Monday, November 6, 2017

Michael C. Dorf: Constitutional Law and a Need For Clarity on Complicity Claims

The Troublingly Widening Gyre of Complicity Claims

Michael C. Dorf, November 1, 2017
Michael C. Dorf
Thomas Jefferson was the chief author of the Virginia Statute for Religious Freedom, which James Madison guided through the state legislature. It served as a model for the First Amendment of the US Constitution and contains the following declaration: “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” That principle has played an important role in the interpretation of the Establishment Clause and similar state provisions restricting government aid to religion.
Lately, however, Jefferson’s principle has run amok, as individuals and entities make increasingly demanding claims on the ground that they do not wish to support, or be seen to support, or even to feel as though they are supporting, activities of which they disapprove. The trend reached its apotheosis—or, understood in proper perspective, its nadir—last week, when lawyers for the Department of Justice argued that they should be permitted to hold a seventeen-year-old undocumented immigrant in custody rather than temporarily release her to obtain an abortion at private expense, because releasing her, they claimed, would render the federal government “complicit” in her abortion.
As I shall explain, the government’s argument was wrong, and thus the US Court of Appeals for the DC Circuit, sitting en banc, rightly rejected it. But it was only a small stretch beyond already-over-extended complicity arguments that the Supreme Court has accepted in cases involving union dues and contraception insurance and which the high Court may be ready to extend even further in a pending case involving a baker.
Jane Doe’s Abortion
A seventeen-year-old undocumented immigrant in federal custody discovered she was pregnant and sought an abortion. She managed to comply with Texas state law to obtain a court order entitling her to one. But the federal government—which under Attorney General Sessions and President Trump implacably opposes abortion—balked. Although the federal government was willing to take the girl to a so-called crisis pregnancy center for anti-abortion counseling, it was not willing to permit other people to transport her to have an abortion. Even that minimal level of non-involvement was too much involvement in the girl’s abortion, the oh-so-scrupulous government asserted.
To be sure, a long line of cases makes clear that the federal government need not subsidize abortion, but that is not because the government has rights of conscience in the same way that individuals do. It’s because, with very few exceptions, the Constitution protects negative rights—that is, rights against government interference—rather than positive rights—that is, rights to affirmative government assistance. And given the private funding, there was no serious contention that the government was being asked to fund an abortion.
But let us assume that the government does have rights of conscience. Perhaps the government is the repository for the rights of conscience of the majority (or in the case of President Trump, the minority) of voters who chose the government. Even so, that would at most entail a governmental right not to facilitate abortion or other practices to which the government objects. One would still need to limit this principle, because a too-broad definition of “facilitation” would convert every objectionable private exercise of rights into government participation. And that, in turn, would be the end of rights. In the name of not facilitating objectionable conduct, the government would be effectively forbidding that conduct.
Which is more or less the position the government took in the immigration abortion case. If merely not restraining someone of her liberty amounts to government facilitation of whatever someone chooses to do with that liberty, then there is no liberty.
The Contraception Mandate Litigation
Where did the government lawyers get the idea that their complicity argument was even plausible? Unfortunately, they seem to have gotten it from the Supreme Court.
In order to accommodate religious objections, the Obama administration exempted churches and other religious organizations from the obligation under the Affordable Care Act and its implementing regulations to provide employees with health insurance that covers contraception. That was not good enough for some plaintiffs, however, and in the Hobby Lobby case, the Supreme Court ruled that the Religious Freedom Restoration Act entitled for-profit corporations whose owners object to particular contraceptive methods to opt out of the contraception insurance mandate.
Although the Hobby Lobby ruling was controversial, at least it involved a relatively tractable view of complicity. The members of the Green family who own the Hobby Lobby chain of stores felt that they would be implicated in the employer-based health insurance that their employees obtained.
Yet in the wake of Hobby Lobby, the courts were flooded by a new kind of complaint: Religious entities that were already entitled to an exemptionfrom the contraception mandate complaining that they should not have to fill out the form asking for the exemption, because the act of doing so would itself implicate them in the contraception insurance that women would then receive from other sources.
That claim is preposterous—and I say that even though I am willing, for the sake of argument, to fully credit the view that participating in the provision of contraception insurance is a great evil.
Suppose that I, as an ethical vegan, do not wish to facilitate the consumption of animal products by others (as I most assuredly do not). It would be understandable for me to ask my boss to excuse me from, say, cooking and serving cheeseburgers at a company picnic. It would be absurd for me to complain that my boss should not make me ask to be exempt from such a duty, because when I ask, that will result in somebody else serving the cheeseburgers, which will implicate me. Even if that is actually how I feel, and even if I regard the raising, exploitation, and slaughter of cows and steers to make cheeseburgers as immoral (which I do), a definition of complicity that goes this far is unworkable.
And yet, while not ultimately reaching the merits of an objection to the opt-out mechanism under the contraception mandate closely analogous to the scenario I have just described, in 2016 the Supreme Court took it seriously enough to supervise what was effectively a settlement agreement among the parties. Seeing how far the Obama administration was required to go in response to an extravagant culpability claim may have emboldened the Trump administration to make its own extravagant culpability claim in the immigration abortion case.
Bakers, Florists, and Other “Artists”
Against this backdrop, the claim of Masterpiece Cakeshop in the free speech case currently before the Supreme Court seems almost rock-solid. The owner of a Colorado bakery refused to bake a cake to celebrate a same-sex union on the ground that doing so would engage his “artistry” for a message—that same-sex marriage warrants celebration—of which he disapproves. Whatever else one might say about Masterpiece’s claim, at least the baker was being asked by Colorado to do something that he found objectionable. Unlike the religious plaintiffs who challenged the contraception mandate opt-out procedure and the government in the immigration abortion case, the baker had a remotely plausible reason for feeling complicit in what he regards as immorality.
Yet even if one accordingly feels some sympathy for the likes of Masterpiece Cakeshop, the claim should still lose. The Constitution does not protect people from feeling complicit in what they regard as evil. True, it protects freedom of speech, but as Professors Steven Shiffrin, Seana Shiffrin, and I argue in an amicus brief in Masterpiece, baking a cake—absent a whole lot more—is not speech.
Nor would the denial of the baker’s claim in Masterpiece be a regrettable but inevitable side-effect of honestly construing the Constitution. On the contrary, it would be a triumph of democratic pluralism.
We should not want to live under a constitutional regime in which each of us continually searches for objectionable behavior from which to disassociate ourselves. In a democracy characterized by competing, often wildly different, conceptions of the good, we need a modus vivendi to accomplish much of anything. Acknowledging broad complicity claims would make social cooperation across our differences all but impossible.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at

