Month: January 2017

Head-Fakes and Chore Charts

Kara HurvitzLeave a comment

Hello from my lunch break! I’ve heard a lot of people talking about an article here on medium titled, “The Immigration Ban is a Head-Fake — and We’re Falling For It.” The central thesis of the article is that “the administration is deliberately testing the limits of governmental checks and balances to set up a self-serving, dangerous consolidation of power” and that the immigration ban was a “distraction” that we “fell for” by protesting. The article concludes by noting that protesting is a mixed bag which can “help the other side,” and urging reporters to do their jobs properly.

(There, I saved you a click.)

I actually agree the first premise of this article — like the author, I genuinely believe we were witnessing boundary testing of a nascent fascist regime.

That said, however, I do have qualms about the rest of the article. More specifically…

The immigration ban is not a distraction, and protesting is an absolutely necessary response to this boundary-testing, for several reasons:

  1. The immigration bans in place resulted in many, many people throughout the country being detained illegally on Friday. In addition to being real people with very real risk of deportation, which would be life-altering and in many cases potentially life-ending, those people are themselves a bell-weather for further fascist activity. It is absolutely vital that we pay attention to what is happening with our most vulnerable populations, because we know from history that fascist escalation begins there but does not end there.
  2. The protests in airports served as very important cover and coordination for the attorneys working in JFK, Logan, Dulles, and elsewhere. They helped attorneys get people access to representation during detention, file emergency motions that created court holdings (in case anyone were curious whether it’s normal for court holdings to issue on a Saturday, it is not), and test our boundaries against this regime — we can’t know whether they will ignore court orders until there are court orders in place, and once they have done so we have really important information about next steps.
  3. It’s extremely important for the average citizen to be doing things they feel are helping resist, both in terms of general morale and because resistance is a natural counter to normalization. Fascist regimes rely on normalization very heavily in order to work properly; it’s why propaganda is so prevalent and it’s also why you keep hearing politicians say the phrase “This is not normal.” Average citizens might not be able to file motions, but they can coordinate with people who can, and they did, and that is in no way “playing into this administration’s hands.”
  4. Protests reinforce the objectively true fact that fascism is not an end goal of a majority of Americans, which is a piece of propaganda we’re hearing over and over again. Though this article contemplates the idea that Trump has lots and lots of supporters, he actually doesn’t, especially on scary fringe issues like whether Bannon should have the authority to assassinate American citizens. Protests help the average American see that. It’s much, much easier to lie about this if active protest isn’t visible.
  5. Most people don’t know what they should be doing instead, and protests give people who want to do something something to do. This is actually really psychologically valuable, and as long as people don’t conclude they’ve done everything they need to do purely by showing up, it’s not a bad thing that they feel they have helped. So the moral is not “don’t protest,” it’s “don’t only protest” (which, to be fair, that article does state clearly). At minimum most people who showed up also tracked the news, which is very important and a thing we all need to be doing.

All of that being said, if we should be doing more than protesting, what else can we be doing?

I’ve been thinking about this question a lot of late, and more specifically about how we diversify and cooperate over the next four years — I think we all know that everyone doing everything every day just isn’t going to work that whole time, and as the article notes, protest is necessary but not sufficient to enact long-term change. There are so many things we all need to be doing — from gathering information, to disseminating information, to political action, to legal action, to logistical support, to morale boosting, to name a mere few — and we all have a role to play here.

Think of it as maintaining a house together — everybody gets a chore to do, and if all of us are sweeping daily, nothing else gets done. Some of us want to swap chores, and some of us want to do the same one every time. And the beauty of this work is that both of those are possible! I would love it if we were all thinking about how we can work together, playing to our strengths, to get through this.

After pondering this a bit, I concluded the best way to thinking about distributing various tasks necessary for change is to use a process of discernment I learned at school, which is loosely based on a Jesuit process of discernment of spirit (but is not religious).

Here is the basic question to ask yourself:

What…

1. Brings me joy…
2. …And I am good at…
3. …that is needed right now?

Note that those three things, by the way, are in order of importance; something that you really don’t enjoy is not sustainable for four years even if it’s really important, and we all need to be playing to our strengths. Some things, like protesting, are all hands on deck, but all hands on deck is no way to live day-to-day, and it’s a great way to burn ourselves out.

So, to synthesize for those of you who have less time for a lunch break than I do:

1. These are scary times;

2. Protesting is valuable;

3. So are other things, and we should be talking about what else we’re all going to do to keep on keeping on.

Okay, that’s all for now! Time to head back to my own task for social justice, which would be my advocacy day job. I’ll catch you all at the next EO.

Grunkle Donny’s Bargain Emporium: An Early Analysis of the “Reducing Regulation and Controlling…

Kara HurvitzLeave a comment

“Step right up to Grunkle Donny’s Bargain Emporium! We give one unit of credit for every two credits sold! All regulations must go!

Oh, sorry folks, read the teleprompter wrong. I meant to say ‘Grunkle Donny’s Bargain System of Governance.’”

Welcome to the fourth installment of the ever-growing executive order series — though this one is outside my area of expertise, so we’re all sailing without sonar today. But my handy-dandy secondary sources and I are still here to help! Buckle in, friends, because this latest order takes us even further into Wonderland — and just like the Wonderland T stop, we fall asleep for five minutes and end up cranky that we landed here.

Can you just tell us what this thing says?

The majority of the provision can be summarized with one pullquote, taken from Section 1: “[I]t is important that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.” Nope, not a joke. We’re literally applying the same technique we use to clean our closets to federal regulation of government agencies.

