Category: Legal Analysis

Aurgh, Stop Saying That: Debunking the Anti-Immigration Greatest Hits

Kara HurvitzLeave a comment
“Internet Troll velu ill artlibre jnl,” by JNL (User created) [FAL], via Wikimedia Commons

(This is the zillionth installment of a series of articles unpacking the many horrifying immigration implications created by the Trump administration. 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.)

Hi there! If you’re reading this, you’ve either expressed an interest in learning more about common immigration myths in 2018, or somebody arguing with you on the Internet sure wishes you would. Either way, you’re here now! So while I’ve got your attention, let’s talk about how a lot of the most common far-right talking points are blatantly factually untrue, as well as being incredibly recurrent. Because let’s face it, life’s too short to have these arguments over and over.

Myth 1: “My grandparents came here legally; why don’t they just get in line like my grandparents did?”

This one’s always a fun one — for some reason, people who love to brag about how their Great Uncle Joe made a killing with his bathtub moonshine in the 1920s also love to talk about how the same Great Uncle Joe came here totally legally. And just for extra confusion, both of those facts are probably true!

This is because illegal immigration is a relatively new concept in our history, and did not exist two generations ago. Similarly, most people who stood in a line at Ellis Island would be considered undocumented immigrants today, and “the line” to enter — commonly understood these days to refer to family sponsorship, though there are a handful of other routes to lawful permanent residency — can be more than ten years long.

Myth 2: “Immigrants are criminals who hurt U.S. citizens.”

At the time that I write this list, this myth is making a big ole’ comeback because President Trump just aired a campaign ad that essentially writes it in neon letters. But as a point of order, immigrants commit crimes at lower rates than citizens as a general statistical rule. And this makes sense, because the risk of deportation created by getting caught up in the criminal justice system is a powerful deterrent. If you’ve got more to lose, you’re less likely to break laws; that’s just how human psychology works. Though people may like to claim otherwise, most immigrants — even most of those who are being deported in Trumpian America — have no criminal record.

Myth 3: “Okay, well, just being here is illegal, so they’re really all criminals as soon as they get here!”

This little gem comes up way too often for my taste, and we can probably thank the common practice of using the i-word as a noun for that. And it’s deeply obnoxious, because actually, just being here isn’t illegal.

It is true that illegal entry at the border is a misdemeanor crime — the first offense is punishable by a maximum of six months in jail; you can think of it as trespassing on the U.S.’s front lawn. But many people arrive in the United States with a legal immigration status and then overstay that status, leaving them undocumented without having ever committed a criminal act. They were invited in the front door, so it’s not trespassing, and our laws reflect that; this is a civil violation, not a crime.

Myth 4: “The Constitution doesn’t protect non-citizens.”

I honestly don’t know where we first got the xenophobic idea that the Constitution doesn’t apply to people who live here, because in addition to being wrong it just makes no freaking sense. But this myth has been coming up a lot anyway, especially as we grapple with Trump’s recent announcement that he wants to end birthright citizenship (but more on that below).

Both the Fifth and Fourteenth amendments apply due process to “persons,” which courts have interpreted to refer to all immigrants (including undocumented people). And while I’m on the subject, the same exact amendment outlines birthright citizenship, as well, so ending it wouldn’t be constitutional either.

Myth 5: “Asylum seekers enter illegally, so they deserve what they get at the border.”

I’ve had several fights about this one since we entered Caravan Rhetoric Country a week or two ago, and I don’t mind telling you, I’m tired of arguing about it. Seeking asylum is not illegal; it’s a human right that has been protected by international law for over sixty years. And in fact, it’s not even trespassing on the U.S. lawn when people just show up to claim it, because that’s how you’re supposed to seek asylum. There’s a reason for that; it’s designed to help people who will be badly hurt or killed if they return home, and in emergency situations, a person may have pretty limited ability to wait around for paperwork or even pack.

Because these people are fleeing an emergency, incidentally, it should go without saying that it’s poor form to send in 15,000 troops and give them instructions to shoot anyone who throws a rock. I’m beyond disgusted that I have to say it anyway.

Basically, asylum is the immigration equivalent of banging on a stranger’s door at 3AM when there’s someone with a Jason mask and a dripping knife on your heels— you didn’t call ahead, and you may have shown up at a weird time, because there’s a guy who wants to kill you right behind you. When someone shows up at our door in crisis, we don’t respond by shooting them. What, these rules are good enough for fictional people in horror movies but not for real people in real life?

