National News Roundup

Ellison, Dershowitz, and the Jewish American Iceberg

February 26, 2017 Kara HurvitzLeave a comment

Hi there, fellow American Jews. It’s been a chaotic couple of months for us nationally, hasn’t it? Sixty-nine bomb threats at Jewish Community Centers in 27 states, the desecration of almost 200 graves at a St Louis cemetery, Trump’s meeting with Netanyahu last week and all the confusion that came along with it, his inappropriate response to a Jewish reporter questioning his lack of engagement…it kind of overshadows a lot of other things going on.

Basically, what I am saying here is… can we talk? I think it’s past time that we did. (And if you’re not an American Jewish person, dear reader, you are still more than welcome to listen in on the conversation.)

I know I just listed a lot of things, so let’s pick a concrete example in the recent news to focus on. Since it just happened, how about we talk about Keith Ellison and the Democratic National Committee?

For those of you just joining in, Keith Ellison is the first Muslim person to be elected to U.S. Congress. He was one of two frontrunners to become the next chairperson of the Democratic National Committee, along with former labor secretary Thomas Perez. He lost to former Secretary Perez in the second round of voting on February 25, at least in part due to high-profile Jewish establishment opposition: the Anti-Defamation League had been opposing his nomination since November; prominent Democratic members such as Alan Dershowitz threatened to leave the party if Ellison was elected; major donor Haim Saban called him anti-Semitic and anti-Israel. This opposition was based largely on statements made in a 2010 speech about U.S. foreign policy in the middle east and on shaky evidence that Ellison had been previously involved with the Nation of Islam. Perhaps because of this bitter opposition to EIllison, Perez wasted no time in making him deputy chair, and Ellison similarly wasted no time on asking people to accept Perez’s legitimacy. I think we’re all hoping to avoid the bitter Bernie holdouts that plagued the 2016 election.

We need to talk about Keith Ellison, and the National Democratic Committee, in the same breath as the conversation about all the antisemitic incidents I listed above — because these facts taken together represent the visible tip of a much uglier iceberg, and if we’re not careful we’re all gonna crash on it. To unpack this particular snarl of ice and nastiness, we’re going to need some history lessons in their own right. I’ll do my best to be a good tour guide, if you’ll follow me through this corridor…

Some Facts about Jewish Americans

I’ll start you off gently; let’s talk a moment about the ADL and Dershowitz part of the above equation — and to do that, we have to talk about American Jewish history.

The History Lesson

Though history of the American Jewish experience is by no means perfect, it’s no secret that American Jews historically enjoyed much more freedom and assimilation than many of their European counterparts. There is certainly a history of antisemitism among both the general population and prominent figures in the United States — Henry Ford and Walt Disney spring to mind — but there is no history of organized hateful action. We have no history of pogroms in the United States. Outside of the noted story of Leo Frank, we have very little history of Jewish lynching in general, and certainly not the extensive history of other marginalized populations. We also have absolutely no American experience of widespread systemic governmental discrimination like that of the Nuremberg Laws, let alone the ethnic cleansing these laws helped create. Prior to this past year, for the most part, Ashkenazi Jews were simply treated as part of the white landscape.

Nothing illustrates this stark difference in experience more than World War II. World War II was not a great time to be an American Jew; the United States was not very willing to assist refugees and antisemitic sentiment was rampant. But, fundamentally, the same basic populations were systemically murdered on a racial basis in one Western civilization and merely a disliked scapegoat in the other. Confusing issues further, after the war European refugees of the Holocaust resettled in America, adding to a larger Jewish awareness of antisemitic horrors that claimed millions of lives on foreign soil.

The Implications

This disparate history places the American Jewish consciousness in a strange heisenstate, which contextualizes both Alan Dershowitz (or, to cite a more extreme example, Jonathan Greenblatt) on one side and Jewish Ellison supporters like Bernie Sanders and Chuck Schumer on the other. It also partially contextualizes Breitbart’s strange love affair with Israel and the pro-zionist alt-right generally, though that’s a whole other kettle of fish and we could be here dissecting it all day. In short, American Jewish culture both partially integrates into American white culture and remembers a phantom specter of genocide at the same time, which means it can leverage very real racial privilege to respond to perceived racial trauma. When that leverage is applied to a messy Zionist context, we start to see Democratic attacks like those against Ellison.

Some Facts about Muslim Americans

Now let’s talk about Ellison, and to do that, we need to return to one of the basic facts above: Representative Ellison is the first Muslim person to serve as a U.S. Congressperson.

The History Lesson

The Constitutional Congress as we know it today was created in 1789. Ellison was first elected to Congress in 2006. In other words, we went nearly 225 years as a country before we elected a single Muslim person to serve as a representative. The first documented Muslims in America were brought over on slave ships, and Muslim American communities have existed for hundreds of years — though communities of practicing Muslims have grown considerably in the last century, they are by no means new. So why did it take so long to have a Muslim representative?

American Muslims are an extremely diverse group, making up many different populations, but members of this group have a lengthy history of experiencing oppression and marginalization in the United States spanning centuries, especially as it connects to the American history of Black subjugation — from the populations brought over as slaves to the role of Islam in black nationalism in the twentieth century. More recently, in the wake of 9/11, Muslim Americans also experienced forced registration under NSEERs, a dramatic increase in hate crimes, and a whole other host of other forms of marginalization. These things don’t exactly make it easy to get national representation.

The Implications

The very history noted above makes Islam a unique faith among Abrahamic religions — it has been associated for centuries with American persecution, enslavement, and suffering. It is probably not a stretch or an exaggeration to say that the American Muslim experience generally, and the Black Muslim experience in specific, mirror the Jewish experience in Europe much more closely than our Jewish experience in America. While American Muslims certainly don’t have a corner on American persecution, the intersection of religion and race is a toxic combination in the hands of white supremacy — as well we know from the Holocaust — and there’s very little quarter to be found right now. This population has both greater need and less entrenchment than Jewish populations do, and those two things are related.

Some Facts about the Iceberg

Okay, so let’s tie all this back to the current political climate.

The History Lesson

It’s becoming axiomatic to compare Trump’s America to Nazi Germany — but if we’re drawing a direct parallel, American Jews aren’t playing the role of the Jewish people in Europe; that honor belongs to Muslims living in America, and Muslim immigrant populations specifically. (Although other immigrant populations are experiencing a close second place.) Ellison got in trouble for comparing 9/11 to the Reichstach Fire, but the past few months have proven the comparison fairly apt, especially as we navigate threats of a renewed registry, a draconic travel ban, and aggressive deportation practices. This is a deeply frightening time to be a Muslim person living in America.

