland Security

You may recall that Kris Kobach lost his race to be governor of Kansas. 

Along the way, as secretary of state he required Kansas voters to provide proof of citizenship to vote. 

He lost that effort when the ACLU sued. 

He refused to obey the court’s order—and was held in contempt and ordered to pay the ACLU $26,000 in legal fees.

Kobach is well-known in immigration circles for his unconstitutional policy ideas. In a nationally significant case, he was counsel to the city of Farmers Branch, Texas. The city enacted an ordinance to require landlords to rent only to citizens and legal visa-holders. The right-leaning Fifth Circuit Court of Appeals decided mostly against the city. Meanwhile the city paid $850,000 to defend two voting rights lawsuits.

Kobach is known for drafting harshly anti-immigrant laws that cities and states have enacted or proposed. 

He has proposed a Muslim registry. 

He exaggerates voter fraud so much that he was named by President Trump to co-chair the failed presidential commission that was supposed to advance the narrative of three million fraudulent votes for Hillary Clinton.

The commission— which went by the Orwellian name, Presidential Advisory Commission on Election Integrity, came up about 2,999,986 cases shorts (14 cases of voter fraud have been prosecuted from 2016).

A prominent professor nurtured this politician’s anti-immigrant identity. Harvard Prof. Samuel P. Huntington, Kobach’s advisor from 1984-1988, believed that Hispanic immigration would be the downfall of “American identity.” (Not all professors are "leftists.").

I hope I am wrong. 

If I am right, I hope the Senate rejects him. 

And I hope, as well, that Trump doesn’t use the same method of appointment for Homeland Security as he has for Attorney General.

Can Companies Legally Capture Your Biodata (Fingerprints, Iris Scan, Facial Image)?

Illinois has one of the strongest biodata laws in the U.S. An individual must consent to the collection of personal biodata (fingerprint, voice sample or retina scan, and more). Collection and storage of biodata without consent can result in criminal liability and civil damages ($1,000 fine for each negligent violation, or actual damages or a $5,000 fine for each reckless violation). The law is called Illinois Biometric Information Privacy Act, or BIPA.

Biodata collection is common in workplaces: Many employers use palm or fingerprints to clock employees in and out work. If an employee consents, it’s not an issue. (A new employment trend is collection of Fitbit data and similar.)

The test case involves—of all places—an amusement park.

Six Flags required Stacy Rosenbach’s 16 year-old son to scan his thumbprint to access a season pass. She alleged she neither consented to nor received information about Six Flags' collection and storage of her son's data, and would have never purchased a pass if she had known the full extent of the company's conduct.

A main issue in a case heading to the Illinois Supreme Court is: What is injury under the law? Rosenbach argues that injury occurs when the fingerprinting occurs without consent. 

Six Flags argues that there is no liability without proof of actual injury.

The one apparent fact they agree on is that consent was not given in this case.

The high court’s ruling could frame the privacy law so broadly that many casual interactions—getting cash from an ATM, scanning your eye for entry to a secured workplace, as examples— will bog down with consent forms (many of which people just check-off without reading), and create liability for companies.

The high court could frame the privacy law so narrowly that its intent to protect people from unknowing data collection is mostly lost. For example, you might consent to collection of Fitbit data-- say, tracking of steps-- but the data collection could go broader (heart rate data) without an employee knowing.

Whether you are an employer or employee, consumer, patient, or simply walking on a public street where a company might be collecting your facial image, the implications are significant.

Google Ends Mandatory Arbitration— A Practice That Reflects the Low Status of Employment Law in HR Organizations

Employment law is an elective in the handful of Master’s degree programs in the U.S.  It’s no surprise, therefore, that wage-and-hour violations are so common. And it’s no surprise, either, that senior HR VPs (and similar) began to implement mandatory arbitration programs in the 1990s.

Their reasoning? The Supreme Court is allowing it. We control the process. We avoid court. We avoid bad publicity. We avoid class actions. We avoid costly damages. We suffer very few consequences for sexual harassment. 

Mandatory arbitration is so one-sided, it’s become a good place to hide sexual assault.

It’s also kept women from seeking justice.
When you look at the MeToo movement, most of those published accounts involve some aspect of the workplace (Harvey Weinstein's "casting" arrangements; Les Moonves, Matt Laurer, Steve Wynn, Prof. Lawrence Krauss, Corey Coleman (HR Director of FEMA), Judge Alex Kozinski ... and many more.