Myth 6: “We’re the only country that someone comes in and has a baby and then that baby is a citizen.”

This one’s a relative newcomer, probably because it wasn’t a Greatest Hit until Trump made it one this past week. We’re definitely not the only country that does this; thirty-three different countries have birthright citizenship and several more have a conditional form of it. Those countries, by the way, include every single country in North America (and all but two in South America, for that matter). It’s not common among European countries, but we’re not in any way unusual for honoring birthright citizenship as a country in the Americas.

Myth 7: “Arresting and detaining everyone found crossing the border (the ’Zero Tolerance’ policy) is necessary because the Democrats passed a law requiring it in 1996.”

This one is kind of a Wrong Inception, in that it has many different layers of wrong happening at once. I wrote a whole essay about this already, but suffice to say: Nope, nope, and for extra measure, nope. First layer: It’s not necessary to arrest and detain everyone at the border, and CBP and police were only doing it because Sessions told them to. Second layer: Democrats never passed a law on this topic — it was codified by something called the Flores settlement, which was actually a court action, so no legislation exists on this at all. Third layer: The underlying cause of action began in the 1980s, when Reagan was President, so there wasn’t even a Dem President responsible for the original policy. Three strikes, please stop saying this.

Myth 8: “Immigrants take jobs away from citizens.”

Migrant workers tend to do jobs that U.S. citizens don’t want, and those jobs tend to be service jobs — while disappearing jobs in our modern economy tend to be manufacturing jobs. To this point, increased detention rates mean that some industries — again, mostly service industries — are having a tough time finding workers. This wouldn’t be true if native workers and migrant workers were truly interchangeable, because unemployed native workers would take those jobs.

Also, countless studies have shown that immigration leads to economic growth on a national scale, which means immigration ultimately creates more jobs for all markets. So instead of saying that immigrants are taking your jobs away, you should probably try thanking them for helping create economic stability. (Immigrants: They get the jobs done.)

Myth 9: “Immigrants just want a government handout.”

Most immigrants cannot qualify for most benefits for at least five years after arriving in the United States and living as lawful permanent residents, and undocumented immigrants cannot qualify for the vast majority of government benefits at all, ever, unless their status changes. And on top of those restrictions, this administration is making people afraid to lawfully access the benefits they are allowed to have, because it might have consequences for their immigration applications. This is probably one of many reasons why — as I noted above — immigrants tend to take jobs American citizens don’t want.

Note that this didn’t stop the Internet from claiming Trump ended government handouts for immigrants, but if that were actually true, wouldn’t that also mean that immigrants don’t get benefits? (Sometimes I don’t think people listen to their own arguments all the way through.)

Myth 10: “ Immigrants don’t pay taxes.”

Immigrants authorized to work are required to pay taxes; there is literally nothing about being a noncitizen that makes you exempt from paying. (Authorized workers also contribute to Social Security, in case anyone was curious.) There’s no evidence that authorized workers commit tax fraud with any greater frequency than the average population, and in fact since tax fraud has immigration consequences, it’s likely they commit tax fraud far less often than our sitting President.

But perhaps more to the point, undocumented workers can pay taxes under an Individual Tax Identification Number without having any legal status. As a result, many undocumented immigrants working under the table pay taxes and contribute to Social Security even though they’ll never see any benefits from it. This is sort of like the “taking our jobs” thing; actually, immigrants support citizens in this regard.

So there you have it! Ten myths, ten corrections, and hopefully we all learned something today. (I learned that it takes a looooong time to correct all the myths you see on the Internet.) I’ll be adding to it as we gain Greatest Hits, which I’m sure will continue to happen. Please feel free to link to this essay, take links from it, or otherwise use it in the Quest to Fight Propaganda. And good luck out there!

Zero Tolerance and Maximum Trauma: An Early Analysis of “Affording Congress an Opportunity to…

Kara HurvitzLeave a comment

(This is the zillionth installment of a series of articles unpacking the many horrifying immigration executive orders issued by the Trump administration. 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.)

So, Sessions announced a “zero tolerance” policy back in April, which he reiterated back in May, which has resulted in families being separated at the border en masse. The official estimate is that 1,995 kids have been separated from their parents since this policy was fully implemented in mid-May.

While this has been happening, Trump has, inexplicably, kept saying it was “the Democrats’ fault” and that we needed Congress to change the law if we didn’t like the policy.