If we extend that metaphor further, the DNC’s obnoxious squabbling starts to look an awful lot like the German political stage circa November 1932, when a unified front probably could have stopped Hitler but instead political intrigue ended free elections for almost two decades. (I know, I know, the Reichstach Fire was actually shortly after that election, but roll with it for now.) Ellison was right to try to bring his supporters into the fold as quickly as possible, and I respect the language he used — infighting is a luxury and we don’t have it anymore. We’re currently experiencing frightening regressions or attacks on so many fronts — immigration policies, LGBT civil rights, healthcare rights, reproductive rights, environmental protections, humanitarian efforts abroad, both the arts and the sciences… the list goes on and on and on. Regardless of who would have made the best Chairperson/President/Supreme Mugwump/roller derbiest, we need a solid coalition or people are going to start dying. (Though, for the record, I do think Perez will make a pretty good Chairperson.) Fortunately for Alan Dershowitz, that leader did not turn out to be Ellison. But if it had been, walking away is a luxury he would not have been able to afford — him, personally, to say nothing of America — and we need to talk about why.

The Implications (for American Jews)

I am safe to walk away from the Democrats, I can hear the Alan Dershowitzes of the country privately saying, because this administration loves Israel so much. Because Jared Kushner and Ivanka Trump observe Shabbat and have the direct ear of the President. Dershowitz, and others like him, believe the Republican party would still welcome him despite its new marriage to the alt-right, and he believes they have his back more than Democrats supporting Muslim Americans do.

But Kushner and Ivanka’s roles are themselves nothing new; Jewish people have enjoyed complex relationships with power at many points even in European history, including the Holocaust itself, and the presence of a couple of Schultzjuden in the administration does not make all Jewish people safe. But, more to the point, it’s dangerous to equate Zionism with Jewish interest, and it’s equally dangerous to equate any anti-Israel sentiment with antisemitism. Breitbart and other alt-right voices have their own, complex reasons for embracing Zionism, and they don’t include a deep love of the Jewish people. Similarly, Jews may not be primary targets but that doesn’t make white supremacists view them as white; recent bomb threats and grave desecration are evidence enough of that. And Ivanka might have her father’s ear, but that doesn’t stop him from obstreperously yelling at Jewish people instead of answering questions when asked directly about said bomb threats. This administration put out statements on Holocaust Remembrance Day that amounted to Holocaust denial. I think we can safely assume they aren’t out to learn from it.

Like it or not, Jewish people are not going to be viewed by a fascist America as acceptable — we know from World War II that in times of strife, we might not be outright attacked but nor do we get welcomed at the local country club. I remind you of an important factor in the Third Reich: that primary targets were not sole targets; though racially motivated genocide caused the deaths of millions of Jewish and Romani people, the Third Reich also went after Jehovah’s Witnesses, Communists, chronically disabled and sick people, homosexual people, political prisoners… this list goes on and on, too. Zionism does not make us loved. Islamophobia does not make us safe. The presence of a few protected Jewish individuals does not make us an us to people who make almost everyone a them.

In an ideal world, I would want my fellow American Jews to stand against this administration because it is the morally right thing to do; because we remember the six million and we mean it when we say never again. I would want us to unite under one intersectional banner because our fellow humans need us, and we’re not the primary target but we support those who are. This is certainly my personal philosophy, and I think it’s a good one. But if we can’t bring ourselves to embrace altruistic protection of fellow humans, we should at least acknowledge our true status, avoid the false comfort granted by a history of assimilation, and be thinking about saving our own skins. We need to be building coalitions, because there’s no real alternative party for us to join.

National News Roundup: Week 4 (February 12–18)

February 20, 2017October 21, 2019 Kara HurvitzLeave a comment

I’ve been corralling the news into neat little paragraphs for about a month now, and I’m here to tell you, this past week is definitely the weirdest week of news we’ve had yet. Seriously. Between Trump declaring war on the public press, Trudeau explaining quantum computers, Flynngate (or should that be Flynn-a-lago?), and the Russian sub spottings on the eastern coast, writing the recap this week feels a bit like playing Surrealist Bingo. And I didn’t even win anything.

The stock reminders: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. I may touch on news I think folks should know that is outside my area as a legal generalist, but if we undertake any offroad adventures I’ll do my best to signal that for you upfront by giving that headline an asterisk. Okay, warning label over. Onward to the news.

The Weird

Public Enemy Number 1: The Free Press. This week’s “I Wish I were Making this Up, What is Even Happening” award goes to Trump announcing that the free press is “the enemy of the American people.” And, in case anyone was still curious about whether Trump super hates the media enough to sincerely say this (spoiler: he does), White House chief of staff Reince Priebus thinks we should take him at his word on this one. I guess I need to add this to the Trump attacks on the First Amendment list.
Mar-A-Lago Pay-to-Parlay. By several accounts, in response to North Korea’s very real ballistic missile threat, our imminently sensible President took phone calls from the dining area at Mar-A-Lago, which maybe wasn’t the most secure location ever. Apparently at least one guest took a selfie with the aide carrying the nuclear football, which we know because the whole thing ended up on someone’s Facebook page. Disturbingly enough, this might not have even been the biggest security breach, because staff also were using cell phone flashlights that might contain spyware to review documents. So basically, if you can afford the $200,000 membership fee, you might get to hear state secrets? So that’s cool.
You Almost Sunk My Battleship!* Okay, not really. But a Russian spy sub was spotted off the coast of Connecticut this week. And Trump threatened to shoot it out of the water during Thursday’s press conference. So, you know, the title is nearly accurate. As well as terrifying.
Word Salad Fib Factory Press Conference. Trump held a spectacularly mind-numbing press conference on Thursday, ostensibly to announce Alexander Acosta as his replacement nomination for Puzder but in reality to complain and show off his impressive casual lying skills. (My favorite was the part where he said that drugs cost less than candy bars, showing he’s out of touch with both the war on drugs and enjoyment of American processed chocolate. Although the part where he told a Jewish reporter to sit down and shut up when the reporter tried to ask about the JCC bomb threats all over the country — because some of his favorite people are Jews and he got 306 electoral college votes — was a close second, if an encore of a previous presser performance.)
Trump Avoids Intelligence (in All Sense of the Term). Earlier this week, it came out that Sally Yates tried to warn Trump about the Flynn/Russian contacts issue several weeks ago. Which he ignored, because… reasons? This revelation, among others, began an intense will-they-won’t-they among Republicans in the Senate and the House about whether to further investigate the ties to Russia generally on this matter. Meanwhile, House Oversight Committee Chairman Jason Chaffetz has made it clear that he will not investigate unless someone drags him kicking and screaming, and chairman of the House Intelligence Committee Devin Nunes thinks the $64,000 question in all of this is why Flynn’s phone was tapped. Also, Trump thinks “the real story” is that his people are leaking like sieves, surprising no one. Also also, there’s been a huge back and forth about whether the intelligence community has started withholding information from Trump on purpose, due to concern that his administration is compromised.
Terminate the EPA Bill: Now with Text! Some summary text was added to H.R. 861, the bill introduced on February 3 to terminate the Environmental Protection Agency. The text is pretty much just clarifying exactly what’s on the tin: That it’s a bill to terminate the EPA effective December 31, 2018. There’s no reason to believe this bill will survive committee, but it’s completely bonkers that it even got introduced. The House has been hopped up on bonkers brew pretty much nonstop since beginning the current session, though, so I guess I shouldn’t be surprised by anything they do at this point.
Try to Guess Trump’s Position on Israel, I Dare You. Somehow, in the past week, Trump both rejected the two-state solution that American politicians have been embracing for decades, and still managed to tell Netanyahu to cool it on settlement progress, leaving literally no one happy with him or his approach to Middle Eastern conflict resolution. Despite this, he apparently remains confident that he’ll single-handedly create peace in the Middle East, armed with the power of MURRIKA.