The recent walkout at Google over that firm’s cover-ups of sexual harassment and assaults embarrassed Google. It exposed the hypocrisy that progressive HR firms care about their employees.

How does this relate to the teaching of employment law in HR programs? 

Simple: When your HR organization can sweep its legal controversies—not only harassment, but wage-and-hour, disability, FMLA, and most other employment practices— under the rug, there is no reason to pay attention to employment law.

Allowing employees the basic right to sue in a court of law offers some hope for change— and for starters, real consequences for harassers and predators in the workplace.

…

Here are key findings on mandatory arbitration from a liberal think tank, the Economic Policy Institute:

More than half—53.9 percent—of nonunion private-sector employers have mandatory arbitration procedures. Among companies with 1,000 or more employees, 65.1 percent have mandatory arbitration procedures.

Extrapolating to the overall workforce, 60.1 million American workers no longer have access to the courts to protect their legal employment rights and instead must go to arbitration.

Of the employers who require mandatory arbitration, 30.1 percent also include class action waivers in their procedures—meaning that in addition to losing their right to file a lawsuit on their own behalf, employees also lose the right to address widespread rights violations through collective legal action.

Mandatory arbitration is more common in low-wage workplaces. It is also more common in industries that are disproportionately composed of women workers and in industries that are disproportionately composed of African American workers.

Counter to Trump's Plan to End Birthright Citizenship? Allow Naturalized Citizens to Be President

As we have come to learn in the past few weeks, the 14^th Amendment creates birthright citizenship for “all persons.” Liberals and many conservatives—for example, George Conway— have been pushing back on President Trump’s idea to limit birthright citizenship.

What if liberals and moderates went on the offensive by suggesting broader immigration rights?

The following is an excerpt from my research paper… the part in red deals with the idea that the Constitution currently limits the office of president to people born in the U.S. Talented public figures, ranging from Alexander Hamilton, Henry Kissinger, and Arnold Schwarzenegger to Madeleine Albright and Ariana Huffington, have been constitutionally barred from office.

…

The Constitution has shaped the presidency along racial lines. This effect is more subtle today but was exploited when President Trump spent years as a private citizen falsely suggesting that President Obama was born in Kenya. Twenty million naturalized citizens—mostly nonwhite—are ineligible to be president because they were born outside the U.S. The fact that twelve of the first eighteen presidents were slave-owners is evidence that the Three-Fifths Compromise skewed elections for the nation’s highest office to favor slave-holding interests. The Constitution’s regulation of the “Migration or Importation” of slaves is a conflicted expression of the nation’s first immigration policy: the nation allowed the more benign form of slave “migration” that was common with French settlers and the brutalizing “importation” of chattel slavery. The Constitution drafted in 1787 set the course for a presidency that—for most of the next 230 years— was institutionally inclined to translate the racial animus of white Americans, particularly white workers, into restrictive immigration actions. In this context, President Trump’s racially-tinged immigration campaign messages, closely tied to restrictive immigration policies, should not come as a surprise: He is a culmination of a flawed Constitution.

Walmart’s Holiday Message? It’s Costly to Cheat Workers Out of Pay

On Wednesday, a California federal jury found that Walmart intentionally failed to pay truck drivers for time spent on work-related on-duty tasks, awarding class members more than $54 million in damages.

The issue involves “compensable time.” Walmart took the position— a position we strongly counsel against in our employment law course— that “compensable time” does not include pre-shift safety inspections.

The Department of Labor regulations are crystal clear: When work is “preliminary” or “postliminary” and is “integrally related” to the “principal activity,” it counts toward time that the employer owes.

Truck drivers don’t do safety inspections because these activities are recreational, restful, or optional.

There is more. 

Walmart also failed to pay drivers for time spent washing trucks, fueling, weighing the trucks’ load, waiting at vendor and store locations, performing adjustments, complying with U.S. Department of Transportation inspections, and meeting with driver coordinators.

In a separate wage lawsuit, a different judge certified a class of 50,000 Walmart employees who allege they were required to work through lunch and rest periods—they had their pay deducted, did not get lunch or rest, and did not get paid.

Always the low price might be due to systemic wage theft.

Some U.S. Troops at U.S.-Mexico Border May Be Deported

The U.S. has a program to beef-up military enlistments. It’s called MAVNI (Military Accessions Vital to the National Interest). It allows non-citizens to enlist. As an inducement, it provides an expedited path to U.S. citizenship. The path is not automatic—there are specific requirements.
(In exchange for enlisting in the military for a total of 8 years' service, DOD promised MAVNI enlistees the right to apply for an expedited path to citizenship.)