Friday, October 6, 2017

Opposition To the Dismantling of the Affordable Care Act Involves "Little Lobbyists"

Senator Chuck Schumer, the Democratic leader, shook hands with Melanie Carrigg, a 5-year-old Medicaid recipient
from Arizona, before a news conference on health care this month. CreditJacquelyn Martin/Associated Press
‘Little Lobbyists’ Help Save the Health Care Law, for Now
WASHINGTON — Anna C. Corbin had not been involved in politics, had not even been to the Capitol before this year. But since March, she has made the two-hour drive here from her home in Hanover, Pa., 15 times so her sons, Jackson and Henry, could lobby against efforts to dismantle the Affordable Care Act.

Jackson, 12, and Henry, 9, have a genetic condition known as Noonan syndrome, which causes a bleeding disorder, short stature and digestion problems. They also have a new profession — “little lobbyists.”

In the long-running battle over health care, doctors, hospitals and insurance companies have spent millions of dollars this year. But some of the most effective advocacy has come from pint-size petitioners who spent nothing at all: children with serious medical needs who told their stories to members of Congress.

“We were often told that the kids were not voters,” Ms. Corbin said. “But they will have this genetic condition for the rest of their lives. They will be voters, and these laws will affect them. So it’s important for them to have a voice.”

Children like Jackson and Henry put a human face on the debate over insurance regulation, premium subsidies, Medicaid expansion and cost estimates by the Congressional Budget Office.

The American Medical Association, the American Hospital Association, America’s Health Insurance Plans and dozens of other industry groups lined up against the Republican repeal bills. But, lawmakers said, what really sank the legislation was the outpouring from constituents, and few were as influential as the little lobbyists who pleaded for their own lives and the lives of other children with special needs.

“They are fantastic,” said Senator Tim Kaine, Democrat of Virginia. “These kids and their parents demonstrated how catastrophic the Medicaid cuts would be. They really added value to this debate and helped us win.”

Rebecca A. Wood’s family has employer-sponsored health insurance, but under a federal waiver granted to the State of Virginia, Medicaid pays about $15,000 a year for items and services that are not covered by insurance. That matters to her daughter, Charlie Wood, 5, who was born more than three months early, weighed 1 pound 12 ounces and was in the neonatal intensive care unit of a hospital for 10 weeks.

Charlie has a mild form of cerebral palsy and developmental delays, has seen more than a half-dozen medical specialists and uses a feeding tube. She still started kindergarten in Charlottesville, Va., on time this year, but her mother said she saw another threat coming: The bills passed by the House and considered in the Senate would have made deep cuts in projected Medicaid spending, imposing an annual cap on federal payments to each state.

“After the presidential election, I knew that health care would be a huge issue,” Ms. Wood said. “I wanted people to know, when you cut health care, it affects many innocent people like my daughter. I wanted them to see the faces behind the cuts.”

“Without the Affordable Care Act,” Ms. Wood said, “Charlie would have exceeded her lifetime cap before ever coming home from the hospital and would have been uninsurable.”