There is more to the executive order, of course, because it goes on for four more sections, but it’s mostly just fleshing out this central idea. Though I do enjoy the part where the order says that “the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero.” I can only imagine this is because we’re spending every last cent on that thrice-cursed wall nobody wants. (The following year is slightly gentler, allowing the director of the Office of Management and Budget to issue a maximum total cost for each agency, though I suppose he could just set all of them at zero again.)

Of course, none of this goes into effect until the regulations freeze currently in place ends, which means the soonest we could be seeing any of this play out will be late March. Oh, also, the executive order specifically exempts the following government agencies, because of course it does:

(a) regulations issued with respect to a military, national security, or foreign affairs function of the United States;
(b) regulations related to agency organization, management, or personnel; or
(c) any other category of regulations exempted by the Director.

So just like everything else, if Grunkle Donny likes you, you’ll probably be fine.

Okay… why did he do this?

So that he can cut taxes, presumably, without creating a giant deficit. Also so that he could maintain the illusion of being tough on big government. Of course, as several news articles note, this whole thing is pretty toothless (their word, not mine) because it doesn’t cover independent agencies that were created by the 2010 Dodd-Frank Wall Street reform law, such as the Securities and Exchange Commission and the Commodity Futures Trading Commission. So it’s… a symbolic middle finger, I guess? It manages to be rude and stressful without actually doing much of anything useful, at any rate.

But would this theoretically actually work to lower our deficit?

I guess technically it wouldn’t raise it? But this provision specifically exempts a lot of expensive government programs, such as the military and Our Fuhrer’s asinine wall and anything, y’know, required by law to stay in place. So it’s sort of like sticking a carbon-emitting band-aid on a gaping economic flesh wound. (All right, I can own it; that metaphor got away from me.) At the end of the day, this regulation appears to be much like our President himself: Full of sound and fury, and terrible at saving money.

And that’s about it for today, I fervently hope, though I’m sure we’ll have more executive orders to unpack soon. If you’re looking to catch up on all the other executive orders, may I recommend checking out this excellent list maintained by Politico? Or, of course, you can check out the three in-depth summaries I wrote last week. Or catch up on the news. So many options to ruin any chance of a good mood.

But this stuff is important, and onward we steadily march. Keep on keeping on until we meet again!

National News Roundup: Week 1 (January 22–28)

Kara HurvitzLeave a comment

Hello again, folks! I’m back with another news-related post. (Are you tired of hearing me talk yet? I know I am…)

Several people I know have expressed difficulty keeping up with the news, and requested summaries of major events. While I’m by no means a journalist, I do keep up with the news, more-or-less, and I’m happy to summarize what I’ve been tracking to help folks stay on top of it all. A few preliminaries, because a vague disclaimer is nobody’s friend: For the sake of simplicity, I am keeping this to national news that I have sourced and is within my general areas of expertise (though I may occasionally incorporate other news that is big enough to make it onto my radar). For the ease of reading, let’s divide the news up into The Good, the Bad, and the Weird.

The Weird:

  • Of All the Things to Lie About… After Saturday’s successful marches turned out way more people than the actual inauguration did, Trump spokespeople started acting… a little off, shall we say? Donald Trump insisted that his inauguration was much bigger than it was in front of a Memorial Wall of fallen CIA heroes, apparently angering staff there (because that space is considered venerated). White House Press Secretary Sean Spicer immediately followed suit, citing things like (I kid you not) floor coverings and magnetometers as explaining the discrepancies between Trump’s report and the nation’s ability to view photographs.
  • “Alternate Facts.” Perhaps the most famous truly weird thing to happen involving the inauguration falsehoods was chief counselor Kellyann Conway’s bizarre Meet the Press interview with Chuck Todd. This interview contained several confusing or disturbing statements from Conway, but most of the Internet immediately latched onto her assertion that the statements from Trump and Spicer weren’t falsehoods, they were “alternate facts.” Merrian Webster dragged Conway halfway to Toledo by immediately tweeting their helpful definition of the word ‘fact’ for her, and then just kept on dragging while the rest of us watched in mute awe and wondered just when and how the dictionary started leading the resistance.
  • So Long, State Department Staff! The State Department’s entire senior administrative team left this week, and no one can agree whether they resigned or were forced out (or a combination therein). Everyone agrees that it is unusual either way, and the article I linked to calls it “the single biggest simultaneous departure of institutional memory that anyone can remember.”

The Bad:

  • “We’re Gonna Build a Wall” (and other immigration nightmares). Three different executive orders were signed this week about immigration, all of which contain provisions that are varying degrees of heartless and illegal (though sadly, this venn diagram does not look like a single circle). I wrote a summary of each of these earlier this week, but for those of you looking for the quick and dirty story: One of them is about building that asinine wall that he apparently does, in fact, plan to build. One of them is about policies regarding undocumented immigrants more generally. The last one is about entry for immigrants and nonimmigrants coming from seven countries in the Middle East. All of them can be fairly described as “returning to the Dubbya era, if the Dubbya era were juicing daily.”
  • Pence’s Handmaiden Tale Initiative Bingo. Two different measures limiting reproductive rights happened this week. The first is that HR7, a bill that would prohibit use of federal funds for “abortion or health coverage that includes abortion,” passed in the House (though it still needs to go through the Senate). Trump also issued an executive memorandum that reinstates a Reagan-era ban on funding for international health organizations that provide information about abortions or abortions themselves.
  • Ben Carson: Just One Calorie, and That’s Not-Evil Enough for Us. The Senate Banking committee unanimously voted to approve Ben Carson as Secretary of Housing and Urban Development, which means the vote has been opened for the whole Senate. (Elizabeth Warren was among those who voted yea.)
  • Gagging On Science. The Trump Administration issued varying degrees of gag order on several Executive agencies this past week, which by the way is not exactly legal. Most coverage has been on the EPA and the USDA, but several other agencies (such as Health and Human Services, Interior, and Transportation) have also been impacted.
  • Authoritarian State of the Nation. Amy Kiskind keeps a weekly tab of authoritarian acts in the United States, and has her own set of news from this week. Some of that work is reproduced here, but it’s worth checking out her summary as well — she has a broader scope of political expertise than I do by far.