This was very confusing until today, when Trump signed an Executive Order that clarifies his position. It’s still pretty confusing for the average person, particularly as everyone in the administration gives a slightly different story, so I’m writing this to help clear up what the heck is happening. The very short version is: yup, he’s right, he needs Congress or a federal court to act in order to get the policy in place he wants. And since it’s a thing he wants, your instinct that it’s probably awful is pretty spot-on.

A Bit of Background:

In order to fully understand what’s going on, it’s helpful to know what this executive order is referencing. So here’s a bit of backdrop:

  • Flores vs. Reno. This is a consent degree from 1997 that says that the federal government isn’t allowed to put kids in federal custody (read: jails) for more than 20 days total. It’s originally pertaining to unaccompanied minors, but as recently as last year it’s been applied to the practice of splitting up families, which was first held by the 9th Circuit in 2016. In short: The executive branch currently isn’t allowed to hold kids in detention long-term, because what is essentially a class action settlement agreement is standing in the way.
  • How Settlements Work. Settlements are basically contracts, which means they can be amended. (Perhaps some of you see where this is going.)
  • How Checks and Balances Work. As a general rule, Congress can respond to court decisions by passing legislation that clarifies existing laws, or resolves ambiguities interpreted by courts when there isn’t a law on the books. This is how criminal law statutes slowly replaced common law, and why things like mandatory minimums can exist — if there’s a law in place, the court doesn’t have blanket discretion. (Perhaps more of you see where this is going.)

Okay, have we got all of that? Cool, let’s get to today’s executive order.

…so what does this order do?

Here are the major highlights, and by ‘highlights’ I mean you will wish you were high while you read this:

  • Trump is trying to goad Congress into undoing the Flores settlement. The executive order literally says this in the name; and just in case you missed it, there’s this gem in the intro paragraph: “It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.” (emphasis mine.) In other words, “I didn’t want to stab this puppy, but then you made me do it, on account of you didn’t stop my hand fast enough when I tried to stab this puppy.”
  • Trump is also forcing Sessions to bug the courts about undoing the Flores settlement. This one is also right there in black and white: “The Attorney General shall promptly file a request with the U.S. District Court for the Central District of California to modify the Settlement Agreement in Flores v. Sessions, CV 85–4544 (“Flores settlement”).”(sic)(emphasis mine) So, basically, they know they can’t currently hold kids in jail indefinitely. But as is suggested by the end of that sentence (“in a manner that would permit the Secretary . . . to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”), they sure want to hold kids in jail indefinitely.
  • They aren’t going to wait for Flores to get ‘fixed’ before they enact this. And here we get to the real poisoned meat of this executive order, because once they’re done dissing Congress and explaining that why yes, they do mean to include asylum seekers (more on that below), the very next section is about how they’re gonna hold kids in prisons as long as they can. More specifically: “The Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.” This is a bit euphemistic, so I want to clarify: ‘maintain custody’ means the same thing as euphemisms like ‘in custody’; they’re talking about people being held in detention facilities. Which means that they’ll hold kids as long as it’s legal to do that, and if Flores gets ‘fixed’ that will be indefinitely. If Flores doesn’t get ‘fixed,’ well… kids may just have twenty days in prison before they get separated from their families.
  • This definitely applies to people who have committed no crimes. A careful read of the definitions section makes it clear that they’re also talking about people who arrive at proper checkpoints to seek asylum, and therefore haven’t illegally entered the United States. The definition covers people who “have not been admitted into . . . the United States . . . who entered this country at . . . designated ports of entry and who was detained.” It’s clear this isn’t an accident, because of that phrase I quoted earlier about the purpose of asking a court to amend the Flores settlement: “…to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.” (emphasis mine) In asylum cases, there’s no illegal entry, which means no criminal proceedings. They’re contemplating cases where there are no criminal proceedings in the wording of this order, and that means they’re contemplating people who haven’t broken any laws.
  • This also definitely permits families to be held in literal federal prisons. This doesn’t become clear until you get to the seemingly innocuous sections about the Secretary of Defense and the ‘heads of executive departments and agencies,’ which both just say that they have to ‘provide to the Secretary [of Homeland Security], upon request, any existing facilities available for the housing and care of alien families.’ Except ‘facility’ in this instance means ‘place you maintain where we can warehouse people,’ which for the Secretary of Defense means military bases, and y’all, the Federal Bureau of Prisons is an executive agency. So, for those of you out there who were clinging to the vague hope we weren’t really talking about putting infants in prison… nope, I’m so sorry, we’re literally talking about putting infants in prison.