The Bad

More on ICE. Several more ICE headlines happened this week; a DREAMer on the DACA list was picked up as a collateral arrest in one of the raids, and in Texas an alleged abuser tipped off ICE and got the undocumented survivor picked up halfway through the hearing for the restraining order against him. Also, numbers from last week’s raids have come out, and ICE picked up and detained an estimated 600 people total in one week.
Prosecutor, Recuse Thyself. Sessions is refusing to recuse himself on the Russian investigation, which he’s technically allowed to do (but it’s incredibly ill-advised and tacky). Democrats are putting increasing pressure on him, as the article notes, and we’ll see if it gets us anywhere.
The National Guard Shouldn’t Be This Scary. There was a leaked memo this week that discussed using the National Guard to round up undocumented immigrants in eleven states. The document was signed by Secretary Kelly, but the White House distanced itself from the memo (although it did say it might consider authorizing this kind of expansion in the future). Personally, I’m not convinced the entire thing wasn’t an intentional leak to terrorize immigrant populations, but either way, it sounds like we can put this particular rumor to rest for the moment.
Budget Woes (for Everyone But Trump). Trump’s incredibly petty and asinine plan to cut the budget for all relatively cheap things that bring people joy or safety in life saw forward movement this week, because Trump’s pick for budget director was confirmed by the senate. (And lest you think I’m being overly dramatic, things on the chopping block include Sesame Street, the National Endowment for the Arts, National Endowment for the Humanities, legal services funds, Violence Against Women grants, Americorps funds, and several other human interest streams of funding that individually make up 0.003% of the national budget or less.)
Ryancare, um …doesn’t. Republicans finally offered a policy brief of a plan to replace the Affordable Care Act this week, with Paul Ryan’s “A Better Way” proposal leading the charge, and surprise surprise, it leaves a lot of indigent people out in the cold as well as potentially revamping Medicaid itself. As expected, the plan outline places heavy emphasis on health savings accounts (which essentially require the participant to fund their own coverage, albeit tax-free); it also proposes use of tax credits by age instead of income (which many indigent people can’t use), federal financing for medicaid on a per capita basis, and a lot of provisions that essentially leave structure decisions to the states. It’s not an exaggeration to say that the plan more-or-less guts many of the intended purposes of the Affordable Care Act; it’s much more concerned with driving down government costs than treating healthcare as a basic necessity. And honestly, I don’t even see a lot of evidence that this will drive health care costs down generally; it just shifts who ultimately is responsible for them back onto the consumer. Speaking as someone who works with a department of a safety net hospital, I honestly felt gross reading the primary source linked above, and I recommend starting with the second link if you aren’t up for swallowing a bunch of Republican propaganda.
Autocratic State of the Nation. As always, here is the link to Amy Siskind’s weekly authoritarianism watch review. Some, but not all, of her work is reproduced here, and I recommend checking out her list.
Checking the Cabinet: Pruitt was confirmed as head of the Environmental Protection Agency, despite literally having suits against the agency pending right now (booooo). Mnuchin was confirmed by a narrow margin as well. As noted above, Mulvaney was confirmed as budget director. Bizarrely, I have no other bad cabinet news from this week, in large part because…

The Good

Puzder and Department of Labor NoTP: Apparently sufficiently few people wanted the Labor Department to be a gross, sexist extension of Hardee’s that Puzder withdrew his nomination this week. Trump ended up putting forward Alexander Acosta, a surprisingly competent and notably not-anti-labor choice, as his replacement nomination, which obviously has not yet been voted upon by committee.
Out Like Flynn. I know, I know, I used the same terrible play on words two weeks in a row. But I presumably will never do it again, because Flynn resigned this past week! Right after I sent out last week’s recap, annoyingly enough. There is a now a short list of three people Trump might call on to replace him, which no longer includes former General Petraeus.
A Day Without Immigrants. Restaurants in cities throughout the country shut down on Thursday to show denizens “a day without immigrants.” Though ultimately industry response to the protest was mixed, here in Boston a large number of restaurants put out statements in support of the movement.
Justin Trudeau Explains Quantum Computing. Arguably not really national news, but still worth the price of admission. Think of it as your reward for making it through this roundup, because you’ve now read all the news that was fit to print!

National News Roundup: Week 3 (February 5–11)

February 14, 2017October 21, 2019 Kara HurvitzLeave a comment

Some great stuff happened this week! Admittedly, also some not-so-great stuff. But all in all, there’s a lot more positive news this week than there have been in previous weeks, so I’ll take it! Also, I went a little overboard with the alliteration this week — sorry I’m not more sorry about that. The news is also a little late this week on account of a sinus infection laying me low yesterday, and that part I am sorry about.

As always, we start with the stock reminders: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. I may touch on news I think folks should know that is outside my area as a legal generalist, but if we undertake any offroad adventures I’ll do my best to signal that for you upfront by giving that headline an asterisk. Okay, warning label over. Onward to the news!