The House Democratic leader, Nancy Pelosi of California, said the young lobbyists “have made all the difference in the world.” And she described the parents as formidable: “You do not want to stand in between one of these moms and the good health care of her child.”

The effort started when five families visited Senate offices in June for a day of lobbying.

“It took off from there,” said Elena Hung, a co-founder of the group, whose 3-year-old daughter, Xiomara, has chronic lung and kidney disease. Since then, nearly 300 families in 47 states have shared their stories with lawmakers through the group.

They are relieved that the Senate shelved plans for a vote last week, but fully expect the battle to continue. President Trump predicted that the Senate would try again in the first quarter of next year and said Republicans would “have the votes.”

Five-year-old Melanie Carrigg, from Tucson, visited 60 Senate offices and met with Senator Jeff Flake, Republican of Arizona, who ended up voting for the repeal bills in July.

Melanie, one of more than 34 million children covered by Medicaid, has Down syndrome and a heart defect and is deaf, said her mother, Austin G. Carrigg.

When the latest effort to repeal the Affordable Care Act collapsed in the Senate, Ms. Carrigg was happy. But she said: “I’m a realist. I know this fight is not over.”

Ms. Carrigg and her daughter visited the offices of two Republican senators who voted against the repeal bills in July, Susan Collins of Maine and Lisa Murkowski of Alaska.

“We have given information to their staff numerous times,” Ms. Carrigg said. “When you walk in and a staffer says, ‘Oh, they were just talking about you,’ you think, maybe we are making an impression. That has been my personal goal every time. I want them to remember my daughter’s face when they go on the floor and vote.”

Thursday, October 5, 2017

How Teachers Unions Preserve Influence

From the Editor:
I am pro-union, but only to support members' rights and benefits. I do NOT support the extreme mishandling of members' dues that is shown in the post below from Dropout Nation, nor do I support the lazy "I don't care" attitude of many union bigwigs to the needs of members while they - the Very Important People - plunder the funds for themselves. The time has come to level the playing field, and put the money gained from dues where the funds can benefit the members and their families, not the people at the top.

See:  How Teachers Unions Preserve Influence

Betsy Combier
Editor, Advocatz
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