Ugh. Where does that leave us?

Some things we do know for certain now: Whatever else happens, there’s no plan in place for reuniting the 2,300 kids already separated with their parents, who in some instances have already been deported while their kids remain behind. And if Kirstjen Nielsen leaves the Mexican restaurant long enough to listen to the order about her (which seems a safe bet), we’re definitely going to see families detained together for at least some window of time.

But it’s not clear whether this administration will separate families at the twenty-day mark, leaving us with family separation and traumatized inmate children, or argue that a pending case means Sessions is allowed to ignore Flores and just keep them there indefinitely, or what. The uncomfortable and honest answer is that we’ll have to see what every actor in this terrible play does next — Sessions will probably file with a federal court; Congress will probably not pass a plan that allows kids to sit in prisons long-term; and Trump will probably continue to say everything is the fault of Democrats everywhere. And we’ll have to keep an eye on all of it so that we can be responding in real time. And engage in self-care and keep an eye on each other, too, because this stuff is grueling and we’re only gonna get through this if we do it together.

Drive-By Analysis of The Masterpiece Cakeshop Case

Kara HurvitzLeave a comment

I’ve seen a lot of people confused about what the Masterpiece Cakeshop decision means, and it’s fair that it’s confusing to people — the Court ruled for the bakery, except they really didn’t, except it does actually create some problems for same-sex couples. I’m doing a drive-by analysis to try to clear things up, and will incorporate notes from the remaining two concurrences and the dissent once I’m able. (But as you can imagine, between this and the Jane Doe case this was a busy day at work, so Today is Not That Day!) If you’re super short on time, here’s the tl; dr version: It doesn’t create license to discriminate, but that doesn’t mean there are no consequences for LGBTA people after today’s ruling.

Main holding:

“When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. . . . [T]he Commission’s actions here violated the Free Exercise Clause, and its order must be set aside.” (taken from page 3 of the opinion, for those playing the home game)

So what does that actually mean?

It means the the Colorado Civil Rights Commission done messed up by being openly contemptuous of religion.

Okay, why?

Because the Free Exercise Clause and Establishment Clause of the Constitution collectively say that the state can’t be openly for or against any particular religion. So the Commission took it a step too far when one of its members invoked the Holocaust and slavery to say that “one of the most despicable pieces of rhetoric that people [like the cake guy] can use [is] to use their religion to hurt others.” (quote from page 14)

So it didn’t say that people can discriminate against LGBT folks by saying it’s their religion?

The court tried to punt that entire question by doing things that made it hard to use this case for anything else. They hung their hat on some stuff that definitely can’t be used again:

  • They stressed that Obergefell (the case that legalized same-sex marriage throughout the country) hadn’t happened yet, and said that this gave the cake shop a reasonable expectation of the legality of their actions that obviously wouldn’t exist moving forward. (p. 11)
  • They focused almost exclusively on what the Commission did, rather than what the cake shop owner did, which means that it’s harder for future business owners to say that the opinion applies to them. (pages 13–18)
  • They literally said in the opinion that this was what they were doing: “Any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose serious stigma on gay persons.” (emphasis mine)(p. 12)
  • And just in case that was misconstrued: “The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws.” (emphasis mine)(p. 3)
  • And just in case that was misconstrued: “While . . . religious and philosophical rights are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” (p. 10)

So this can’t be used to hurt LGBTA people further down the pike?

Unfortunately, I don’t think that’s true either. Though the court was, for the most part, pretty good about narrowing the scope of what they were saying, as I noted above they touched upon equal access for protected classes (and that part is good). But then the court focused on what they described as the Commission’s “disparity in treatment” between offensive-because-discriminatory products (i.e. cakes that demean gay people), which they generally permitted owners to refuse, and offensive-because-of-religion products (i.e. a wedding cake for a gay couple), which the Commission did not permit this owner to refuse. They conclude that the discrepancy signals an “official disapproval” of the guy’s religious beliefs, and therefore hostility towards him. (pages 15, 16–17)

I personally think this is not only legally wrong, but dangerously legally wrong, because Equal Protection analysis is only supposed to apply to protected classes. LGBTA people are likely a protected class under the line of precedent started by Romer v. Evans and continued by Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges. But people who want to get to discriminate against them definitely aren’t, at least not on the basis of that desire to discriminate. So it was actually appropriate for the Commission to distinguish between the rights of people who are a protected class — i.e. same-sex couples — and the right of a person who wants to practice religion, because Christians, as a majority population, aren’t a protected class. Although I do agree with the Court that comparing the cake situation to the Holocaust was perhaps a bit much under the Free Exercise clause, so it’s less that it was decided wrong and more that the court left a hole big enough for malicious people to drive a truck through.