The Good:

  • Emoluments What Now? A cadre of attorneys, including the leading national authorities for American constitutional law, are suing Donald Trump for violation of the Emoluments Clause of the Constitution. The short version of what this means is that they are arguing that Trump’s elaborate business empire, which provides services to foreign nationals, creates a conflict of interest for him which cannot be resolved, because it potentially makes him beholden to other countries. The suit is demanding that he either divest from his company business interests entirely or step down.
  • Bad-Hombre-Lands and National Snark Service. Somewhat incredibly, after gag orders came down on the EPA and the USDA, and the National Park Service was ordered to take down tweets about the inauguration size, Badlands National Park started “rogue tweeting” climate change facts. After the tweets were taken down, multiple unofficial spoof twitter accounts launched, which now have over 100,000 followers each.
  • Airport Wins (in Some Places). Several different federal courts across the nation have issued holdings that detention of Middle Eastern immigrants in airports, which began Friday after the executive order was issued, is unlawful. One of these cases (the New York case, specifically) had a holding that extended to all practice nationally.
  • Somebody Edited Wikipedia to Include Paul Ryan Among Examples of Invertebrates. This one didn’t even need a snarky heading.
  • National Cute Animal Tweet-Off. Yeah, you read that correctly; zoos and aquariums all over the country engaged in a national cute animals tweet-off on Wednesday. This totally counts as national news. Do yourself a favor and click the link to see many, many excellent fuzzy and scaly friends — you’ve reached the end of this past week’s news, which means you earned it!

Stakes on a Plane: An Early Analysis of the “Protecting the Nation From Foreign Terrorist Entry…

Kara HurvitzLeave a comment

(This is the third installment of a series of articles unpacking the many executive orders issued in Donald Trump’s first week of office. Click here to read the first installment (on the Border Security Executive Order), and here to read the second installment (on the Enhanced Public Safety Executive Order). Though I am not an immigration specialist, I am a legal generalist working with indigent populations professionally full-time. This article is not intended to form an attorney-client relationship or constitute legal advice, though it is my hope that it will help people understand what is going on.)

After nearly two full days of blissfully executive-order-free existence, this one (which was signed at 4:50 PM on a Friday, which just so happened to also be Holocaust Remembrance Day, and is still not up on the White House website) is a real blow to morale. The EO is a significant break from decades of humanitarian effort, and places the lives of many traumatized and suffering people in further peril. I’ll do my best to unpack what the executive order is actually saying, to help families prepare and to inform the average citizen what we can expect on this front. I’m also going to close this post with suggestions for how to support our immigrant communities, because at the end of this week I’m sure many of us are wondering how to help.

Here’s what is new and clearly articulated as of today, January 28:

  • For the next 90 days, entry to the country is suspended for immigrants and nonimmigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. As several writings have noted, this is already being implemented against people touching down in U.S. airports, including people who are legal permanent residents. Now is therefore a very bad time to travel at all if you are an immigrant of any non-citizen status from those seven countries. These countries are widely believed to be targeted due to their predominantly Muslim demographics, though several countries with also predominantly Muslim demographics (such as Egypt and Saudi Arabia) have been left off the list. Since the provision outlining this requires several reports from government officials, we may see some flux in which countries remain on (or are added to) this list long-term. The EO contains an exemption clause “on a case-by-case basis,” when entry “is in the nation’s interest,” which we can probably assume refers to how much various people in the current government already like you.
  • Heart-wrenching changes are being made to the United States Refugee Admissions Program, which this executive order refers to as “realignment”. These changes include a four-month bar of entry for all refugees from all countries — the longest bar in our history, and nearly twice the length of the bar put in place after 9/11 — and indefinite suspension of any accepted refugees from Syria. During that four-month bar, the Department of Homeland Security will make currently-vague determinations about which countries will have reinstated refugee programs after the bar has lifted, though presumably this would not include anyone from the seven countries listed above. The executive order also limits the total number of refugees that may be admitted to 50,000 in fiscal year 2017, which is less than half the number in place before this order was issued (and the lowest number cited in over a decade). Once the USRAP is resumed, priority will be given to people who are religious minorities in their home country, which Donald Trump has clarified publicly to mean Christian applicants. The executive order also contains the same general exemption “on a case-by-case basis,” when it is “in the national interest” (which probably means Our Fuhrer’s interest, though the executive order does mention potential exemptions for people already in transit). I’ll talk more about what these provisions mean, and how they change life for people fleeing traumatic and dangerous circumstance, in a section below.
  • Many, many more reports more reports are being ordered from the Secretary of Homeland Security and the Attorney General, as well as a few more from the Secretary of State. The executive order requires reports every 30 days pursuant to Section 3, reports within 60 and 100 days pursuant to Section 4, reports within 100 and 200 days pursuant to Section 5, reports within 100, 200, and 365 days pursuant to Section 7, and reports every 180 days pursuant to Section 10. This is, keep in mind, in addition to all those reports ordered by the other two executive orders. Only the reports about terrorist acts will be available to the public (because keeping all of America terrified seems to be an actual goal of this administration), but I honestly don’t see how all of the other reports are even going to get done — Trump did, after all, order a hiring freeze, and several reports also involve a State department which has been famously vacated this past week. I would feel bad for these officials, except for the part where the writing on the border wall was about nine feet high on this; constant reports are a known favored technique in this type of government regime.
  • Screening is being made more rigorous on a number of immigration-related fronts, and will include more biometric measures such as fingerprinting for entry and exit from the country. Though it’s not clear what all of those measures will be — we already have a pretty robust set of measures in place for screening — it’s clear that these measures will mean much more work for immigration staff and much longer wait times overall. The executive order does specifically call out interviews for every single visa applicant, and the American Immigration Lawyers Association has put out a pretty good summary list of other changes mentioned in the executive order:

o Uniform screening standards and procedures (such as in-person interviews);

o The creation of a database of identity documents;

o Amended application forms with questions “aimed at identifying fraudulent answers and malicious intent”;

o A mechanism to ensure that individuals are who they claim to be;

o A process to evaluate the person’s “likelihood of becoming a positively contributing member of society” and “ability to make contributions to the national interest”; and

o A mechanism to assess whether the applicant has the intent to commit criminal or terrorist acts after entering the United States.

Some reality-checking about these policies:

  • Refugee vetting is already very, very vigorous. The previous administration put out a very good infographic of exactly how the vetting process worked prior to this week, and I urge you to read it. I also recommend this ProPublica twitter thread, which provides many, many resources for understanding the general process.
  • The United States Refugee Admission Program is a humanitarian effort designed to help people fleeing unimaginable trauma and horrific circumstance. By definition, in order to qualify for the program, an applicant has to show credible fear for their personal safety in their home country. Refusing all admission for four months is tantamount to that moment in a horror movie when all the doors slam shut and lock themselves, leaving terrified victims trapped in the house to die. And since the rest of the executive order contextualizes this act as aimed at Muslim populations, that will have a very real impact on the radicalization of Islam on a national stage.
  • Many of the provisions limiting entry generally are very likely to be illegal. The Council on American-Islamic Relations has already filed a constitutional suit against this executive order, and complaints have also been filed by the ACLU and other immigration law organizations. These suits cite due process violation and equal protection violation. The New York Times also put out a decent article about why nationality-based discrimination of this magnitude may be illegal under prior legislation, which I recommend reading. Expect many, many organizations to challenge this executive order swiftly with the fury of a thousand suns. And on a related note…

Here’s how you can help advocate against these orders:

  • Now is an excellent time to donate to CAIR, the ACLU, and other immigration-based advocacy organizations. Both CAIR and the ACLU are poised to become embroiled in lengthy and expensive suits to defend people’s rights, and that means they will greatly benefit from both time and money.
  • Pay attention to local and national advocacy efforts. Many organizations are already leading efforts to educate and assist people experiencing immigration-based discrimination. As noted above, both CAIR and the ACLU have already brought suits about this executive order. The American Immigration Lawyers Association has also been putting out excellent press releases. The Political Asylum/Immigration Representation Project has been putting forward a Know Your Rights initiative to educate people on the ground level, including topics like safe travel in their information. If you live in Massachusetts, like I do, the MIRA Coalition puts out regular news about immigration-related efforts and is a great place to find links helping people on day-to-day immigration issues. Mayor Walsh and Governor Baker have also put out some statements in the past week that indicate their general posture on the topic of sanctuary, giving us a clear picture of where and how advocacy may be next directed.
  • Consider assisting with protests and other on-the-ground efforts. Protests can be particularly dangerous for immigrant populations, because arrest can lead to deportation. This means that joining protests (such as the CAIR rally happening at Copley Square tomorrow) can be an excellent way to assist and show support, and also potentially can be a way to learn of other future efforts.
  • Stay informed about changes on the national stage. You’re already doing this one if you have gotten this far into this article, and I’m just going to take a moment to sincerely say: Yay for you! I encourage you to keep it up. It’s hard, but incredibly helpful, to know what is going on.

And that’s about all I got on this particular executive order, though I’m sure we’ll be hearing more in the weeks and months to come — and while I wish this were the last summary in this series, I know that it won’t be. Stay tuned for more awful, folks, and thank you for your diligence.

Whose Safety? An Early Analysis of the “Enhanced Public Safety” Executive Order

Kara HurvitzLeave a comment

(This is the second installment of a series of articles unpacking the many executive orders issued in Donald Trump’s first week of office. Click here to read the first installment, on the Border Security Executive Order. Though I am not an immigration specialist, I am a legal generalist working with indigent populations professionally full-time. This article is not intended to form an attorney-client relationship or constitute legal advice, though it is my hope that it will help people understand what is going on.)

Either I love my country or I hate myself, because here I am drafting another essay at 9:45 PM. (Or both. Possibly both.) At any rate, it’s an oft-quoted maxim that the more innocuous a law’s title is, the more insidious the actual contents are— and the Executive Order on Enhancing Public Safety in the Interior of the United States is no exception to this rule.

There’s some familiar language from the other executive order:

  • The creation of 10,000 ICE officer positions, despite the general hiring freeze in place for all federal positions. This one sounds an awful lot like the 5,000 border patrol jobs created in the other executive order from today.
  • The Secretary of Homeland Security may deputize any and all state and local police infrastructure of the United States as Immigration and Customs Enforcement officers. I think the language of this provision is literally exactly the same, though I suppose I can’t fault the administration for recycling it.
  • Much like we’re repealing “catch and release,” we’re also repealing the Priority Enforcement Program. The order reinstates the Secure Communities program, which was in place from 2008–2014, and is generally much more aggressive about sending people into ICE custody when they are charged with crimes. Given that the program arrested 3,600 American citizens, I can’t say I’m excited about the change, but nor can I say it’s all that surprising.