AFT’s Bleak Future

As this morning’s Teachers Union Money Report shows, the American Federation of Teachers knows how to spend well. Especially on its leaders and staff.
Whether or not it will be able to do so is a different story.
Some 236 staffers were paid six-figure sums in 2016-2017, according to the union’s latest disclosure to the U.S. Department of Labor. That is 14 more than in the previous fiscal year. That well-paid group includes Michelle Ringuette, the former Service Employees International Union staffer who is chief political aide to President Rhonda (Randi) Weingarten; she was paid $240,437 last fiscal year. Michael Powell, who is Weingarten’s mouthpiece, picked up $252,702 from the union.
Kombiz Lavasany, an AFT operative who oversees Weingarten’s money manager enemies’ list, earned $177,872 in 2016-2017. Kristor Cowan, who handles the union’s lobbying, collected $189,808 last fiscal year. Then there is Leo Casey, the vile propagandist who currently runs the union’s Albert Shanker Institute; he was paid $232,813 in 2016-2017 for doing, well, whatever Leo does these days that doesn’t include accusing reformers of committing “blood libel“.
Of course, the leaders are well-paid. Weingarten was paid $492,563 in 2016-2017, just a slight decrease over the previous year. She still remains among the nation’s top five percent of wage earners, and thus, an elite. Her number two, Mary Cathryn Ricker, was paid $337,434 last fiscal year (an 8.3 percent increase over the previous period), while Secretary-Treasurer Loretta Jonson was paid $392,530 in 2016-2017, a 9.6 percent increase over the past period. Altogether, AFT’s top three took home $1.2 million last fiscal year, virtually unchanged from the same time in 2015-2016.
The additional salaries and bodies explain why AFT’s union administration costs increased by 17.8 percent (to $10.2 million) over 2015-2016, while general overhead costs increased by 14 percent (to $42 million). The union still managed to keep benefits costs from increasing. It spent just $10.4 million in 2016-2017, barely unchanged from the previous period; that can be credited in part to the fact that, unlike the districts its rank-and-file work in, AFT doesn’t provide defined-benefit pensions and only gives its workers defined-contribution plans that the union can avoid contributing to during times of financial stress.
It takes a lot of money to keep Weingarten and her team on board. Of course, they can thank compulsory dues laws that force even teachers who don’t want to be part of AFT. But those dollars are on the decline.
The union collected just $177 million in dues and agency fees in 2016-2017, a 7.9 percent decline from the previous year. This is despite the fact that the union’s full-time rank-and-file increased by 5.2 percent (to 710,865 from 675,902) over the previous period, reversing a three-year decline. One reason for the decline: A 12 percent decline in the number of one-quarter rank-and-file (to 81,191 from 93,047), a group that includes nurses and government employees represented by the AFT’s non-teachers’ union affiliates, and a 29.2 percent decrease in one-eighth rank-and-filers (to 24,180 from 34,104).
Another factor lies in the move last year by United Teachers Los Angeles to jointly affiliate with the National Education Association. That move contributed to a 23 percent increase in the number of AFT rank-and-filers in affiliates also tied to NEA and other rival national unions (to 158,225 from 128,221). With more states attempting to end compulsory dues laws, a possible U.S. Supreme Court law striking them down altogether, and a desire by state and local affiliates to wield more influence in education policy at all levels, expect more AFT affiliates (and even some NEA affiliates) to also align themselves with other national unions.
Overall, AFT generated revenue (including debt borrowings) of $332 million in 2016-2017, a 1.2 percent increase over the previous year. This included $88.2 million it borrowed during the year to shore up operations (of which $68 million was repaid by the end of the fiscal period); that’s 59 percent more than the amount the union borrowed in 2015-2016. Excluding the borrowing, AFT’s revenue for 2016-2017 was $244 million, virtually unchanged from the previous year.
But as today’s report notes, AFT faces trouble in the next year. If the U.S. Supreme Court strikes down compulsory dues laws as expected in Janus v. AFSCME, the union and its affiliates will lose big. The union has already seen its affiliate in Wisconsin attempt a merger with NEA’s Wisconsin Education Association Council after losing half of its rank-and-file since the state abolished its compulsory dues law six years ago. [The merger was aborted because of the difficulty of merging dues structures.]
While AFT’s presence in Democrat-dominated states could help it stem rank-and-file losses, the reality is that it will likely lose at least 25 percent of its membership. This means a likely loss of $44 million (based on 2016-2017’s dues collections), and less revenue that it can use for influence-buying, political campaign activities, and lobbying. Not even AFT’s stalled strategy of expanding its presence into nursing and healthcare would have offset those losses,  especially since the Supreme Court ruling will also apply to public employees working at hospitals and health centers.
Those possible revenue and influence losses is one reason why AFT, along with other NEA and other public-sector unions, spent so furiously last year to support Hillary Clinton’s presidential campaign. If she had one, it was likely that either she would get to appoint a Supreme Court justice more-amenable to their cause, or, given congressional Republican opposition to Obama’s efforts to select a replacement for Antonin Scalia, would have kept the court split equally between conservative and more-progressive justices.
But with Trump in the White House and his appointee to the high court, Neil Gorsuch, confirmed and in the job for life, AFT and its affiliates now needs a new strategy for actually attracting members. This will be difficult.
Because AFT hasn’t had to actually win bodies since the 1960s, it lacks the strong organizing infrastructure that has made SEIU a major force in both the public and private sectors. The fact that the union has seen a 15 percent year-to-year decline in associate members (who are members of the national union) means that there is also little appetite for its presence, especially since, unlike state and local affiliates, it doesn’t have the means to help associate members out when they have workplace disputes.
While the state affiliates are strong in lobbying legislatures, they, along with AFT National, play little role in addressing the day-to-day concerns of classroom teachers; that’s what locals such as UTLA, Chicago Teachers Union, and United Federation of Teachers in New York City do. That the big locals also tend to be major players at the state levels, dominate the operations of the affiliates, and, in the case, of UFT, virtually controls the virtually-insolvent state affiliate, means that they have little need for either the state operations or national. Even without a Supreme Court ruling, you can expect the local affiliates to develop new structures that bypass AFT and allow them to try new approaches to education policymaking and organizing.
Reformers can’t exactly celebrate, either. A dirty secret of centrist Democrat and civil rights-oriented reformers is that they are as dependent as AFT on compulsory dues. This is because AFT and other public sector unions are the biggest financiers of the Democratic National Committee operations (as well as those of state parties), and also give plenty to reform-minded groups for their activities outside of education. Center for American Progress, Leadership Council on Civil and Human Rights, and UNIDOS are among the reform-minded outfits who will also take a hit if the Janus ruling goes against AFT and its fellow public-sector unions.
You can imagine Weingarten and her staffers shudder at the prospect of a future without compulsory dues. What they will do to preserve traditionalist influence (and keep their jobs) will be fascinating to watch.
Dropout Nation will provide additional analysis of the AFT’s financial filing later this week. You can check out the data yourself by checking out the HTML and PDF versions of the AFT’s latest financial report, or by visiting the Department of Labor’s Web site. Also check out Dropout Nation‘s Teachers Union Money Report, for this and previous reports on AFT and NEA spending.

Wednesday, September 6, 2017

What's Next For DACA?

The next six months in the Congress will be crucial to get the 800,000 DREAMers a legislative solution.

I think what this country needs is a solution to the random pickings of people in political office who stop - or try to stop - national programs before there is an alternative or before making grand slams into individual civil rights, leaving only harm to groups of people in these UNITED States of America.