Under President Trump’s direction, however, the Defense Department is no longer processing Form N-426. It certifies an enlistee’s military service and also checks boxes for MAVNI certification.

The administration cannot end MAVNI— it’s a creation of Congress. But effectively, Secretary of Defense Mattis has blocked the program. The Defense Department has added an extreme vetting element, patterned after the element that the Supreme Court eventually upheld in Trump v. Hawaii. To be clear, the Supreme Court found the “travel ban” constitutional only in its third version—a version that applied to people who had no contacts, past or present, to the U.S.

The MAVNI troops are serving the United States. It’s a big difference.

There is irony in this reneging of a promise to more than 10,000 foreign-born members of the U.S. armed forces: Some may be deployed on the U.S.-Mexico border to halt a caravan of migrants from entering the U.S.

For now, at least, a federal court has issued an injunction preventing any adverse treatment of MAVNI troops.

The court, in Kirwa v. Defense Department, noted: “Furthermore, every day of delay leaves plaintiffs in limbo and in fear of removal. Plaintiffs live in constant fear that they will lose their work or student visas, or be discharged, deported, and subject to harsh punishment in their country of origin for joining a foreign military.”

It is one thing to get tough on illegal immigration. It is another thing to restrict legal immigration. The treatment of MAVNI-eligible troops is a betrayal of a solemn promise made to men and women who are willing to make the ultimate sacrifice for American citizens in order, someday, to become American citizens. The court said the government failed to advance a single good reason for blocking the program.

A Blog Reader Suggested I "Take a Day Off From Bashing President Trump": Here is My Reply

A federal court recently ruled that a Jewish woman’s lawsuit can proceed against Andrew Anglin, editor of the Daily Stormer, a daily online journal for neo-Nazis and their ilk.

Thankfully, the judge didn’t take any days off when he read the extensive record in this case. The judge set this background:

"(Tanya) Gersh lives in Whitefish, Montana, and has a real estate practice there. She and her husband are Jewish, and have raised their two children in the Jewish faith. In late 2016, Gersh became involved in a real estate dispute with Sherry Spencer (“Spencer”), the owner of a mixed-used property in downtown Whitefish. Spencer’s son, Richard Spencer, is a white nationalist member of the far right who gained notoriety when a video of him stating “Hail Trump! Hail our people! Hail victory” during a gathering of white nationalists soon after President Donald Trump’s election went viral. Following the video’s release, some members of the Whitefish community who believed that Spencer had not disavowed her son’s racist views considered protesting in front of her mixed-use property."

Eventually, residents of Whitefish organized a boycott of Spencer’s mother’s business. The mother asked Gersh for advice. She said, in effect, “sell your property and renounce your son's views.” Anglin, Spencer's friend, set off a troll storm (see photo). Here is an excerpt of what happened, according to the court:

"Gersh contends she and her family were a captive audience to the several hundred cell phone calls, voicemails, text messages, emails, letters, and social media comments they received from Anglin’s readers, and asks the Court to hold that Anglin did not have a First Amendment right to force that offensive speech into her home. Gersh argues the traditional concept of “home” has expanded with the proliferation of cell phones, texting, emails, social media messages and other forms of electronic communication. She claims several courts have recognized as much, with one putting it this way: “[T]he substantial right of residents to find sanctuary in their homes, free from unwanted speech, is just as – if not more – vital today, where intrusions via the mail, the telephone and, now, email and the internet are ubiquitous.” National Coalition of Prayer, Inc. v. Carter, 455 F.3d 783, 795 (7th Cir. 2006) (Williams, J., concurring). Relying on this expansive view of home  and Montana’s traditional and time honored respect for residential privacy, Gersh argues the troll storm messages invaded her privacy interests in an essentially  intolerable manner."

And this:

The Complaint is replete with allegations that Anglin encouraged his readers to take action against Gersh, and caused them to inundate her and her family with hundreds of hateful and threatening anti-Semitic phone calls, text messages, emails, and other communications. Gersh claims that Anglin repeatedly published her and her family’s personal contact information on his website (see e.g. Doc. 1, ¶¶ 128, 130) and modeled the sort of vitriol he wanted them to use with his inflammatory anti-Semitic rhetoric and Nazi imagery – including images of Gersh and her son superimposed on a Nazi propaganda poster and a photo of the gates of Auschwitz. (Doc. 1, ¶¶ 28, 135). In addition, the Complaint alleges that Anglin “encouraged” his readers to: (1) call Gersh “and tell her what you think. And hey – if you’re in the area, maybe you should stop by and tell her in person what you think of her actions” (doc. 1, ¶ 84); (2) leave negative reviews of her business on line (doc. 1, ¶ 85); (3) take to Twitter and tell her 12 year old son “what you think of his whore mother’s vicious attack on the community of Whitefish” (doc. 1, ¶ 88); (4) give Gersh’s husband “a call or stop by his office and let him know what you think of his wife’s behavior, advise him to get a leash on that hoe” (doc 1, ¶ 89); (5) contact businesses and organizations associated with Gersh (doc. 1, ¶ 145) and; (6) “keep putting pressure on these Jews.” (Doc. 1, ¶ 130).”