Some of the provisions, however, are very different:

  • In general, there is a lot more rhetoric involved, especially in the initial sections. I personally don’t believe these sections are rooted in fact or otherwise worth repeating — there’s little substance to be gleaned, except perhaps for the insight they show into the administration itself. I suppose it might be worth reviewing the Purpose section if you want to get good and angry about something. I’m noting some general fact-checking below, both to educate and to help myself feel better about the world.
  • Unlike the previous executive order, which at least presumed illegal entry into the country, this executive order contemplates immigrants who have engaged in no illegal activity. In addition to the general provisions about criminal conviction, Section 5 also discusses a variety of other categories of immigrant — almost all of which are very vague and have obvious problems with enforcement. If nothing else, it’s not clear how the factual findings necessary to determine someone belongs to one of these categories would even be made, and it seems to largely be left to the officer’s discretion. Here’s the full list:

(b) Have been charged with any criminal offense, where such charge has not been resolved;

(c) Have committed acts that constitute a chargeable criminal offense;

(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e) Have abused any program related to receipt of public benefits;

(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or

(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

  • This executive order talks about consequences for so-called sanctuary jurisdictions — and both the status of a “sanctuary jurisdiction” and the appropriate sanction are determinations that the federal government gets to make. The Attorney General and the Secretary of Homeland Security, to be more precise. They also have the power to exempt cities from these sanctions, despite finding a city to be a sanctuary jurisdiction, for the purpose of funding more law enforcement. About the only good thing I can say about this provision is that the ACLU has probably already filed a request for injunctive relief from it.
  • This executive order literally requires the Secretary of Homeland Security to publish weekly reports documenting “criminal acts by aliens” and what jurisdictions are “failing to honor” detainers for those people. Weekly reports. Of all immigrants charged with crimes. For every single jurisdiction in the United States. I hope General Kelly wasn’t planning on sleeping anytime in 2017.
  • The administration is creating a special Office for Victims of Crimes Committed by Removable Aliens. It’s not clear what this office would actually do, other than issue quarterly reports on what it’s doing — the order just says it has to “ provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims.” I can’t even imagine what this is going to look like, for reasons I’ll describe below.
  • The AG and Secretary of Homeland Security also apparently have to create quarterly reports documenting the immigration status of everybody being held pretrial basically anywhere. It includes federal systems, state systems, “local detention centers,” and U.S. Marshall federal pretrial custody. So that’ll be fun to get done with a skeleton staff during a hiring freeze.
  • The order specifically exempts immigrants being detained from the Privacy Act of 1974, which I’m honestly not even sure they can do. This is another provision that the ACLU has probably already filed a request for injunctive relief about — it’s essentially changing legislative law, which the Supreme Court generally frowns upon. At any rate, this provision needs to exist in order for the order of public weekly reports to be at all legal, because it would otherwise be subject to the Privacy Act. So if this provision tanks, presumably the weekly criminal charge reports and quarterly immigration status reports would go down in flames as well. You know, if they haven’t already been doused in gasoline and napalm by an irate Secretary of Homeland Security who doesn’t have time for this nonsense.

Some general fact-checking of note (in case it’s helpful to you, and before I rupture something):

As I mentioned above, this particular executive order contains a plethora of misinformation and downright propaganda. In the interests of clarification and also not punching nearby walls, I would like to unpack some of it for you:

  • There is no evidence to suggest that immigrants commit crimes at greater rates than citizens; in fact, all relevant studies show they commit crimes at lower rate due to higher risk exposure. I can personally confirm this through professional experience, but since I would never encourage you to simply take my word for it, here are some articles on the matter.
  • There is no evidence to suggest that sanctuary practices “destroy the fabric of the Republic” or “have caused immeasurable harm to the American people.” Putting aside the fact that there have been no studies done on this to date, it doesn’t even make intuitive sense — by definition, sanctuary practices are only enacted in circumstances where the local government believes it would be disruptive to their governance and general public safety to comply.
  • There is no evidence to suggest that people who are out of status represent a greater threat to society than people who are present legally or are citizens. In fact, many people who are out of status in the United States don’t even know they are out of status, because they have failed to comply with confusing regulations and believe they are here legally.
  • There is no evidence to suggest that complaining witnesses in crimes with immigrant defendants require special protections. Again, immigrant populations don’t even commit crimes at the same rates as citizen populations, likely due to higher risk exposure. And when people who immigrate do commit crimes, there’s very little commonality in the charges, which means there’s also very little commonality in the victim populations. This is like creating an office to study Victims Named Bruce.
  • It is literally the current structure of immigration law to “exempt classes or categories of removable aliens from potential enforcement” based on circumstance and public safety risk. That is how humanitarian-based special status works. Asylum status, refugee status, SIJ status, humanitarian parole, T visas, and U visas all function as form of exemptions, which means this executive order is literally saying that we cannot faithfully execute immigration laws if we faithfully execute immigration laws.

As several news sources have insinuated, this is likely not the last executive order we’ll see this week on the topic of immigration. I’ll continue to write about executive orders as I am able, though I think two articles is my upper limit for one evening. If you’ll excuse me, I have a date planned with a pocket constitution and a pint of cotton candy ice cream, and I’m told it’s rude to keep either of them waiting.

Tales from the Borderlands: An Early Analysis of the “Border Security” Executive Order

Kara HurvitzLeave a comment

(This is the first installment of a series of articles unpacking the many executive orders issued in Donald Trump’s first week of office. Though I am not an immigration specialist, I am a legal generalist working with indigent populations professionally full-time. This article is not intended to form an attorney-client relationship or constitute legal advice, though it is my hope that it will help people understand what is going on.)