The way this opinion was written, specifically regarding the “disparate treatment” idea, opens up the door for harassing litigation brought by anti-gay groups with too much money and time on their hands. (Lambda Legal wasted no time in noting this, which I appreciate.) So malicious actors now can force courts to hear cases implicitly or explicitly arguing that they are being discriminated against if equal protection analysis is properly applied. Which is decidedly Not Awesome.

Is what you just said the same as what Justice Kagan said in her concurrence?

Effectively, yes — or at least, she said that the Commission properly distinguished between the gay-people-are-bad cakes analysis and the wedding cake analysis. Her logic was slightly different — she said that the bakers would refuse to sell a bigoted cake to anybody, and the Masterpiece Cakeshop guy specifically refused to sell a wedding cake, which he would sell to a straight couple, to a same-sex couple. So the discrimination was on the basis of the product in the first instance, which is allowed under public accommodations law, and the discrimination was on the basis of the consumer in the second instance, which isn’t allowed. And as part of that analysis, Kagan noted that “a vendor cannot escape a public accommodations law because he religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait” (emphasis mine)(page 4). But since it was in a concurrence, that part isn’t controlling legal precedent; the part that says the opposite in the majority opinion is.

So where does this leave us?

Vigilant and awaiting more nonsense litigation, but with intact legal rights at the moment, I think is the honest answer. It’s not a great decision, and I wish the Supreme Court hadn’t heard the Masterpiece Cakeshop case at all, but the ACLU is correct that it’s also not a license to discriminate. All told, this could have been much, much worse — but that doesn’t mean it was harmless.

Marjory Stoneman Douglas and Dorothea Dix: Unpacking Mental Health and Mass Shootings

Kara HurvitzLeave a comment
By Coral Springs Talk from Coral Springs, United States (Rally at Marjory Stoneman Douglas High) [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

There was yet another horrendous school shooting in Parkland, Florida this week, and the country has begun our by-now-traditional cycle of arguing and politicians offering thoughts and prayers and nothing changing. You see, whenever a mass shooting shooting, in the immediate aftermath most citizen responses fall into one of three categories:

  1. Expressions of sympathy, horror, and shock relating to the nature of the tragedy;
  2. Calls for (and responses to calls for) tighter gun control; and
  3. Discussion surrounding the gunman’s mental health, access to mental health services generally, and rates of violence perpetuated by and experienced by people suffering from mental health issues

It would be inappropriate for me to comment on the first type of discussion, except to say that I am sympathetic, horrified, and saddened by the tragedy as well. And though I have many opinions about the second— I did work nearly five years at a public defender office in one of the most gun-control-loving states in our country — that’s another article for another day. As your Friendly Resident Clinician-Trained Advocate, I’m here today to talk about the third topic–because I’ve been writing about it for years, and it would appear that this issue has reached Craig Ferguson o’clock. If you’re in a hurry and want to know my point upfront, here it is: Most people with mental health issues don’t shoot people, and we have no way of knowing whether better access to treatment would have prevented this tragedy, but we should have better access to mental health treatment anyway.

Are you still with me? Okay, good, because we need to spend a few minutes talking about what ‘mental health issues’ even means.

(This is an important point, because as it happens it’s not universal, and this impacts conversations on the topic something fierce.)

The most commonly accepted (though not universally accepted) definitive text for what constitutes ‘mental illness’ is the Diagnostic and Statistical Manual of Mental Disorders. We’re currently all using the fifth edition, which was published in the spring of 2013. The DSM uses a code system in order to assist physicians and healthcare professionals with providing diagnoses. These codes exist for literally hundreds of distinct disorders, covering everything from mood- and anxiety-based disorders to pervasive developmental disorders to substance-related disorders to psychotic disorders to intellectual disability to personality disorders.