The court has moved the matter on to the next phase for trial. The main point of the lawsuit is to financially impair Anglin’s Trump-enabled hate website.

To my objecting reader: This post is being made after 10:00 p.m. but before the day is over. That’s right: I’m not taking today off. I’m not taking today off from calling out a president and supporters who hate, or promote hatred, against Jews, Muslims, Mexicans, Central Americans, illegal immigrants, legal immigrants, women, transgender people, black football players, Democrats, principled Republicans, judges, prosecutors, mainstream media, fire fighters…  And I won’t take the weekend off, either.

Nor will my friends, many of whom are not targeted (for now) for hatred.

Can Children Be Granted Asylum to Escape Sexual Violence?

President Trump issued a Proclamation on November 9^th that temporarily suspends asylum for migrants entering from Mexico unless they present themselves to a port of entry. The proclamation appears to be drafted skillfully and thoughtfully, in contrast to other immigration restrictions. It cites prior presidential actions of this nature, and a Supreme Court decision that upheld President Bush’s suspension of asylum for Haitians (Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993)).

The proclamation also correctly states the following:

“Members of family units pose particular challenges.  The Federal Government lacks sufficient facilities to house families together.  Virtually all members of family units who enter the United States through the southern border, unlawfully or without proper documentation, and that are found to have a credible fear of persecution, are thus released into the United States.  Against this backdrop of near-assurance of release, the number of such aliens traveling as family units who enter through the southern border and claim a credible fear of persecution has greatly increased.  And large numbers of family units decide to make the dangerous and unlawful border crossing with their children.”

The policy appears to be legal. But what is its human toll? 

Consider Osorio v. Attorney General of the United States, decided about two months ago. 

Mothers and their minor children fled “physical and sexual violence perpetrated by gangs in their home countries of Honduras and El Salvador.” 

To President Trump’s point, they were detained in Texas and later moved to Pennsylvania, still under detention. The mothers requested asylum. They were denied a court hearing because, according to the court, they had no connection to the U.S. other than crossing the border illegally.

But their children applied for “SIJ” status (“special immigrant juvenile”). This is a juvenile section of the immigration act. As the court explained: “Alien children may receive SIJ status only after satisfying a set of rigorous, congressionally defined eligibility criteria, including that a juvenile court find it would not be in the child’s best interest to return to her country of last habitual residence and that the child is dependent on the court or placed in the custody of the state or someone appointed by the state.”

This appeals court ruled in September that these children cannot be immediately deported, nor can their mothers (who were subject to immediate removal but were not deported by the Obama administration).

The president’s proclamation does not apply to their case. It appears to address the situation of mothers and minor children in the migrant caravan. They cannot enter; they cannot file motions to a court for asylum under the Immigration and Nationality Act of 1965; and if they step foot on U.S. soil, they can be removed immediately without a habeas corpus hearing.

In my opinion, this is legal. Some will say that the United States has no obligation to shelter these mothers and their children. I believe America is better than that. That is why Congress passed a law for “special immigrant juvenile(s).”

Can You Hear Me Now? About Dog Whistles

Tomorrow, our class on immigration and race is reading and discussing a fascinating research article that attempts to explain how politicians use “multi-vocal” speech to address a mainstream group in one way while at the same time signaling a much different message to a sub-group. 