The Weird

Trump vs. the Media, Round ???: I’m already tired of saying “I can’’t believe I’m not making this up” when it comes to Trump and the media, but here we go again. First Trump famously claimed on Monday that the media was covering up terrorist attacks for their own gain. The White House then doubled down with a list of terrorist attacks that had been underreported, and about half the list involved zero deaths. The same day, incidentally, Trump also literally said that “any negative polls” about the immigration ban are “fake news.” White House official Sebastian Gorka followed up by explaining that “until the media understands how wrong it is [to “attack a duly elected President in the second week of his term”], we are going to continue to say, ‘fake news.’” In other words, “exercising your First Amendment right to critique our President now makes the President of the United States tell everybody on Twitter that you’re fake news.” Yup, that sure is a thing I had to write. Welcome to the Trump Administration.
Nordstrom (Accidentally) Takes On The World: The unfolding saga of Nordstrom, Ivanka Trump, and Half the Current Administration would be the stuff of soap operas, if soap operas were also running the country. I’ve already written some about it, but the very short version is that Nordstrom dropped Ivanka’s line of clothing and accessories and the Trump Machine was not happy about it. Oh, and also, Nordstrom’s stock climbed more than 4% afterwards, so make of that what you will.
Mitch McConnell Misstep: Mitch McConnell accidentally created a new liberal meme this past week when he cut short Elizabeth Warren’s reading of Coretta Scott King’s letter to Strom Thurmond during the Sessions debate. McConnell relied on a senate session rule regarding decorum towards senators to shut her down (though the letter was ultimately read into the record anyway by multiple male liberal counterparts). After being banned from the debate, Warren took to twitter, where she was quickly hailed as a feminist hero. I put this news in “the weird,” rather than either “the good” or “the bad,” because McConnell lionizing Warren like that was such a rookie mistake that I’m still scratching my head over it.
Ethics EO Evades Ethics Edict*: (Try saying that ten times fast!) Very early last week, Trump issued an EO about strengthening ethical commitments of executive branch employees. I put off discussing it because I wanted to check some anomalies I spotted when I compared it to Obama’s similar EO — it looked like it was giving lobbyists permission to immediately work in the executive branch, which to my knowledge had not been previously permissible, and also cited provisions I wasn’t familiar with. It turns out that I don’t need to look that up after all, because Pro Publica has helpfully laid all of it out for us this week. It’s an interesting insight into what is usually a dry topic, and I recommend checking it out!

The Bad

Papers Please: ICE conducted raids in at least six states this past week, creating checkpoints, entering homes, stopping at work places, and generally terrifying immigrant populations. The raids have already resulted in the detention of hundreds of people across the U.S. This is likely the beginning of enforcement of one of the President’s less focused-on executive orders, which largely targeted undocumented populations. I wrote a bit yesterday about the history of immigration raids under George W. Bush, and many immigration organizations have excellent reading materials on this topic.
Blue Lives Matter: Trump signed three executive orders this week, all relating back to crime or assault on police officers in some way. I plan to write more about them sometime this week, since they are all well within my wheelhouse — I had hoped to have this done before now, actually, but being ill derailed my plan to yesterday. At any rate, this administration would like you to know that they Value Law and Order and Blue Lives Matter. And a group of over 175 police chiefs and prosecutors would in turn like you to know that This Administration’s EOs Are Poorly Constructed (No, really; they issued a report and everything. It contains phrases like “antiquated law enforcement tools” and “risks wasting taxpayer money” and “law enforcement officers are not mental health or addiction professionals.” It’s surprisingly great, go read it.).
No Way In*: Yemen has withdrawn U.S. permission to run ground raids after last week’s botched attempt. It’s unclear whether this is tied to the immigration ban or not, because last week’s raid would presumably be reason enough all by itself. It’s also unclear what, if anything, the U.S. government will do with this information.
In (Hot Water) Like Flynn*: National security adviser Michael Flynn is in pretty hot water right now for discussing Obama’s sanctions with Russian ambassador Sergey Kislyak, which would be illegal although also hard to prosecute. For bonus funtimes, Flynn reported to Pence multiple times that he had not disclosed this information when meeting with Kislyak, which prompted Pence to report that the topic had not been discussed as well. Even worse, former acting A.G. Sally Yates apparently tried to warn the administration about this before she was dismissed, and it remains an open question whether anyone else (besides Pence, who everyone agrees was straight-up lied to) was in on this. No action has been taken by the administration to dismiss Flynn from his position, which doesn’t exactly help the administration’s credibility on this issue. In related news, CNN has also corroborated some of that infamous dossier, including some of the information that led to the sanctions in the first place.
Checking the Cabinet: There were some more Cabinet appointments this week, and none of them are what I would call “good for the agency involved.” Betsy DeVos just barely squeaked through her confirmation vote and is now our Secretary of Education, though Senators voted 50/50 and Pence had to cast the tie-breaking vote. Jeff Sessions was confirmed as Attorney General as well, though his vote was almost as close (at 52 to 47, and for those of you who are doing the math in your head right now, yes, that does mean that a Democrat voted for Sessions — Joe Manchin, from West Virginia.). Tom Price was confirmed as Secretary of Health and Human Services, also by a 52–47 vote.
Autocratic State of the Nation: As always, here is the Amy Siskind link to Your Week in Authoritarianism. Some, but not all, of her work is reproduced here. I recommend checking out her summary as well — she has a broader scope of political expertise than I do by far.

The Good

9th Circuit Showdown: The Ninth Circuit heard a challenge to the stay of the immigration ban this week, after the Justice Department challenged last week’s District Court order from Seattle, which granted a temporary restraining order enjoining the executive branch from enforcing the travel ban while the court decided its constitutionality. In response to the government filing its appeal, literally hundreds of people filed amicus briefs supporting the stay of the ban, including tech companies, law professors, diplomats, and national security officials. The Ninth Circuit unanimously decided to leave the stay in place, stating that the federal government had not made its case for a suspending the restraining order. Though the scope of the holding was narrow — it only applies to a procedural question about whether the TRO remains while the District Court decides the underlying case — it’s still extremely exciting to confirm that the ban will remain on hold for now.
The Road to Impeachment Begins with a Single Step: House Representative Jerrod Nadler filed a resolution of inquiry with the House Judiciary Committee this past week. It’s the first step toward an indictment by the House of Representatives, which in turn is the first step of the impeachment process. That said, it’s far from a guarantee of impeachment; it’s simply an attempt to get information from the executive branch so that people in the House can make an informed decision about whether to pursue things further. But the resolution needs to be acted upon within fourteen working days of when Nadler filed it, so hopefully we’ll know more within the next few weeks. In the meantime, feel free to do a little dance. I know I did.
Britain Debates the Donald: In an interesting and rare display of partisan opinion, the Speaker of the House of Commons has indicated that there will be a debate to decide whether Donald Trump will be allowed to address Parliament. The Speaker called this tradition “an earned right” and “not an automatic honor,” though Presidents Obama, Clinton, and Reagan all had the privilege of doing so on their visits to the UK. It will be interesting to see how this vote goes — I’ll keep y’all posted.