Let's honor our differences by respecting and protecting them.

Betsy Combier
President and Founder, ADVOCATZ
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Sens. Lindsey Graham, R-S.C., and Dick Durbin, D-Ill., spoke about their Dream Act to help protect DACA recipients at a press conference on Tuesday.

NPR Radio

September 6, 20175:00 AM ET

With President Trump's announcement on Tuesday that his administration was ending the Deferred Action for Childhood Arrivals program (DACA), the White House made clear they want a legislative solution from Congress to protect the roughly 800,000 "DREAMers," who came to the U.S. illegally as children and now face the possibility of deportation.

There are several pending bills in Congress, spearheaded by both Republicans and Democrats, that could gain more steam now that Trump has made the decision to disband the program in six months. DACA was first implemented by President Obama in a 2012 executive after Congress failed to pass comprehensive immigration reform or a bill that would have provided protections to immigrants who came here illegally as children, through no fault of their own, and who have no criminal record.

While Congress could pass a standalone bill to just address DACA, White House press secretary Sarah Huckabee Sanders hinted in her briefing on Tuesday that Trump wanted "comprehensive reform" and dodged on whether Trump would sign a bill just addressed at DREAMers.

In a tweet later Tuesday, Trump seemed to signal he wanted broad immigration reform and didn't single out DACA specifically.

"I have a love for these people and hopefully now Congress will be able to help them and do it properly, and I can tell you, speaking to members of Congress, they want to be able to do something and do it right," Trump had told reporters just hours earlier. "And really we have no choice, we have to be able to do something, and I think it's going to work out very well, and long-term it's going to be the right solution."

He later left open a chance that he could reconsider the wind-down if legislators reach an impasse.

If Congress wants to act to help DREAMers before their protections expire, there are several bills pending that could do the job — all of which could gain steam in the wake of President Trump's decision.

But with Congress set to juggle many major tasks over the next month — including providing disaster funding for victims of Hurricane Harvey, raising the debt ceiling, passing a budget and addressing the White House's push for tax reform — it's unclear how much political capital GOP leaders can throw behind such a bill. House Speaker Paul Ryan has signaled his willingness, but Senate Majority Leader Mitch McConnell has not. And the legislative branch has not shown an ability this year to pass anything of consequence.

Here's a rundown on some of the top pending legislation:

Dream Act, sponsored by Sens. Dick Durbin, D-Ill., and Lindsey Graham, R-S.C.

The senators held a press conference Tuesday afternoon after the Trump administration's announcement, saying they're pushing for action on their latest iteration of the Dream Act by the end of September. While Durbin was highly critical of Trump's decision, Graham said he believed it was the right decision, because he thought Obama had overstepped his legal authority by issuing the far-reaching executive decision. The South Carolina Republican said he believed Congress would be pushed to act

"The reason I think it will get done now is that the leadership of the Republican Party, including the president, realizes it's good for the country economically and otherwise to give these kids the certainty they need in their lives," Graham said.

According to the National Immigration Law Center (NILC), the Dream Act has many of the same protections in place as DACA does, and also creates a path for citizenship or permanent legal resident status if applicants meet certain requirements; DACA did not provide such a path.

Qualifications for permanent status in the Dream Act include having lived in the U.S. for a certain length of time and meeting certain educational, work or military service requirements. It would take at least 13 years for those eligible to achieve citizenship.

However, the White House has already signaled they wouldn't support this bill: When Graham and Durbin proposed it in July, Trump's legislative affairs director Marc Short said, "I think that the administration has opposed the Dream Act and likely will be consistent on that."

Recognizing America's Children (RAC) Act, sponsored by Rep. Carlos Curbelo, R-Fla.

The Miami congressman's plan, which he introduced in March, also takes much of what was in DACA and codifies it, while also providing a pathway toward legal status and, eventually, citizenship.

"The bill provides immigrants that have been vetted by The Department of Homeland Security with three pathways toward legalization: higher education, service in the armed forces, or work authorization. Following a 5-year conditional status, these immigrants would be able to reapply for a 5-year permanent status," Curbelo said in a press release announcing the bill earlier this year. At the end of their permanent status — after a total of 10 years, according to the NILC — DREAMers could apply for citizenship .

"These are young people that went to school with our own children, they are working in this country, they are contributing to this country, they speak English, Curbelo saidon Tuesday on CNN's New Day. "This is the only country that many of them remember. So we should afford them — as long as they're willing to be productive members of society, which most of them are — we should afford them the opportunity to be fully recognized as Americans and to gain legal status in this country."

Curbelo represents a majority-Hispanic district that went for Democrat Hillary Clinton by 16 points over Trump last November — making Curbelo a major target in the 2018 midterms.

Hope Act, sponsored by Rep. Luis Gutierrez, D-Ill.