I quote now from Bethany L. Albertson, “Dog-Whistle Politics: Multivocal Communication and Religious Appeals,” Political Behavior (2015):

President Bush’s use of religious appeals has been the subject of some media attention. As Bruce Lincoln writes in the Boston Globe, ‘‘aware that he must appeal to the center to secure reelection, he employs double-coded signals that veil much of his religious message from outsiders’’ (September 12, 2004). David Kuo, who worked for various prominent Republicans and served in the George W. Bush administration, wrote ‘‘we threw in a few obscure turns of phrase known clearly to any evangelical, yet unlikely to be noticed by anyone else, even Kemp (who he was writing for)’’ (p. 59). Multivocal communication, or ‘‘dog-whistle politics,’’ as it has been labeled is not specific to George W. Bush’s rhetoric, or even Republicans; Bill Clinton used the phrase ‘‘send me’’ to structure his endorsement for John Kerry at the 2004 Democratic National Convention. The phrase references a passage in the Bible (Isaiah 6:8). Ronald Reagan used language in his 1984 State of the Union address that closely paralleled another biblical passage: ‘‘Let us be sure that those who come after will say of us in our time, that in our time we did everything that could be done. We finished the race; we kept them free; we kept the faith.’’

Both are examples of language that has religious connotations for a subset of the population. Multivocal communication such as this might be particularly effective because it targets those predisposed to respond favorably to the message and goes over the heads of those who might be turned off by it.”

Albertson offers this example from the left:
For example, Subaru ran advertisements in which the cars’ license plates read ‘‘XENA LVR’’ and ‘‘P TOWN.’’ The references were meant to appeal to gay and lesbians without alienating others who were unaware of the significance of the license plates (Kanner 2000). This advertising campaign, which also included the slogan ‘‘It’s not a choice. It’s the way we’re built’’ was intended to operate as multivocal communication; one of the campaign’s developers explains, ‘‘it’s apparent to gay people that we’re talking about being gay, but straight people don’t know what’s going on.’’

Albertson offers this background on the term “dog whistle”:

The phrase ‘‘dog-whistle politics,’’ draws upon the way that dog-whistles are perceptible to dogs but not to humans due to their high frequency. The term became popular during the 2005 election in the UK, where the exemplar of dog-whistle politics was the Conservative slogan, ‘‘Are you thinking what we’re thinking?’’ The slogan was said to appeal to those who opposed Labour’s stance on immigration. The term has its roots in Australia where it was associated with a political strategist, Lynton Crosby. Crosby ran Australian Prime Minister John Howard’s campaigns before consulting in British politics. The phrase reached William Safire’s ‘‘On Language’’ column in The New York Times in 2005. The 2005 campaign in the UK was arguably a failed attempt at dog-whistle politics, because the possible meanings of ‘‘Are you thinking what we’re thinking’’ became a topic of debate.
Questions I will pose to students: 

Should we fault politicians for this type of dual-messaging, or is this the essence of savvy political communication? 

Should campaign speech have censorship codes when it conveys hate toward an outcast group? 

Assuming that political censorship is out of the question, how should the public learn about coded-messages that are expressed in politics? 

A final question: whatever your political preferences, are there codes that speak to your interests but fly over the heads of people who are different from you?

What Do “Arabs, Jews, Germans and Italians” Have in Common?

In 1866, Congress passed a major civil rights law that has large impact today.

Example? In a case we cover tomorrow, an employee named Mamdouh El-Hakem objected to his boss, Greg Young, westernizing his name to “Manny.” He asked repeatedly to be called Mamdouh. Eventually, El-Hakem sued. He was awarded $90,000 for the hostile work environment caused by this simple but significant recurring insult.

The 1866 law said that all people shall enjoy the same rights as “white citizens.” A main legal issue was: Did Congress limit the 1866 law to blacks, or intend it for a much broader group? In other words, how did Congress define "white citizens" and the rest of people in the U.S. who were granted protection under the law?

This was open to interpretation until 1987 when the Supreme Court looked into the legislative history for the 1866 law. The Court identified “targets of race discrimination for purposes of Section 1981 [1866 law] include groups that today are considered merely different ethnic or national groups, such as Arabs, Jews, Germans and Italians.”

It is a testament to our nation’s progress that we do not think today as our nation did in the 1860s (and for decades after). But the question for us remains: Do white people enjoy privileges that nonwhites— Hispanics, many Muslims, Jews, Asians to name some groups— do not fully enjoy (for example, to work using our real names, such as Mamdouh)?

The photo shows Manny Zwerling. He served in a segregated Jewish infantry in WWI. He survived the war and later served in the NYPD. He is featured today in the New York Times. 
Thank you for your service, Manny. 
And to Mamdouh El-Hakem: Thank you for helping us understand that our names are so much of our identity that we shouldn’t allow others to take them from us.

Do Union Dues Matter? Unions Play Role in Protecting DACA Recipients

What do people get by paying dues to a labor union? Answers vary. Here is one: Unions sue to protect workers who are DACA-recipients.