Symptoms of these disorders vary wildly, and it is straight-up medical malpractice to prescribe the same treatment for every disorder. In fact, not every mental health professional is even allowed to diagnose every single disorder on this list–some disorders (like, for example, Autistic Disorder) require screening by a neurologist. About one in five American adults has a diagnosable mental health issue, and these disorders impact every known demographic in this country (though some disorders are known to disproportionately affect populations above or below a certain age, and diagnosis for some, like personality disorders, is contraindicated before a person turns 18).

[Thus concludes the lecture section of this presentation. For now.]

‘Why are we talking about definitions here?’ I hear you ask.

I note all of this because it all adds up to mean that there is no one individual thing that every single person struggling with mental illness says or does in this country. This is a big deal, and it has to be where we begin this kind of discussion, because it means that almost from the very first words of a discussion on Facebook, twitter, or elsewhere many people are talking past each other.

I have heard many people mention recent studies on twitter and Facebook that show that people struggling with mental health issues are actually more likely than the average population to be the victims of violence. These studies reflect a common sense understanding that people who suffer from mental health issues may experience prejudice, discrimination, and vulnerabilities that are not shared by the general population. (There are also many studies linking mental health issues to penal populations, where people with some types of diagnoses may be particularly exposed and vulnerable, but I’ll get to that in just a moment.)

Yet, some people who commit atrocities, apparently including Nikolas Cruz, suffer from mental health issues; this is undeniable fact. Common sense (correctly) tells us that people who ingest substances that create an altered state of consciousness may also experience changes in their insight, perception, and judgment, all of which can lead to violent exchanges. Many (though certainly not all!) people who experience psychotic symptoms, when combined with paranoia, can see and hear things that are not there which cause them fear, and frightened people can sometimes engage in violence. This does happen, though it does not seem to be what happened at Parkland. This is why we, as a culture, have created a ‘not guilty by reason of insanity’ verdict for criminal trials over time–we understand that crime and mental illness may be linked and may affect culpability.

The important point here is that people who discuss violence and mental illness with regards to perpetration and people who discuss violence and mental illness with regards to victimization are both right, and it’s because for all practical reasons there are as many different kinds of people who suffer from mental health issues as there are kinds of people generally within the US. Saying “people with mental illness commit violent crimes” is about as useful as saying “people born with thumbs commit violent crimes.” You were born with at least one thumb, right? Have you used a gun for mass murder lately? Yeah, that’s what I thought.

[With much apologies to anyone out there reading this who was born with thumb aplasia–keep fighting the good fight, my friends.]

So having discussed the concept of mental health generally, there is an obvious corollary question as it pertains to any mass shooting tragedy, but particularly one like our most recent:

Why do I hear people talking about access to mental health treatment like it is going to fix this type of issue?

Access to services and insurance coverage for mental health is is a very big, very long discussion, and one I have written many, many pages about over many years of study. I will try to spare you the treatise and give you a Cliff’s Notes version. But first, I’m afraid there will need to be a history lesson.

[I did warn you that the lecture would resume at some point…]

At one point in time, mental health treatment in this country really was like something out of a horror story; there are numerous accounts of people being kept in dark places, chained to walls, lobotomized, and electrocuted, and otherwise just horribly mistreated. Much of the early reform for treatment of people struggled with mental health issues is credited to Dorothea Dix, an activist from the mid-1800s who remains something of a personal hero to me (even if many of her efforts were later subverted). Once we made the transition from chaining people in basements to creating and maintaining asylums, hospitalization remained the way that we as a country handled serious mental health issues for many decades.

[Arkham residents not pictured.]

Sometime around the 1970s, however, people began to heavily question the practice of institutionalizing people with mental health issues, largely because the thing doctors were noticing about putting people away for long periods of time is that they never seemed to really get better (though there were also administrative costs and a very famous study involved). There was a push to start initiating community-based care in clinics and comparable outpatient organizations–which is a model we still somewhat use today in this country to address issues of mental health.

The thing is, in some ways deinstitutionalization could not have happened at a worse time. You see, the push for deinstitutionalization happened largely in the 1960s and 1970s, which was a time when we were making changes to how health insurance worked in this country as well. And mental health coverage is, among other things, often incredibly expensive, even at the outpatient level. So this ultimately culminated in fewer community health options and more restricted insurance coverage for many people with mental health issues. In other words: People weren’t accessing treatment at the rates they should, because there were fewer places to get it and also it cost more. That’s still true today; less than half of people living with a mental health condition in this country receive evidence-based treatment for their conditions.