Of all of Donald Trump’s promises, perhaps his most famous was his promise that he would personally ensure that the American government would “build a wall” to keep out “illegal immigrants.” It is therefore not surprising that one of his first acts in office is to sign an executive order entitled “Border Security and Immigration Enforcement Improvements,” which outlines his plan for building a wall (among other things). The order is long — it contains seventeen distinct sections — and a lot of it is either vague, confusing, or both. This article is intended to break down what the executive order is actually saying, to help families prepare and to inform the average citizen what we can expect on this front.

Here’s what is new and clearly articulated as of today, January 25:

  • The administration is ordering a wall built on the border between the United States and Mexico. Yes, that’s really a thing that is apparently happening. That said, it’s still unclear what the funding streams will be, what the budget will be, or generally what the plan is for construction.
  • The administration is ordering new detention facilities built near said wall. Again, it’s not clear where the funding is coming from or what the budget will be, though I’ll write more on that below. If Congress doesn’t cooperate, the actual construction is probably not going to happen.
  • Pre-proceeding release will no longer be a thing. The actual language of the executive order describes “the termination the practice known as catch-and-release,” which is really just a fancy way of saying “we won’t let people out before their hearings anymore.” This practice actually was originally terminated in 2006 under President George W. Bush, but much like NSEERS we’ve been walking that back under subsequent policy since 2009 or so. This is a big deal, both because it’s not especially humane and because refusing to release people puts huge amounts of strain on the detention systems, which often aren’t equipped to hold people in the numbers they are apprehended. This executive order does have a plan for that, but… you’re probably not going to like it.
  • Though we now have a federal hiring freeze for most government agencies, good news: The Wall is Hiring! The Secretary of Homeland Security “shall” (which is legalese for “this ain’t optional, Hoss”) hire 5,000 more border patrol agents, which the administration wants stationed “as soon as is practicable.” And they said Donald Trump wouldn’t create more jobs.
  • The order compels every executive department and agency to report all aid and assistance to Mexico since 2011. Folks, I honestly wish I were making this one up, but the language isn’t exactly ambiguous. Despite it not being remotely illegal to provide funds or otherwise provide aid to Mexico during President Obama’s tenure, each executive department and agency “shall” (there’s that word again) “identify and quantify” all such aid going back five years — in other words, not just what types of help everyone has given, but how much. They make sure to include language specifying that they mean “all bilateral and multilateral development aid, economic assistance, humanitarian aid, and military aid.” The first report is due to the Secretary of State within thirty days of today’s report — so by the end of February, basically. And thirty days after that, the Secretary owes a report directly to the President. Incidentally, note that all of this involves the Secretary of State, not the Secretary of Homeland Security. So, you know, that’s promising. Also, the section outlining all of this contains a grammatical error, which I note in a vain attempt to make myself feel better about the whole thing.
  • The Secretary of Homeland Security is now allowed to deputize any and all state and local police infrastructure of the United States as Immigration and Customs Enforcement officers. This is another one I dearly wish I were making up, because my concern that it might happen has been literally keeping me up at night. But again, the language is not ambiguous — “as the Secretary determines are qualified and appropriate,” police can be authorized “to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary.” Oh, but in case you were worried about those poor ICE officers being out of a job, you needn’t be; the very next sentence clarifies that this is “in addition to, rather than in place of, Federal performance of these duties.”
  • This executive order is really hoping you haven’t heard of the concept of ‘sanctuary.’ It grants officers “access to all Federal lands as necessary and appropriate to implement this order” as well as authority “to perform such actions on Federal lands as the Secretary deems necessary and appropriate to implement this order.” I’m not sure how this one will be implemented in cities that refuse to cooperate, but I guess we’ll find out.
  • They want prosecution of people detained at borders to be a high priority. I know this because they explicitly say so. There’s a section devoted to it and everything — and the petty part of my brain that wishes none of this were happening would like you to know that they use the term ‘nexus’ wrong while saying so.
  • There will be monthly reports on their apprehension statistics. In a “publicly available way,” though it’s unclear what exactly that means.

Here’s what the executive order might be saying, but we need more information to really know:

  • Detained immigrants may be sent back to the place they are fleeing — or they might not. The exact language in the executive order is “The Secretary shall take appropriate action . . . to ensure that aliens . . . are returned to the territory from which they came pending a formal removal proceeding.” It’s not clear whether that would mean “we stick you in a truck and give you a nice starlight tour of Mexico,” or it actually means people might be extradited to the country they are fleeing. As awful as the former would be, the latter would be even worse — but it’s likely the latter is the accurate interpretation, because this administration has been adamant in its denial of refugees, and the policies in this order about asylum aren’t exactly much better. Relatedly…
  • Asylum might be about to become impossible to obtain at the border. Some provisions of this executive order promise to “end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.” This is a confusing statement to me, in addition to being a vague one, for a variety of reasons — first of all, it’s not exactly easy to get asylum granted; though rates vary by location and by type of application, less than one-half of asylum applications are granted annually. But also, from a legal perspective, you’re not a removable alien on the basis of status anymore if you have asylum status granted; it’s literally a status that grants the right to permanent legal residence. This is like saying “we will end abuse of the self-defense doctrine currently used to prevent the lawful incarceration of people who punched someone assaulting them and then ran like hell.” At any rate, that confusion aside, it’s not really clear what abuses they are contemplating or whether they are saying asylum will stop being a defense to deportation, so we’ll need to keep watch on this front and wait to see what is going on.
  • Special Immigrant Juvenile Status might also be about to become impossible to obtain at the border. Right now we have a status that is like asylum that specifically can only be applied to unaccompanied children — it’s called Special Immigrant Juvenile Status (or SIJ status for short). This executive order tells the Secretary of Homeland Security to “ensure that unaccompanied alien children are properly processed, receive appropriate care and placement while in the custody of the Department of Homeland Security, and, when appropriate, are safely repatriated in accordance with law.” It’s not clear whether this processing means deportation, or if it means filing SIJ paperwork; I guess we’ll need to wait and see on this one also.
  • The administration may be assigning asylum officers and immigration judges directly to detention centers. The language in the order itself isn’t entirely clear, but it sounds like the order is simply installing asylum officers and judges directly in the detention centers. To my knowledge, this is new — though it’s possible to plead asylum as a defense to deportation, traditionally that’s done at the court as part of deportation proceedings, just like the proceeding itself. This provision is probably not legal, in case anyone was curious. It sounds like they are expecting many of these cases won’t even get to the deportation proceeding stage , which would be a staggering change if I’m reading this correctly. Basically, they are aggressively minimizing how much detainees even get to set foot in the country at all.