On September 4, 2017, Attorney General Jeff Sessions issued a letter strongly criticizing the policy that protects 16-31 year-old immigrants who entered the country as children illegally with their parents. 

Under DACA, 689,800 people who have met age- and conduct-criteria enrolled for “deferred” status.

On September 5, 2017, Homeland Security acted on the Attorney General’s opinion letter and immediately rescinded DACA.

One effect was to end the work-authorization process for DACA recipients.

Here is a brief excerpt of the case that is in the news this week—the case where the Ninth Circuit Court of Appeals upheld a lower court order preventing the Trump administration from starting to deport DACA recipients. 
The main point of the post: Union dues are paying part of this lawsuit to protect people who cannot afford legal representation:

“SEIU [Service Employees Int’l Union] Local 521 has associational standing to bring its claims on behalf of its members who are DACA recipients. An association has standing to bring suit on behalf of its members when: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

SEIU has established all three elements here. SEIU has members who are DACA recipients. Its constitution states that part of its mission is to provide its members with a voice in the larger community, and that its members should be treated equally with dignity regardless of immigration status or national origin. SEIU has also formed a Committee on Comprehensive Immigration Reform, a member-based committee that engages in organizing, advocacy, and education to help undocumented workers. Its members' interests in these actions are therefore germane to SEIU's stated purpose (App. 801–09). Furthermore, this action does not require the participation of SEIU's individual members.”

(Thanks to my wife for a conversation this morning on union dues. J)

DACA Recipient, Jessica Colotl: Detained for One Month by ICE; Ordered Deported

Photo of Jessica Colotl

This post is simple: It is a quoted section from a court opinion and ruling that has temporarily prevented the Trump administration from deporting Jessica Colotl. The facts speak for themselves.

Plaintiff is a twenty-eight-year-old citizen of Mexico, who has lived continuously in the United States since she first entered here without inspection in 1999 when she was eleven years old. She graduated from Lakeside High School in DeKalb County, Georgia, in May 2006, with honors. She then earned a bachelor's degree in political science from Kennesaw State University in 2011, where she was named to the President's List for her academic performance. While attending college, she was active in several student organizations, including the Hispanic Scholarship Fund and the Mexican American Student Alliance. She also helped found the Epsilon Alpha Chapter of the Lambda Theta Alpha sorority, an organization dedicated to the needs of Latinas and women.

Since graduating, Plaintiff has worked at a local law firm and aspires to attend law school and become an immigration lawyer. She has also continued to remain active in the community, volunteering for the Annual Latino Youth Leadership Conference, donating blood platelets at Northside Hospital in Atlanta, Georgia, and fundraising for St. Jude Children's Hospital. She is also a member of a church in Norcross, Georgia and remains active in her sorority. Plaintiff has advocated for immigration reform locally and in Washington, D.C.

B. Plaintiff's Arrest and Criminal Proceeding

On March 29, 2010, Plaintiff was pulled over by campus police for allegedly blocking traffic while waiting for a parking space. She had no driver's license because she is ineligible to obtain one in Georgia due to her immigration status. The next day, Plaintiff was arrested on charges of impeding the flow of traffic and driving without a license, and booked into the Cobb County jail. After a jury trial, Plaintiff was acquitted of impeding the flow of traffic, but found guilty of the misdemeanor offense of driving without a license, for which she served three days in jail and paid a fine.

In February 2011, Plaintiff was indicted for allegedly making a false statement during the process whereby she was booked into the Cobb County jail on the earlier traffic violation charges. It was alleged that Plaintiff knowingly provided a false address during booking; although she never told an officer her address, an officer recorded address information from a vehicle insurance card that the officer took from her purse. The address the officer recorded from Plaintiff's insurance card was, in fact, her correct permanent home address at that time. Her parents moved from that address one month later, in April 2010.

Plaintiff entered a plea of not guilty to the false statement charge and the District Attorney offered her the option of entering into a pre-trial diversion program as an alternative to prosecution, whereby she would not be required to enter a guilty plea and the charge would be dismissed upon completion of her community service. Plaintiff elected to enter the diversion program and signed a “Diversion Agreement” containing a statement acknowledging that her participation in the program constituted an admission of guilt to the charge against her. Plaintiff successfully completed the diversion program, and the false statement charge was dismissed in January 2013. See Order dated Jan. 9, 2013 [Doc. 14–4] (dismissing criminal case against Plaintiff). Plaintiff has no other criminal history.