Around the time that deinstitutionalization began to reach its peak, people began to notice a disturbing trend about the interaction between mental health and prison systems: the percentage of inmates with mental health issues was going way up. Multiple recent studies have shown that prison populations now contain much higher rates of mental health issues than the general population.

Picture by By https://kazan.vperemen.com/ (Own work) CC BY-SA 4.0 via Wikimedia Commons

An honest and frank discussion about mental health issues in this country would be remiss if it did not also at least touch upon the plethora of other confounding and complicating factors about access to treatment (such as homelessness, incarceration, and autonomy in healthcare decisions, to name a few). But many people believe that fixing these difficulties in accessing services will drive crime rates down, and I think they are right–up to a point. Certainly the number of crimes that are committed due to untreated symptoms will decrease, and I firmly believe that a more streamlined substance abuse recovery system would make a huge impact as well. For these reasons, and because I believe that the American criminal justice system is a grossly inappropriate institution to rely on for mental health treatment, I am a huge proponent of increasing access to mental health treatment in this country.

…which brings us back to Nikolas Cruz. This section is the hardest section of this series to write, because it gets at the real heart of the discussion: How does access to mental health treatment affect tragedies like the one that happened at Marjory Stoneman Douglas High School in Parkland, Florida?

Much has already been written about Nikolas Cruz’s extensively-documented history of mental health issues, telling us that he was diagnosed with ADHD, depression, and “developmental and learning disabilities.” Given what I have read, if one of those “developmental disabilities” wasn’t conduct disorder, I will eat my hat. You see, there’s no noted correlation between ADHD and mass shootings — in fact, most of the main features of ADHD (disorganization, distractedness, inattention, forgetfulness, to name a few) don’t lend themselves to premeditated action at all. And the connection between depression and premeditated murder is attenuated at best. But …well, let’s talk about the diagnostic symptoms of conduct disorder, the adolescent precursor to Antisocial Personality Disorder (which cannot be diagnosed before age 18). I have bolded the things we see reported in the news as part of Cruz’s personal history before the Parkland shooting:

“A) A repetitive and persistent pattern of behavior in which the basic rights of others or major age-appropriate societal norms or rules are violated, as manifested by the presence of at least three of the following . . . criteria in the past 12 months from any of the categories below, with at least one criterion present in the past 6 months:

  1. Aggression to People and Animals
  2. Destruction of Property
  3. Deceitfulness or Theft
  4. Serious Violations of Rules

(The remaining diagnostic criteria relate to age, distinguishing from Antisocial Personality Disorder, and absence of signs of other disorders. He probably met the criteria for APD as well, though it would appear no one had diagnosed him with it; you can read those criteria here. The disorder also can occur with or without ‘limited prosocial emotions,’ which is a fancy way of saying ‘this person doesn’t appear to have normal levels of concern or empathy for other humans.’)

As this list suggests, conduct disorder is noteworthy because potential symptoms are disregard for social norms, aggression, destructive tendencies, and a lack of showing of empathy for other people. In other words, the very things that might cause someone to commit this kind of atrocity are potentially enough to diagnose someone with a mental health disorder in the DSM.

(I want to be very clear that diagnoses such as conduct disorder or antisocial personality disorder are by no means a guarantee that someone will commit this kind of atrocity; a person who frequently skips school and then lies about it can be slapped with the same exact diagnosis. As with so many things, it’s a question of severity and also a subjective assessment on the clinician’s part.)

APD Exhibit A: Nikolas Cruz. APD Exhibit B: This guy.

Diagnoses like conduct disorder and antisocial personality disorder are controversial, because some people believe they merely convert criminal behavior into a mental health issue. And antisocial diagnoses are notoriously resistant to treatment, though I personally believe they can be treated in some instances and it is my sincere hope that we identify more effective treatment for these diagnoses soon.

Would access to mental health treatment have prevented this tragedy? It’s tough to say; as a few articles have noted, Florida’s track record of access to treatment is abysmal, and studies show that adequate treatment can definitely reduce instances of violence in general. And perhaps more to the point, Cruz should have had access to treatment because we should live in a country where people receive reasonable evidence-based treatment for their health issues. But on the other hand, we don’t actually have evidence-based practices for treating antisocial issues like conduct disorder, and Cruz’s personal history is a ticky-box nightmare — in particular, there is a long-documented correlation between zoosadism and premeditated murder, and those studies I just mentioned weren’t about premeditated violence; they were about violence generally (and often impulsive violence at that). Treatment — for his documented diagnoses or otherwise — might have prevented this, but it also might not have. And we can’t know, because he didn’t get access to treatment, and then this tragedy happened, and we can’t take it back again.