In the meantime, though, that’s all the news that’s fit to print this week!

Niños in New Bedford: Some (Almost) Brief Comments on This Week’s ICE Raids

February 12, 2017October 21, 2019 Kara HurvitzLeave a comment

Hi again, folks. I’m hoping to finish the news roundup later today, but first, I think we need to have a really difficult conversation about ICE raids and immigration. This isn’t going to be fun for anybody involved, and I’m sorry in advance. Were we speaking in person, I would take you out for ice cream after. (Consider this paragraph my virtual ice cream to you.)

The Background

I’ve seen a lot of people interacting with this article by the Washington Post, and also this article by the New York Times, to talk about an increase in ICE raids in at least six states in the country. It is a scary time, and there is a lot of evidence suggesting that immigration officials have stopped prioritizing people suspected of criminal activity in favor of simply rounding up every brown person who can’t produce papers fast enough. And we need to be talking about that, and planning, and responding.

But to understand the terror that these populations are experiencing, and to understand how to best organize and react, we also need to talk about the history of ICE raids in this country. The New York Times article includes quotes like “This is new” and describes people swept as demographics “that the government had not previous paid much attention to.” (And though the Washington Post article does eventually do a great job of describing enforcement patterns, they similarly lead by describing raids against people with no criminal record as “an apparent departure from similar enforcement waves during the Obama administration.”) These things are true, in the broadest sense of the term, because eventually the Department of Homeland Security did repeal Secure Communities in favor of a Priority Enforcement Program under President Obama. But that was in November 2014, six years into his presidency and only a couple of years before Secure Communities was put back in place with a vengeance last month. The reality is that many of these communities are afraid because they know what to expect. They have seen — and lived through — this before.

The Background Background

By way of example, let’s look at a local bogeyman here in MA: the New Bedford raids. These raids happened ten years ago — before I was settled in this area, or had even graduated law school — but I can tell you about them in excruciating detail anyway, because they are still talked about so often by both colleagues and the larger local community.

The New Bedford raids were part of a raid strike by ICE in 2006–2007, along with other, similar workplace raid efforts throughout the nation (such as ‘Operation Wagon Train,’ which resulted in raids throughout the midwest that swept up almost 2,000 people). These efforts were part of an upward trend in raids conducted by the National Fugitive Operations Program — by 2007, it had a budget of over $2M and was apprehending thousands of people per year, although it was pretty much failing in its official stated goals because only 9% of them were convicted of criminal charges. In many of these raids, people who ultimately coughed up documentation of legal status were detained for months and months before they could prove it. As far as I can tell, the New Bedford raid details were extremely representative of the contemporary national realities, which share a lot of similarities with those we face today.

In March 2007, over 300 ICE officials swarmed a single factory in New Bedford that was known for employing undocumented immigrants under sweatshop conditions. The officials simply split the entire factory into two groups: those who could produce documentation and those who couldn’t. About 362 people were arrested, detained, and mostly sent to Texas to await deportation proceedings; many of them were caregivers for small children who were U.S. citizens. ICE repeatedly kept the child and welfare department here from implementing efforts to assist these families, eventually prompting the governor of MA to call the entire thing “a humanitarian crisis.”

The story gained national attention, in large part due to the indiscriminate nature of the raid, the immediate transport of those detained across the country, and the documentation of extremely poor detention conditions. (It also eventually led to a lawsuit on behalf of the workers, which is a silver lining on this whole thing but also a whole other story). Literally hundreds of families were impacted, in a community that only has about 100,000 people total living in it. Other than some allegations about creating false IDs and hiring practices for two people who weren’t even swept up in the raid itself, the whole thing had absolutely nothing to do with criminal allegations; it was simply designed to show the force of Immigration and Customs Enforcement as a department. This is what people are afraid of: an over-funded, over-armed department that could swoop in, jail, and deport hundreds of people just trying to live their lives at any given moment. And they aren’t afraid because they don’t know what is going to happen to them; they are afraid because they do.

The Foreground

So why am I telling you all of this? And, more importantly, what do we do with all of it? Though I don’t claim to have all the answers to a difficult situation, I can at least provide some thoughts (and assure you that I’m not sharing human tragedy for the fun of it, while I’m at it). Here are some preliminary suggestions for how to put this information to good use:

Help concrete fears to lead to concrete planning. People are afraid of very specific things happening to them, because they have happened before, and that means they can also benefit from planning how to handle those specific things. A lot of advocacy communities right now have excellent resources for pre-raid planning and other forms of safety planning. Individual families have individual needs, and a lot of those needs are going to involve people’s safety; helping people organize their thoughts on those needs gives them agency as well as helping them logistically.
Don’t assume that “Know Your Rights” assistance will cover all immigration needs. A lot of folks can benefit from information about how to handle ICE presence, especially in situations like a single ICE officer showing up at your door. But a lot of folks do know their rights, and when it’s over 300 officers with a SWAT team at your workplace all of that can go out the window very easily, regardless. Helping people know their rights is a good start, but it is only a starting place.
Start from the presumption that ICE can, and ICE has, and ICE will, whenever you learn new information. This is an organization that historically has enjoyed a lot of backing, a lot of funding, and a lot of power. Its target demographic, in contrast, is one of the most vulnerable populations living in America. When hearing new stories, it’s always important to trust and verify, because scared people can create a rumor mill like nobody’s business. But in general, I recommend that you start from a presumption that ICE practices being reported probably are happening, instead of starting from a presumption that practices are being exaggerated.

We’re heading into dark times, folks — and unlike building a wall, or banning all refugees, this bit of immigration horror show is not uncharted waters. We have to expect to see smoother sailing.