Gutierrez introduced this bill in July, flanked by the Congressional Hispanic Caucus; 112 Democrats already had signed on to cosponsor his legislation.

To be eligible, people must have entered the U.S. before age 18. It does not include any work, education or military requirements, but does reject people who have been convicted of certain crimes, according to the NILC.

It also provides the fastest path to citizenship. Those eligible can apply for conditional permanent residency, valid for up to eight years, and after three years can apply for lawful permanent residence status. After a total of five years, they can apply for U.S. citizenship.

"DACA is under threat, and we know that President Trump and the attorney general, if he is still in office, will not lift a finger to defend DACA," Gutierrez said back in July."This will replace the order in the lives of these young people with chaos. It will replace the hope they have for their futures with despair. It substitutes cruelty for their aspirations and the aspirations of our entire immigrant population. All of us here support DACA. We fought for DACA and we will defend DACA. And the defense includes putting on the table legislation that charts a way forward."

BRIDGE Act, sponsored by Rep. Mike Coffman, R-Colo.

As soon as news broke over the weekend that Trump was going to end DACA, Coffman announced he planned to file a discharge petition to get his bill to the House floor. The rarely-used method requires a simple majority of signatories to circumvent party leaders and bring up a bill for a vote by the full House.

The BRIDGE Act — which stands for Bar Removal of Individuals Who Dream and Grow our Economy — was proposed back in January, and essentially would codify the current DACA program into law and extend it for three years, allowing Congress more time to come up with a comprehensive, long-term solution on immigration reform.

Unlike the other bills in Congress, it does not include a path to citizenship.

"The members of Congress have a choice: They can let the program be phased out and these young people be subject to deportation, or they can sign this petition for the Bridge Act," Coffman told The Denver Channel on Monday. "The federal government knows where they are, so if there are deportation proceedings, they could be expedited."

Like Curbelo, Coffman is also facing a tough reelection campaign in 2018; he serves a district that Clinton won by 9 points.

What Is DACA

On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status.

Consideration of Deferred Action for Childhood Arrivals (DACA)

DACA Has Changed!

  • We are no longer accepting initial requests for DACA, but we will adjudicate initial requests for DACA accepted by Sept. 5, 2017.
  • We will no longer approve advance parole requests associated with DACA.
  • We are only adjudicating DACA renewal requests received by Oct. 5, 2017, from current beneficiaries whose benefits will expire between Sept. 5, 2017 and March 5, 2018.
  • Read the 2017 DACA announcement
This page provides information on requesting consideration of deferred action for childhood arrivals (DACA). You may request DACA for the first time or renew your existing period of DACA if it is expiring.

Find on this Page:

Previous Rules:

Request DACA for the First Time

The following information explains the guidelines for requesting DACA for the first time. If you need further information and cannot find it in our Frequently Asked Questions, you can call our National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TDD for the hearing-impaired). Customer service officers are available Monday-Friday from 8 a.m. to 6 p.m. in each U.S. time zone.


You may request DACA if you:
  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching your 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  5. Had no lawful status on June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Have not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Age Guidelines

Anyone requesting DACA must have been under the age of 31 as of June 15, 2012. You must also be at least 15 years or older to request DACA, unless you are currently in removal proceedings or have a final removal or voluntary departure order, as summarized in the table below:

Tuesday, August 22, 2017

Indicting the President: President Clinton’s Justice Department Says No by Ronald Rotunda


Nearly 20 years ago, Ken Starr, former solicitor general and judge, asked me to evaluate whether a federal grand jury could indict a sitting president. Starr was then the independent counsel investigating Whitewater and other scandals associated with President Clinton. He turned to me because I was former assistant majority counsel, Senate Watergate Committee, and coauthor of a [warning, shameless self-promotion] widely cited Treatise on Constitutional Law (now six volumes long, in its 5th edition).

My conclusion is (or may be) relevant again. It’s nice to know what I write is timeless. The National Archives, in response to a freedom of information request from the New York Times, has now made public most of my Opinion Letter (it kept secret two portions).

Opinion Letters, unlike briefs, are not argumentative. They should represent the lawyer’s objective evaluation and prediction of what courts are likely to do, even if clients don’t like the results.

My Letter is 56 pages long, with 164 footnotes, not because I was paid by the word but because the issue is complex. My conclusion is pithier. A federal grand jury can probably indict a sitting president for committing a serious felony, unless other rules preclude that (which is the case here—more about that shortly). There is no case directly on point, but the language of the Constitution, language in several cases, and the present Justice Department rules support my conclusion.