Access to mental health treatment is a very important issue to me, and I will continue to advocate vociferously for better access to care and services until the day I die. As the first two sections of this series suggest, I do believe that it is incredibly important that we address this issue, for reasons of public safety and humane social welfare. But it is not a panacea, and it is disingenuous and dangerous to discuss the issue as if it were. The fact of the matter is, none of us can know whether it would have helped in this instance. We should have better access to treatment because our entire society benefits from better access to treatment, and it shouldn’t take a horrendous tragedy like this to discuss it.

Didn’t We Do This Already? An Early Analysis of the Replacement “Travel Ban” Executive Order

Kara HurvitzLeave a comment

(This is the umpteenth installment of a series of articles unpacking the many executive orders issued by the Trump administration. Click here to read the installment on this order’s predecessor, issued in late January. 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.)

Hello from my lunch break! The administration put out a new version of January’s “travel ban” executive order yesterday, as well as a fact sheet that reads more like a form template responding to expected interrogatories than anything else. To save you some antacid, and because I’m preparing summaries on this topic anyway, I figured I’d let you know what has changed and what has stayed the same.

Same Garbage, Different Day…

Here are the provisions that look exactly the same, in all their still-terrible splendor:

  • Three Months without Travel. There is still a three-month travel ban for nonimmigrants from six Middle Eastern countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen). You’ll note this is one fewer than the old one, and more about that below.
  • Refugees Still Not Welcome. There is still a four-month cessation of refugee acceptance from all countries. It’s still unprecedented and longer than the one after 9/11, and they are still limiting refugee entry in fiscal year 2017 to 50,000 (which is less than half the amount set by the Obama Administration for the year).
  • Fuhrer Exception Still in Place. You can still get an exception to the ban for “the national interest,” which is just as vague as it was the first time.
  • Fingerprints and Photographs. The enhanced screening, including biometric screening on entry and exit, is still in place.

…But they added some Febreeze to mask the stench.

Here are the major changes made in the new version, which make it slightly more palatable but don’t change the biggest underpinnings:

  • Six is the New Magic Number. Iraq is no longer included in the list of countries banned from entry. They explain this in the executive order, in way more detail than you probably care to read, but it basically comes down to saying that Iraq is a “special case.”
  • There’s a Set Start Date. The new provisions go into effect March 16, which is presumably as much to avoid an embarrassing repeat of January’s confusion as anything else.
  • Syria No Longer Singled Out. There’s no indefinite prohibition of Syrian refugees, who presumably can reapply with everybody else after the four-month window passes. Unofficially, there may still be a prohibition in place for most refugees until FY 2018, though, because we had already cleared half the new 50,000 cap set for FY 2017 by December 2016.
  • Legal Status Apparently Means Something Again. Folks who have U.S. citizenship, lawful permanent residence, or a previously-issued legal visa now are supposed to be exempt from enforcement (though, of course, it remains to be seen if CBP will comply with the provision).
  • “Religious persecution” priority has been removed. There’s nothing to say this won’t still happen unofficially, but it’s no longer an explicit part of the executive order.

For more reading on this topic, I recommend this article put out by the New York Times, which contains a good compare-and-contrast summary. And on that note, it’s back to the law mines for me. I’m hoping to draft another essay about detainee free labor in the near future though, so watch this space.

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

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:

  1. 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.
  2. 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.
  3. 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

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:

  1. Freedom of the press;
  2. Freedom of speech;
  3. 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”);
  4. Freedom to petition; and
  5. 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!

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

Kara HurvitzLeave a comment

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

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

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

Can you just tell us what this thing says?

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

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

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

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

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

Okay… why did he do this?

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

But would this theoretically actually work to lower our deficit?

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

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

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

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

Kara HurvitzLeave a comment

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

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

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

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

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

o The creation of a database of identity documents;

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

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

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

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

Some reality-checking about these policies:

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

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

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

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

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

Kara HurvitzLeave a comment

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

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

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

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

Some of the provisions, however, are very different:

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

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

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

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

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

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

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

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

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

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

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

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