Red, White, and First Amendment Blues

February 10, 2017October 21, 2019 Kara HurvitzLeave a comment

One of the most fascinating and rapidly evolving news stories this week involves Nordstrom dropping Ivanka Trump’s clothing line, citing poor sales as its reasoning. In case you missed this, here is more-or-less what happened: First it was a simple schadenfreude-laden headline, because the Trump dynasty loves selling things and also is historically bad at it. But the collective amusement turned into incredulous outrage when Trump censured Nordstrom’s from the POTUS account, in typical 45th fashion. Then we all watched a Spicer Double Down Special in yesterday’s press conference, when he referred to the business move as “a direct attack on [the President’s] policies.” And by the time Kellyanne Conway got around to literally advertising Ivanka’s product in her official capacity as a White House adviser today, nothing was surprising anymore.

I’ve seen a lot of people note Conway’s endorsement that was illegal (which it was), that this whole story illustrates Trump’s inherent conflict of interest (which it does), and also that Spicer apparently doesn’t know what the word ‘direct’ means (which he doesn’t). But I also think this is the latest in a larger picture issue, and I don’t hear a lot of people talking about it. And that issue is that this administration is launching a systemic assault on the First Amendment.

What does Trump’s conflict of interest have to do with the First Amendment?

I’m glad you ask, Hypothetical Person in My Head! The key is both Trump and his proxy Spicer censuring Nordstrom’s business decision. The groundwork was laid when Trump criticized Nordstrom’s business decision from the POTUS account, saying: “My daughter Ivanka has been treated so unfairly by @Nordstrom. . . . Terrible!” This is because a statement from an official account that something was “unfair” can be reasonably read to carry an implicit threat. But that idea wasn’t fully developed until Spicer said this in the press conference yesterday: “There are clearly efforts to undermine [Ivanka’s] name based on her father’s positions on particular policies that he’s taken. This is a direct attack on his policies.” And it’s when a business decision becomes an “attack” on Presidential policies that the larger picture about the First Amendment starts to take shape. As it happens, these statements taken together tread awfully close to Nordstrom’s right to freedom of speech — specifically its freedom of association and freedom of expressive conduct (And also its freedom to contract, but that’s a whole other ball of wax.).

A Brief First Amendment Primer

For those of you playing the home game, the First Amendment contains more-or-less five basic rights:

Freedom of the press;
Freedom of speech;
Freedom of religion (encompassing both the right to practice religion without government hindrance and the right to freedom from government laws “respecting a religious establishment”);
Freedom to petition; and
Freedom to peaceably assemble.

Though whole treatises could be (and have been) written on this topic, the main thing to take away for now is that the government generally cannot tread on these five things. That includes all branches of the federal government, not just Congress (which is what the First Amendment literally says), and thanks to the Fourteenth Amendment it includes state government as well. (Note that it does not, however, extend to that moderator on reddit who banned that one guy for using slurs, regardless of what that guy is yelling on 4chan.)

Okay, but One Tweet Isn’t an Attack

Good point, Other Hypothetical Person Also in My Head! But this is the part where I remind you that this wasn’t just one tweet in a vacuum — it’s just the latest part of a sustained, systemic effort. Let’s go through that list above, with an eye towards things this administration has done in the past as well as in the past few weeks, and see if they hit all of the First Amendment tickyboxes.

Freedom of the Press: Check. At this point, the 45th discrediting specific members of the press (and especially CNN) as “fake news” has become so commonplace that it’s a recurrent joke on Saturday Night Live. And that skit was hilarious, but it touches on a real phenomenon that’s pretty frightening: The idea that if you report displeasure with the President’s policies, you no longer get to count as real news. This is in addition to a growing rhetoric that the members of the fourth estate are enemies of the state generally, which is popping up in everything from serious allegations that the press is “refusing to cover” terrorist attacks to random statements attacking the “so-called media” over, of all things, reporting on a bathrobe. These statements, taken in tandem, paint a picture of this administration’s general desire to make Americans mistrust news in general.

Freedom of Speech: Check. I covered this one briefly above, but let’s spend a few more minutes on it. This administration has a long-established position of disliking First Amendment freedom of speech, which predates its assumption of office — from threatening to sue the people who stepped forward about sexual assault during his campaign to threatening to jail Hillary Clinton for telling ‘so many lies’ to threatening to remove citizenship for flag-burning. Since taking office, the administration has continued this trend, issuing a communications lockdown impeding executive government staff’s use of social media, demanding that park service officials retract tweets, and beginning to dismantle net neutrality. These actions, taken in tandem, suggest this administration wants people to fear speaking and relaying information freely in a variety of circumstances.

Freedom of Religion: Check. This administration has touched upon both the exercise clause and the establishment clause within the past few weeks. On the exercise end, mounting evidence is being considered by courts that the recent executive order is intended to curtail Muslim entry to the country due to specific Islamophobic animosity within the administration. On the establishment end, we have Trump threatening to dismantle the Johnson Amendment at the National Prayer Breakfast so that Christian organizations can participate more directly in politics, and promising to make persecuted Christians a political priority for immigration. None of this is a good sign, especially so early on in the Presidency.

Freedom to Petition: Check. This one is a more nebulous concept in some ways than the others, but the freedom to petition generally involves being able to talk to government directly about issues with governance. Political texts books often point to things like lobbying, letter-writing, e-mail campaigns, testifying before tribunals, filing lawsuits, supporting referenda, collecting signatures for ballot initiatives, peaceful protests, and picketing. It’s pretty closely tied to the freedom to assemble, which I’ll get to below. But things like shutting down the White House comment line, lying about the number of people who attended the Inauguration, the forcible follow of the POTUS account by 560,000 Twitter users, ignoring one of the most popular We the People petitions in history, and repeatedly attacking the judiciary branch all implicate the freedom to petition, and also all have happened in the past few weeks. Taken together, they suggest this administration wants to make it difficult for constituents as well as other branches of government to interact with its decisions.

Freedom to Assemble: Check. This right applies both to the right to protest and to the general right to associate with other people in things like unions. Though in general the Trump administration has been a bit cagey about this one, we do see early indications that we can expect future infringement of the right of assembly . Trump’s threat to cut federal funding over Berkeley protests is a mixed example at best, but his early description of protests as “unfair,” later description of Madonna’s statements at the Women’s March as “disgraceful to our country,” and more recent iterative rhetoric that protesters are being ‘paid’ all paint a larger picture that can be separated from the violence associated with the Berkeley news. And they come at a time when several state legislators are suggesting criminalizing protest. These things suggest a broader stance against protest generally.

Why does all of this matter?