First, the framers knew how to write an immunity clause. For representatives and senators, there is a “privilege from arrest” in civil cases when going to and from Congress—a privilege now irrelevant because we no longer use arrest in civil cases. Also, they may not be criminally prosecuted for what they say in Congress (“for any Speech or Debate in either House”). Charles Pinckney, a signer of the Constitution, said, “No privilege of this kind [given to Congress] was intended for your Executive” because “no subject had been more abused than privilege.” Gravel v. United States(1973) said, “executive privilege has never been applied to shield executive officers from prosecution for crime.”
Some argue that criminal prosecution would distract the president and make him unable to perform his duties. The 25th Amendment answers that objection, by offering a mechanism to keep the Executive Branch running if the president is temporarily unable to discharge his powers. In this country, no one is above the law.

On the other hand, a state prosecution of the president is probably unconstitutional because of the Supremacy Clause. There may be thousands of state prosecutors, many of whom might love to secure their 15 minutes of fame by indicting a sitting president, but state prosecutors may not interfere with presidential power.

There is another caveat: the Supreme Court has reaffirmed for nearly 150 years that the president has complete, unreviewable power over federal criminal cases. As the unanimous Court said in the 1974 Watergate Case, United States v. Nixon, “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case,” citing Confiscation Cases.

Nixon said the Watergate prosecutor was no ordinary federal prosecutor because the attorney general gave him “unique authority and tenure.” Admittedly, the Court said, the Department of Justice could change its regulations, but “So long as this regulation is extant it has the force of law.” The present rules of the Justice Department do not mimic those rules.

After Watergate, Congress enacted a special prosecutor statute; though it no longer exists, it applied at the time I wrote my Opinion Letter. Because a statute protected that Independent Counsel (Ken Starr) from removal, he could ask the grand jury to indict.

In contrast, the present regulatory special counsel, (Robert Mueller) does not have the tenure afforded by the unique Watergate regulations and certainly does not have any statutory tenure.

In addition, the present regulations require that Mr. Mueller must follow Justice Department rules and policies. In October 2000, during the waning days of President Clinton’s second term, the Justice Department’s Office of Legal Counsel (OLC), issued an Opinion that concluded “a sitting President is immune from indictment as well as from further criminal process.” The regulations that govern Mr. Mueller require him to follow the Department of Justice “rules and policies.” The OLC’s opinions are “controlling” on the Executive, so this regulatory independent counsel, unlike a statutory independent counsel or the Watergate regulatory counsel, cannot indict a sitting president, which is what my 1998 Opinion Letter concluded. If you don’t like that result, blame President Clinton.

Yet, it’s premature by a long shot to think about indicting the president because all we have now, frankly, is a mountain of innuendo. Some argue Trump obstructed justice when he terminated FBI Director James Comey. However, Comey’s departure didn’t obstruct any investigation. FBI agents were investigating both before and after Comey’s departure. Deputy Attorney General Rod Rosenstein was in charge of the Russian investigation both before and after Comey left. Comey seems to think he was in charge, but the Justice Department is in charge, a point that Rosenstein emphasized in his memorandum criticizing Comey.

Second, Trump’s firing Comey in May cannot be obstruction simply because three months earlier, February 14, 2017, Comey now says Trump had told him that Flynn’s “a good guy. I hope you can let this go.” Comey now claims this comment may be obstruction, but, if he really thought that, he had a legal obligation to report it last February. Title 28, § 535, of the U.S. Code clearly requires a government lawyer who uncovers evidence that a government official has violated the law to report it to the Attorney General. Comey reported nothing, which indicates that he did not think there was any obstruction at the time. Comey’s actions are inconsistent with the idea he thought there was an obstruction of justice. See also, In re Lindsey (D.C. Cir. 1998) (per curiam).

The FBI is supposed to be nonpartisan, but it is not supposed to be independent of the president. Consider, for example, if FDR had fired FBI Director J. Edgar because of his investigation of Albert Einstein, or if FDR told Hoover to stop investigating Einstein. (“Einstein’s a good guy; I hope you can let this go.”) Do we really think that FDR would be obstructing justice? Or, assume that Harry Truman ordered Hoover to stop investigating Ernest Hemingway. Again, do we really think that Truman’s order (a lot more specific than Trump’s “hope”) is a crime? If JFK told Hoover that Martin Luther King is “a good guy” and you must stop investigating him, we would not accuse JFK of obstruction for firing Hoover. Instead, we would have praised JFK.

None of these hypotheticals compare to the charges involving President Nixon, that he or his aides offered hush money or promises of executive clemency in exchange for silence.

Recall also that President Obama said repeatedly he has prosecutorial discretion: the executive branch (including the FBI) has limited resources, and the president has the power to direct those resources.

President Trump has the same power that President Obama did to direct resources.

Finally, we should be very cautious in converting policy disputes into criminal disputes. There were criminal investigations and prosecutions of Wisconsin Governor Scott Walker, Texas Governor Rick Perry, Alaska Senator Ted Stevens, and House Speaker Tom Delay, of Texas. Courts threw out all these cases, but only after much time and expense. A New York state grand jury indicted President Reagan’s labor secretary, Ray Donovan, and six others, for larceny and fraud. Donovan resigned as Labor Secretary, the state prosecutor got his 15 minutes of fame, and then the jury acquitted them all. Donovan asked, rhetorically, “Which office do I go to to get my reputation back?”