C. Plaintiff's Removal Proceeding

After Plaintiff's arrest in March 2010, she was referred to U.S. Immigration and  Customs Enforcement (“ICE”), which initiated removal proceedings. Plaintiff was placed in immigration detention during the removal proceedings, where she was detained for approximately one month. On April 28, 2010, she accepted an order of voluntary departure, which permitted her to leave the United States within thirty days without the entry of a deportation order. After receiving her voluntary departure order, Plaintiff was granted deferred action status by the U.S. Department of Homeland Security (“DHS”), resulting in her release from detention and allowing her to remain in the United States to complete her undergraduate degree.

On July 15, 2014, Plaintiff moved the immigration court to reopen her removal proceeding and administratively close the case. See Decision of Board of Immigration Appeals (“BIA”) dated Oct. 6, 2016 [Doc. 14–11] (“BIA Decision”); Am. Compl. ¶ 59. The immigration judge denied her request on January 26, 2015, and Plaintiff appealed. BIA Decision; Am. Compl. ¶ 60. The BIA sustained Plaintiff's appeal, reversed the immigration judge's decision, reopened Plaintiff's removal proceeding, and remanded the case to the immigration court for administrative closure. BIA Decision; Am. Compl. ¶ 60.

Although her immigration case was remanded to the immigration court on October 6, 2016, with an order to administratively close the case, no action has been taken to close that case and it remains pending as of the date of this Order. On March 29, 2017, ICE counsel filed a brief in opposition to Plaintiff's motion to reopen her removal proceeding and administratively close her case, making the following argument: “[O]n February 20, 2017, the Department [of Homeland Security] issued a memorandum, titled ‘Enforcement of the Immigration Laws to Serve the National Interest.’ Due to the respondent's criminal history, she is an enforcement priority under this memorandum.” DHS's Suppl. Br. on Eligibility for Relief [Doc. 14–12] (filed in Plaintiff's removal proceeding) at 3.

**

ORDER
The Court finds that the harm to Plaintiff in the absence of an injunction will exceed any harm suffered by Defendants because of the grant of a preliminary injunction. By granting an injunction until the merits of the underlying dispute are adjudicated, the Court is simply requiring Defendants to comply with DHS’s written procedures as to the adjudication of DACA applications and the termination of DACA status. There can be no harm to Defendants in requiring them to follow their own written guidelines, but the harm to Plaintiff by Defendants' failure to do so is significant. Furthermore, because the public has an interest in government agencies being required to comply with their own written guidelines instead of engaging in arbitrary decision making, Plaintiff has made the requisite showing that the public interest would be served by this Court's entry of a preliminary injunction enjoining Defendants from failing to comply with their written operating procedures.

Can President Trump Appoint A Temporary Supreme Court Justice?

(Photo Credit: Sabina Becker)

Absolutely not. And the reason that he cannot do this is the same reason he cannot appoint Matthew Whitacker under the Federal Vacancies Reform Act to be interim Attorney General.

Our Constitution says the following in Article II, Section 2:

He (the president) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The underlined passage is the rationale for the Federal Vacancies Reform Act. Inferior officers—for example, certain Assistant Secretaries of Treasury--

can be filled by “the President alone.”

Now look at the text in red: “Judges of the supreme Court, and all other Officers of the United States.”

In effect, President Trump is saying that the Attorney General is not an Officer of the United States. 

But by law, the Attorney General is an officer of the United States—and is subject to the “advice and consent” provision of Article II.

If Trump’s view prevails, and if a vacancy occurs on the Supreme Court, what would stop him from filling the vacancy with a temporary appointment? 

Nothing. 

And that amounts to a constitutional coup, as does this appointment.
(Thanks to a colleague for a series of questions that stimulated this post.)

Keeping Score of Trump’s Losing Record Before Federal Courts

Keeping up with the president’s executive orders on immigration is like herding cats. Here is a brief summary from my paper. 

Want it all in one sentence? President Trump is losing most of his cases before courts, and in the process he is eroding the otherwise extraordinary tools of the executive branch as these powers relate to immigration. 

To make the reading a bit more interesting, I’ve color coded Trump wins in green and Trump losses in red.

A.        President Trump’s Executive Orders, Proclamations, and Administrative Actions

1.        Executive Orders

Travel Ban: Early in his administration, Executive Order 13769 banned entry of virtually all persons from seven Muslim countries.  Among its effects, the order affected prospective employment relationships.   After the order was enjoined, the president replaced it with a revised ban. Like the first order, it had many effects including impairment of employment relationships.  This order suffered a setback in Trump v. International Refugee Assistance Project (IRAP), when the Supreme Court partially denied its enforcement. 