It matters because the First Amendment collectively is an important check on centralized government process. The Founding Fathers knew this — the anti-federalists fought so hard for a Bill of Rights because they wanted to have a system in place that could slow the federalist machine and prevent it from steamrolling human rights. It’s not a coincidence that the First Amendment is, well, first.

And a natural extension of that is that a healthy enforcement of the Bill of Rights, and the First Amendment in particular, prevents a lot of the hallmarks of fascism from finding purchase (particularly the intertwining of government and religion, controlled mass media, suppression of labor power, and censorship of the arts). It’s a foundational part of American history, and one of the things that does, in fact, make America great. We’ve seen a lot of discussion about whether Trump’s administration is ushering in an era of fascism, and I personally believe that it is. In order for a nascent fascist state to take root in the United States, the Bill of Rights and especially the First Amendment (along with the Fourth, Fifth, Sixth, Eighth, and Tenth) need to be bludgeoned into submission. And we’re watching it happen, one tweet at a time.

What can we be doing? (Besides getting the 45th to stop tweeting. That isn’t going to happen.)

Okay, you raise a compelling counterpoint, Final Hypothetical Person, despite the noted disadvantage of not actually existing. But there are things we can be doing nonetheless!

Resist normalization of deviance. This is basically just a fancy sociological way of saying that there is real actual societal value in stamping “This Isn’t Normal” on your forehead and yelling it every time something infringes on a First Amendment right. On a related note, Amy Siskind recommends keeping a list of all of the things you notice changing around you — experts say this can be a very effective technique for resisting normalization. She keeps a weekly list herself, and you can read this past week’s here.
Continue to exercise your own rights, especially the last two. Protest things! Sign petitions! Call your senators and yell a lot! Obviously, this is easier for some people than others, but one very real way to preserve rights is to exercise them.
Keep track of the news. You can’t know your rights are being infringed if you aren’t paying attention — but more importantly, you also don’t know when your rights are being protected. The Ninth Circuit took a big step towards protecting freedom of religion today, though that fight is far from over, and that’s really helpful to know — it’s a form of petition being successfully preserved, at least so far.
Take care of yourself. It’s the best way to keep on fighting.

And on that note, I am going to take my own advice, and save writing about today’s three executive orders for tomorrow. Self-care, folks. It’s a thing. But you’ll hear from me again soon!

National News Roundup Week 2 (January 29-February 4)

February 6, 2017October 21, 2019 Kara HurvitzLeave a comment

Hello again, friends! Buckle in, because this has been a weird, long, confusing, roller coaster of a week even by last week’s standards. We are living in Interesting Times, distinguished guests, and trying to guess where we go from here is like trying to read Keurig machine herbal tea leaves, so your guess is as good as mine.

Some preliminary reminders before we take off, because a vague disclaimer is nobody’s friend: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. I may touch on news I think folks should know that is outside my area as a legal generalist, but if we undertake any offroad adventures I’ll do my best to signal that for you upfront by giving that headline an asterisk. Okay, warning label over. Onward to the news!

The Weird

Immigration Tug-of-war: Courts are Mostly Winning, Unless Maybe They Aren’t? The most important confusing thing to happen this week has been an ongoing battle of branches of government, occasionally with extra bonus infighting within the Executive Branch. Bear with me, because this is lengthy and confusing and I barely understand half of it despite studying law for a living: After Trump passed his extreme immigration executive order last Friday, federal judges around the country were happy to oblige the advocates launching into action. This resulted in holdings legally prohibiting first the practice of detaining lawful permanent residents, then the practice of denying detained people access to attorneys, and then ultimately almost all the provisions of the executive order. You would think that all of these holdings would make executive staff change their practices, and in some cases, you would be right; Homeland Security officially exempted lawful permanent residents after the first court holding. But in some cases, you would be fascinatingly, disturbingly wrong. Customs and Border Protections agents have continued to deny people access to attorneys (which eventually prompted the Virginia AG to file a motion to hold them in contempt, though the judge declined to grant it), and reports also began trickling in that CBP agents were coercing people to sign paperwork giving up their LPR status so that they could then be legally deported. This mixed posture can be partially explained by an apparent disagreement between Secretary Kelly and Steve Bannon, which thankfully did not end particularly well for Bannon, as well as some Department of State action that may or may not have been following the Executive pied piper. It was presumably not approved by Donald Trump himself, who largely handled this by tweeting about how the Seattle judge will be overturned (showing that he should give up his new career in fortunetelling, because the Ninth Circuit immediately proved him wrong). Oh, but he also did fire the acting Attorney General over all of this, after she declined to enforce the unlawful provisions of the Executive Order, saying that she “betrayed” the country over the (already found not to be lawful) “legal” order she didn’t enforce. So, you know. That’s happening. And will presumably be an ongoing saga for a while, especially if Trump’s continuous statements are any indication.
I Said Good Day, Mate! (and Other Phone Mishaps) Moving from the sublime to the ridiculous, apparently we hung up on Australia this week because Donald Trump did not appreciate Prime Minister Turnbull reminding him that the U.S. had agreed to take 1250 refugees from an Australian detention center. This is in addition to President Trump threatening to invade Mexico over the ‘bad hombres down there’ (which presumably would be kind of hard with that wall in the way). Senator McCain took point on damage control, though presumably after this week that will be a Tillerson duty.
Never Forget what We Cannot Remember (because It Never Happened): Kellyanne Conroy continued to model what ‘alternative facts’ look like this week, this time citing a non-existent massacre to justify an unpopular immigration ban executive order. She later called it ‘an honest mistake,’ showing that in addition to not knowing what the word ‘fact’ means, she also does not know what the word ‘honest’ means. But by this point, the Internet had already had a glorious meme party, so the damage was more-or-less done.
Grunkle Donny’s Regulation Emporium. Continuing the general theme of “what even is happening in this administration,” President Trump kicked off the week with an executive order about regulations that was a little… baffling, to say the least. The basic theme is that agencies now need to repeal two regulations for every new regulation issued, although there are a bunch of reasons why this regulation was mostly symbolic, which is presumably why he also signed another executive order later in the week (and that one was not weird, it was just bad, so it’s discussed below).
You’re Hired! (Maybe) True to his reality television roots, Donald Trump’s Supreme Court nomination was rolled out with a dramatic prime-time announcement on Tuesday. I’ve heard several people call the nominee, Neil Gorsuch, a Scalia clone, which appears about accurate — much like the late judge he would be replacing, this judge is socially conservative, an Originalist, protective of fourth Amendment search and seizure requirements, and, most shockingly for the Trump administration, an actual federal judge with basic qualifications. The Democratic party appears fairly split about how to handle this nomination, which seems to be something of a Xanatos gambit — either the Democrats boycott a la the Garland nomination, in which case Trump gets to nominate somebody way less palatable and qualified while bad-mouthing the Democratic base, or they play nice, in which case the Republican party has learned that sheer bloody-minded obstructionism lands them Supreme Court seats. Schumer has indicated that the Democrats might also take Secret Door #3 and filibuster the nomination, especially in light of Trump’s recent anti-Judiciary tweetfest — which was last tried (unsuccessfully) with the Alito nomination. So I guess there are plenty of potential not-so-great options.
The Betsy DeVos Heisenstate: In addition to being my Negativland cover band, this is as good a descriptor as any for the neck-and-neck scramble happening on DeVos’s nomination. DeVos barely squeaked through her committee vote this week, which landed 12–11 along party lines. The plot thickened when Susan Collins and Lisa Murkowski publicly announced that they would not support the DeVos nomination, bucking the expectation of a Republican party voting bloc. From there, it became a centrist Republican telethon free-for-all, with liberals calling all kind of Republican politicians looking for a third nay voter. If these efforts are unsuccessful, the Senate will be evenly split, which means the Vice President will cast a tie-breaking vote affirming — but if one more politician is persuaded to vote nay, DeVos will not be confirmed. This vote is scheduled to happen tomorrow, though it might be pushed back as far as Tuesday. So watch this space, I guess?
Rep Payee Proxy Debate: Speaking of confusing divides and strange bedfellows, both the NRA and disability rights groups celebrated a narrow House vote this week to repeal a measure involving gun background checks. The measure required Social Security to disclose when a person has a representative handling their money for them as part of the background checking process for gun purchase. The ACLU and other disability advocates disliked the measure because it exacerbated mental health diagnosis stigma, had no due process protection, and was overly broad, points which even the NRA respectfully raised.