Here’s what the executive order dictates for the near future, which presumably will clarify some things:

  • Several reports or reviews. Per the executive order, there’s a report due to the President in ninety days on the general progress of all of these directives, and another one due in one hundred and eighty days. There’s nothing guaranteeing that any of us will be told anything about this, but I suspect strongly that anything that makes this administration look good will be reported upon at length.
  • A budget of some kind for the project. Though there’s nothing guaranteeing we’ll see this either, it is required per the order itself for the current and next fiscal year. That gives them more-or-less six months to slap something together.

And now you know everything you ever wanted to know about this executive order! And presumably several things you didn’t. At any rate, it’s going to be a rough few years, but if you are reading this, you presumably knew this already. Keep on keeping on, and take care of yourself while you do; we’ll do everything we can to keep all of this bearable.

(Note: Click here to continue to the second installment, on the Enhanced Public Safety executive order.)

This Should Probably Be More Self-Evident Than It Is

Kara HurvitzLeave a comment

Though I don’t believe the inherent morality of humankind is improving with time, the available technology, and particularly our ready access to information, absolutely has. In Jackson’s era, it was possible to go one’s entire life believing racist things that were never disproved within one’s immediate frame of reference. In our current information-laden era, in contrast, it is possible to go to websites whose express purpose is to research rumor and belief and articulate their factual underpinnings — and we have ample scientific evidence negating the idea of racial superiority. Further, the entire nation literally just lived through eight years of efficient governance by a Harvard-educated black man. No one is saying that Obama was not an effective President; in fact, the common Breitbartian complaint and battle cry is that it’s necessary to undo all that President Obama accomplished–because that is a long list.

In other words, antebellum America had commonplace racist beliefs and rigid societal structure that strongly restricted disproof of these beliefs. We, in contrast, have ready access to Snopes and a black President.

This is probably obvious to you, as well it should be, but it also has an important corollary that I haven’t heard anyone talking about:

In this era of ready information, belief in the myth of white supremacy requires more than mere ignorance; it requires active and intentional disregard of available knowledge. For this idea to find purchase, it must be inherently more comforting to the recipient than an acceptance of meritocracy. The myth of supremacy is a security blanket that white racists are refusing to outgrow, and rather than accepting facts they are cocooning themselves in untrustworthy and laughably false information in order to protect the myth. There is no ‘empathy’ that will get around this, because it is the reaction to the myth of superiority that is driving it and the person has already preemptively rejected egalitarian progress.

This is why it is so hard to ‘go high when they go low.’ This is why ‘meeting people halfway’ is a myth. White supremacy in this day and age is a primitive ego defense driven by an ugly desire to see other people fail, and it actively drives society backward.

Advocating to Callous Listeners: Five (Not-So-Easy) Steps

Kara HurvitzLeave a comment

This is a very strange Martin Luther King Day. In my lifetime, we’ve always had a long way to go on race relations–I think most people agree we were not enjoying a post-racial society before the November election–but this is the first time that a President-Elect picked a fight with a civil rights legend the weekend before his inauguration. And, more importantly, this behavior does not exist in a vacuum–our President-Elect ran on a blatantly racist, homophobic, ableist, and Islamophobic platform, and though he did not win with a majority, he did win. And his victory (such as it was) emboldened racist people throughout the country to say what they really think–or, as was the case in many school bathrooms and Congressional floors throughout the country, do what they really think. And most of us who are decent human beings are horrified by this, and want it to change.

However, when many of us with these reactions tried to talk to our family/colleagues/friends/neighbors’ cats who supported Trumpian politics, we had a second horrifying realization: This person we were speaking to did not care about fellow human beings. “The Black Lives Matter movement started because people are dying,“ we told them, and to our abject horror, they just didn’t care. Appealing to a sense of humanity did not work, because the listener did not view the subject population as people.

And this is the point where many of us well-meaning advocates, and especially allies, start to draw a blank about what to even do next. Recognizing the humanity of fellow human beings is so basic to us that we don’t know what to do when someone rejects it–the carburetor in our brain stops turning over, and we stand there sputtering, “But they should!” And we’re right–they should–but they still don’t.

I know something of this challenge, because I spent four and a half years writing about mitigating factors of very marginalized and vulnerable people for a living. Talking to people about their experience above has made me realize it might be helpful to talk about my trial and error process. To that end, I’ve drafted a quick primer on an unofficial five-step process I’ve identified over years as a professional advocate for speaking to listeners who have already reject moral and empathy-based arguments. Though this is by no means exhaustive and makes certain assumptions about the relationship between the speaker and the listener, I’m hoping it’s a helpful start for the average ally and advocate.