On his third attempt at barring entry to many millions of Middle Easterners, the president won a decisive ruling in Trump v. Hawaii.  This ban took the form of a narrower proclamation.   It had no adverse effects on employment or other bona fide relationships.  While the proclamation was upheld, it led to the extraordinary measure of overruling Korematsu.

Following Trump v. IRAP, Executive Order 13815 and a related memorandum resumed the U.S. refugee admissions program, albeit with enhanced vetting.  In apparent disregard of the Supreme Court’s ruling, the Trump administration denied entry to persons with bona prior relationships to people or organizations in the U.S., including an Iraqi former interpreter for the United States military and an Iraqi woman, employed as an interpreter for American companies, who also has close relatives living in the U.S. Relying on the Supreme Court’s recent precedent, Doe v. Trump enjoined that part of the order which extended to refugees with a bona fide relationship with a person in the U.S. The court ruled that the order and memorandum were subject to the notice and comment requirements of the Administrative Procedure Act’s notice and comment requirements for rulemaking, and the Secretary of Homeland Security lacked authority to indefinitely suspend a nondiscretionary statutory duty under INA.

“Hire American” and H-1B Visas: On April 18, 2017, the president issued Executive Order 13788. Titled “Buy American and Hire American,” the order applies to the U.S. technology sector, particularly the IT workforce.  It states a policy to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.  The technology sector has complained that enforcement of the order has hindered employers who are seeking lawfully to hire these workers. Parts of the order suggest a possible bias against Asian workers. (No rulings yet.)

2.        Rescission of Deferred and Protected Status

DACA: The Trump administration has taken preliminary steps to terminate the DACA (Deferred Action for Childhood Arrivals) program. One aspect would eliminate work authorization for DACA recipients.  The DACA-rescission policy was enjoined in Vidal v. Nielsen on grounds that it likely violated Administrative Procedure Act and Due Process Clause of the Fifth Amendment.  The DACA-rescission policy has led to related lawsuits.

DAPA: President Trump’s Department of Homeland Security rescinded the 2014 DAPA (Deferred Action for Parents of Americans) Memorandum, a policy under the Obama administration to grant deferral status for three years to parents of DACA eligible children and young adults. After twenty-six states filed a lawsuit to challenge the DAPA policy, a Texas district court enjoined it.  

However, the district court in J-M-C-B v. Nielsen dismissed a lawsuit that challenged the Trump administration’s rescission of DAPA.

The president has also terminated TPS (Temporary Protected Status) for approximately 300,000 TPS beneficiaries from Haiti, Sudan, Nicaragua, and El Salvador.  
A district court in Ramos v. Nielsen has enjoined these actions.  TPS rescission means, in part, that these individuals cannot secure work authorization in the U.S.  The court’s injunction is based in part on a finding of the president’s racial animus. 

3.        Blocking of Petitions for Naturalization and Adjustment of Status

CARRP: Wagafe v. Trump, and Jafarzadeh v. Nielsen, challenge a covert immigration program created called Controlled Application Review and Resolution Program. CARRP has no congressional approval. Generated internally within the executive branch, CARRP authorizes immigration officials to deny petitions for citizenship or adjustment of status on national security grounds, even if the individual meets all statutory criteria under the INA.  The program allegedly uses overbroad criteria, such as donations to Muslim charities.  Plaintiffs also claim that the program usurps Congress’s Article I exclusive power to set uniform naturalization laws. Plaintiffs have prevailed in both cases.

Military Expedited Citizenship: In a different matter, the Trump administration has blocked foreign nationals from a completing the naturalization process. Non-citizens in the Army’s Selected Reserve program are allowed by statute to apply for an expedited path to citizenship. The Department of Defense has refused to issue a form that is required to certify military-duty status of petitioners, who claim ongoing exposure to loss of their jobs or removal from the U.S. 

Citing a likely violation of the Administrative Procedure Act, the district court in Kirwa v. U.S. Dep’t of Defense ruled in favor of petitioners’ claims for injunctive relief.  The court found that changes in the certification of honorable service were arbitrary and capricious; guidelines on certification of honorable service were impermissibly retroactive; the Defense Department unlawfully withheld or unreasonably delayed certification of naturalization forms; and these changes caused petitioners irreparable harm.

****

The president has lost approximate three out of four cases before courts, and is only 50-50 before a friendly Supreme Court. Courts are serving as a quiet check on presidential overreach, at least up to now.