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Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.

Friday, October 28, 2016

Anthony Weiner's Laptop Has Emails Which May Incriminate Hillary Clinton

New Emails in Clinton Case Came From Devices Once Used by Anthony Weiner

Huma Abedin and Hillary Clinton on the campaign’s plane on Friday. CreditDoug Mills/The New York Times

WASHINGTON — A new trove of emails that appear pertinent to the now-closed investigation into Hillary Clinton’s private email server was discovered after the F.B.I. seized at least one electronic device shared by Anthony D. Weiner and his estranged wife, Huma Abedin, a top aide to Mrs. Clinton, federal law enforcement officials said Friday.
The F.B.I. is investigating illicit text messages that Mr. Weiner, a former Democratic congressman from New York, sent to a 15-year-old girl in North Carolina. The bureau told Congress on Friday that it had uncovered new emails related to the Clinton case — one federal official said they numbered in the tens of thousands — potentially reigniting an issue that has weighed on the presidential campaign and offering a lifeline to Donald J. Trump less than two weeks before the election.
In a news conference in Des Moines, Mrs. Clinton called on the F.B.I. to release more information about what it had found “without delay,” and insisted that she was confident there would be no change to the F.B.I.’s decision to drop the case last summer.
“The American people deserve to get the full and complete facts immediately,” she said.
In a letter to Congress, the F.B.I. director, James B. Comey, said that emails had surfaced in a case unrelated to the Clinton case, and that they “appear to be pertinent to the investigation.”
Anthony Weiner at the Democratic National Convention in July. CreditRuth Fremson/The New York Times

Mr. Comey said the F.B.I. was taking steps to “determine whether they contain classified information, as well as to assess their importance to our investigation.” He said he did not know how long it would take to review the emails, or whether the new information was significant.
Mr. Trump has fallen behind Mrs. Clinton in most national polls and in many key states. Polls have been tightening in recent days, however, amid the daily release of hacked Clinton campaign emails published byWikiLeaks.
Mr. Trump seized on the F.B.I. action on Friday at a rally in New Hampshire. To cheers of “lock her up” from his supporters, Mr. Trump said: “Hillary Clinton’s corruption is on a scale we have never seen before. We must not let her take her criminal scheme into the Oval Office.”
After deriding the F.B.I. for weeks as inept and corrupt, Mr. Trump went on to praise the law enforcement agency.
“I have great respect for the fact that the F.B.I. and the D.O.J. are now willing to have the courage to right the horrible mistake that they made,” Mr. Trump said, referring also to the Department of Justice. “This was a grave miscarriage of justice that the American people fully understand. It is everybody’s hope that it is about to be corrected.”

Document: Letter to Congress From F.B.I. Director on Clinton Email Case

The Clinton campaign called on Mr. Comey to provide information beyond what was put forth in the letter.
“Director Comey’s letter refers to emails that have come to light in an unrelated case, but we have no idea what those emails are and the director himself notes they may not even be significant,” said John D. Podesta, chairman of Mrs. Clinton’s campaign.
He added: “It is extraordinary that we would see something like this just 11 days out from a presidential election.”
Mrs. Clinton, arriving Friday in Cedar Rapids, Iowa, waved at members of the media gathered on the tarmac but ignored shouted questions.
The Republican National Committee cheered the new attention on Mrs. Clinton’s emails as a potential turning point in the race.
“The F.B.I.’s decision to reopen their criminal investigation into Hillary Clinton’s secret email server just 11 days before the election shows how serious this discovery must be,” Reince Priebus, the Republican committee chairman, said in a statement. “This stunning development raises serious questions about what records may not have been turned over and why, and whether they show intent to violate the law.”
In July, Mr. Comey announced that the F.B.I. had closed the investigation after determining that no one should face criminal charges. But Mr. Comey did criticize Mrs. Clinton and her aides for what he termed the “extremely careless” handling of sensitive information.
Ms. Abedin separated from Mr. Weiner in August after it emerged that he was exchanging lewd messages with a woman on social media. Such behavior had destroyed his congressional career and his 2013 mayoral campaign.
Mr. Trump has pointed to Mrs. Clinton’s association with the couple as an example of her bad judgment.
“I only worry for the country in that Hillary Clinton was careless and negligent in allowing Weiner to have such close proximity to highly classified information,” Mr. Trump said last summer. “Who knows what he learned and who he told?”

Correction: October 28, 2016 
An earlier version of this article incorrectly reported when the F.B.I. director, James B. Comey, announced that the bureau had closed its investigation into Hillary Clinton’s email use. It was in July, not September.

See Also:

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