1. Let Go of ‘Should,’ And Recognize ‘Is’

This is the first step, but it’s also by far the hardest–if you can manage it, the rest becomes much easier. Most people reading this probably agree that anyone with the empathy God gave a grapefruit thinks that other human beings dying through preventable means is bad. The natural corollary that extends from this understanding is that this person we are speaking to does not, in fact, have the empathy God gave a grapefruit. There’s a real impulse to reject not just that person, but the whole rest of the process–“Well this person is terrible, so until they aren’t, I’m done.” And I hate to break this to you, Dear Reader, but if you have set out to advocate you are not, in fact, done–or at least, not just because this person should have empathy and doesn’t. Nobody is going to make those people play by the rules of basic humanity. People who show they lack empathy to a degree that appalls you still sometimes need to be dealt with, and walking away in those situations is a luxury we’re losing the ability to exercise. You gotta even. I’m sorry.

This doesn’t mean that you have to think this person is wonderful, of course–as soon as you are done interacting with that person in that context, it is appropriate (and even healthy) to blow off steam about how awful it was to engage with them. It’s part of the human condition. But you definitely can’t have a win condition without even playing the game, and that means recognizing the reality in front of you.

2. Identify Goals (Ahead of Time, if Possible)

You’ll note that I said above, “People…sometimes still need to be dealt with.” The obvious corollary is that sometimes, they don’t. The best way to avoid banging your head against a human brick wall for an hour is to have a good idea of whether you need to deal with this person–and the easiest way to do that is to identify your goals. And even when you do need to talk to a person, having a firm understanding of what you’re trying to achieve helps you get in, say what you have to say, and get out–so it’s very helpful to know going in. What are you trying to achieve by talking to this person? Do they control access to a resource you need? Are they engaging in a damaging behavior you want to stop? Are they voting all of our human rights away in the first week of their first session before your eyes? (Spoiler: If your answer is “I want to let them know that their ideas are bad and they should feel bad,” I recommend walking away.)

To help you see what I’m talking about, let’s go through an example scenario–for the purposes of this essay, let’s pretend we are members of Congress, which is both a helpful universal and a pleasant daydream. Mitch McConnell is holding another Senate vote about the Affordable Care Act. The Senate committees have come up with alternate legislation, and it’s just forty blank pages followed by the words “Buy an HRSA.” People may die if we can’t convince some of the Republican Senators who voiced early opposition to the lack of “replace” in the phrase “repeal and replace” to vote differently this time around.

3. Look for Carrots and/or Sticks

Okay, so: You’ve accepted that the obvious appeal to humanity won’t work, because the listener is a jerkfaced jerk. But they’re a jerkfaced jerk who has a thing you need. Now what?

Here’s where the first thing I mentioned becomes really important–because figuring out what is going to be effective requires an understanding of what motivates that person. Please note that I am not adding my voice to the chorus of white people saying that everything will be fine if we just give white supremacists more empathy, which I believe is a dangerous model of thought at best. But in order to advocate, you need to know what a carrot and/or a stick would look like for this person, because everybody has their own carrot and stick–and you can bet that a racist callow person’s stick and carrot probably don’t look like yours.

To continue the example above, let’s talk about what would constitute a relevant carrot and stick for your average Republican Senator. Though this is an incredibly complex topic, for the purposes of this exercise let’s assume the carrot probably looks like money, or political capital. The stick probably looks like being voted out of office.

So as we’re navigating negotiation with these Senators, we need to either figure out why the ACA will save/earn them money or figure out why they should fear what their constituents will do if they accept this legislation.

4. Offer a Carrot or Raise a Stick, and Preferably One that You Believe

This is another hard but crucial step, because it requires you to take on the listener’s paradigm long enough to persuade them. It honestly does help to believe what you are saying, for several reasons. First of all, a credible argument tends to carry more weight; a thing even you don’t believe is generally not that persuasive to other people. But more importantly, an argument you can accept as true helps you remember is that speaking this person’s language doesn’t mean you hold their values, or that you agree with them–it just means you need something from them and you have to figure out how to coalition-build in order to make that happen. It’s helping them figure out why they want to do this thing you want them to do anyway. (And lastly, though perhaps this should go without saying, it is never a good idea long-term to lie your way to a built coalition, as this creates many problems for both you and others throughout the process.)

Let’s go back to our replacement plan vote. Though I’m generally a carrot person by personality and trade, in this instance I think the stick is easier to argue. As I noted above, this is incredibly complicated, but for now let’s pick one stick: That preserving the ACA probably will not save these Senators money, but constituents relying on the ACA will not be happy to see their health insurance evaporate–even if they currently don’t know it. Elaborating on that is where the advocacy starts, and ideally is the vehicle by which change happens. Awesome and canny Senators that we are, we talk with the folks who are already wavering about why their instincts are good and this move is risky. We note their specific reelection dates. We note how long it would take the ACA to be effectively repealed. We observe how close the end date will be to their campaign season. We heroically refrain from yelling at them. We generally try to persuade them that their scary inhuman boss won’t even be their boss in two years if they do this now. In an ideal world (or at least, in this tiny scenario we have built), we are successful.

5. Take Care of Yourself After the Rinse/Repeat Cycle Ends

Most people’s minds aren’t changed in a single five-minute session; it takes a lot of work and internal screaming and fantasizing about shaking them by the shoulders. This process is hard on a person, and appropriate self-care should be treated as a necessary step. Do what you need to do in order to stay healthy, and that tends to be different things for different people. I encourage you to think of self-care as the final step of the advocacy process, because it’s that crucial.

To wrap up, let’s talk about final steps in the Congress scenario. After several grueling hours of arguing convinces my Republican colleagues to vote against the bill, I am tired and hungry. So I reward myself. By eating their share of the vote-o-rama pizza.