The Bad

Nobody Likes Bannon’s Gross Seat*: Leading this week’s disturbing news is the fact that President Trump signed an presidential memorandum giving Steve Bannon a full seat on the National Security Council, a move which liberals and more centrist Republicans are describing with things like “radical,” “a profound shift,” and “stone cold crazy.” This is presumably because it’s a dramatic change from precedent — usually that seat is reserved for generals — and because it gives a confirmed white nationalist official authority over national security. House Democrats have already introduced a bill trying to kick him off.
It’s Hard Out Here for Goldman Sachs*: Also on the disturbing Presidential action front, Donald Trump signed an executive order authorizing a review of the Dodd-Frank regulatory body, a move that even a public sector attorney such as myself can tell is — and I’m going to use extremely technical terms here — probably not good. The provisions being reviewed were designed to curtail excessive risk-taking among “too big to fail” banks, and were passed in response to the Great Recession of 2008. Given Trump’s statements about intending to scale the entire provision back, this review is likely an opening salvo, though we’ll see if he manages to follow through with everything else also going on.
Checking the Cabinet: A flurry of Cabinet activity also happened this week, some of which honestly had to be seen to be believed. As mentioned above, Betsy DeVos received committee confirmation, as did Jeff Sessions (who was similarly split along party lines and is now similarly paused). Rick Perry and Ryan Zinke proceeded forward as well. Tillerson was confirmed as Secretary of State. When Democrats tried to boycott Price and Mnuchin’s committee votes, Republican committee members simply suspended the rules requiring a quorum and voted without them — so those two nominations are proceeding to full vote as well.
Violence in Quebec City (that is Likely America’s Fault) Six people were killed in a mosque in Quebec City this past week, in a fatal shooting that some American authorities are linking to similar violence in Texas. The Quebec government is investigating the tragedy as an act of terrorism.
JCC Bomb Threat Chicken, Round 3: Jewish community centers around the country got yet another round of bomb threats this past week, which makes three coordinated threat incidents in the past few weeks. Just like the other two rounds, the threats were later determined not to be credible, though Jewish organizations are working with the FBI.
Nineties Cartoon Villain Parade (Congress Edition)* In “I can’t believe I’m not making this up” news, a Republican representative from Florida has introduced a bill to terminate the Environmental Protection Agency. This comes on the heels of the House also voting to repeal a rule prohibiting coal companies from dumping waste into water sources. I never realized Captain Planet was a documentary, but I’m hoping to get my magical ring in the mail any day now.
Botched Yemen Raid Debrief* Among the tragedies of this week was a botched Yemen raid that killed 30 civilians, including an eight-year-old-girl who was an American citizen, and launched a military investigation. Trump apparently was not briefed in the Situation Room, and military personnel have suggested the mission was ill-advised because they went in compromised in their descriptions of what went wrong.
Authoritarian State of the Nation. Amy Siskind 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

(All) Boys Will Be Boys: In a rare bright spot of news this week, the Boy Scouts of America have announced they’ll be accepting transgender boys into their ranks for the first time in a century. As the article notes, this comes four years after accepting openly gay scouts and two years after accepting openly gay adult leaders. Progress!
Woah: The Merriam Webster Dictionary gave the ACLU a somewhat adorable spelling lesson this week, with some help from songwriter and genial pedant Jonathan Coulton.
Dressing Like a (Name-Taking) Woman: In response to leaked commentary about President Trump noting that he “likes the women who work for him to ‘dress like a woman,’” professional women all over the country responded by being awesome and photographing it. They captured sartorial choices from hospital scrubs to judicial robes to military fatigues to space suits to… basically everything that a woman might wear while kicking butt and taking names.
This Land is (Still) Your Land, This Land is (Still) My Land* A bill introduced by a Utah Congressman which would have authorized the sale of federal lands to private businesses got yanked this week, by the same congressman who originally introduced it. He explained this by noting, “I’m a proud gun owner, hunter and love our public lands . . . Groups I support and care about fear it sends the wrong message. I hear you and HR621 dies tomorrow.” …you know what, I’ll take it; at this point good news is good news.

And that’s it for this week — hopefully next week will be a little less interesting, though I’ll also accept “full of good news” as an option. Catch you all next Sunday, if not sooner!

Head-Fakes and Chore Charts

January 31, 2017October 21, 2019 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:

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.
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.
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.”
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.
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…

January 31, 2017October 21, 2019 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)

January 30, 2017October 21, 2019 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…

January 28, 2017October 21, 2019 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.