Legal Loophole or Vital Protection: Does Removing Safeguards for Migrant Children Go Too Far?

Legal Loophole or Vital Protection: Does Removing Safeguards for Migrant Children Go Too Far?

Victoria Grieshammer

Of the many controversies of Trump’s presidency, the separation of children from their parents during the immigration process may be one of the most acrimonious. Indeed, regardless of one’s politics, it is difficult to think of a more distasteful situation than one where parents and children are wrenched from each other by the government. This is made worse by the fact that this happens during such a stressful event as moving to a new country, especially when such moves are often the result of violence and poverty in one’s home country. The conditions in which the children are kept do not help to ease these harrowing events. These tent cities, as some have called them, do not provide schooling, books or mental health treatment, temperatures can reach up to 100 degrees, and children are there for months, uncertain of their futures.

The crisis has only gotten worse, as hundreds of children have been held in these tent cities for months. Specifically, more than 500 children have been in a tent city near Tornillo, Texas since August. Additionally, another 46 children have been held at that site since June. Aside from the clear abuse of human dignity as well as a public relations disaster, this also violates a two-decades-old court order on the length that minors can be detained. This 1997 court settlement—frequently called the Flores agreement—came out of the Supreme Court case Flores v. Reno. Perhaps unsurprisingly, the agreement originates from previous alleged mistreatment of migrant children by the former Immigration and Naturalization Service in the 1980s. Specifically, Jenny Flores, for whom the case is named, was detained at age 15 while crossing the border to live with her aunt. After being apprehended, the 15-year-old was arrested, placed in handcuffs, and strip-searched, all while her aunt was denied custody and Flores was kept in a juvenile detention center.

The Flores agreement requires U.S. authorities to move immigrant children out of the detention centers and into state-licensed shelters, or to parents or guardians, within 20 days. When the families are released together, they are often given GPS ankle bracelets to track their whereabouts until it is their time to go to court. As might be expected, Tornillo, the tent city in question, is not one of these state-licensed shelters. The difference between state-licensed shelters and those like Tornillo is in more than just their titles. Indeed, these state-licensed shelters have such important features as access to schooling and legal counsel. Accordingly, migrant children are being held in these facilities in violation of long-standing precedent that was erected to ensure their health and safety.

This single violation of the Flores agreement is the tip of the iceberg, though. In fact, the Trump administration is in the process of gutting the protections provided by the Flores agreement. Although Trump has stated that he will replace the rule with a similar one that ensures immigrant children are “treated with dignity, respect and special concern for their particular vulnerability,” it is currently unclear how this will look in actuality. To replace the families’ ability to leave the shelters, the administration asserts that it will build more humane shelters that will house migrants for longer. The administration’s reasoning for eliminating the so-called legal loophole is that the Flores agreement may have the effect of enticing immigrant families to come to the United States with the idea that their children will keep them from being held in detention centers for extended periods of time. This claim is unsubstantiated, though, and is even possibly refuted by data that shows that unauthorized Mexico border crossings have actually significantly declined since the Flores agreement. If the comments on this rule are any indication, the public does not approve. Whether the revising of the Flores settlement agreement will continue to protect migrant children or whether immigration services will continue to repeat mistakes of the past, though, is left to be seen.

Jaded and Confused: FASORP’s Title VI and Title IX Lawsuits Against Harvard Law Review

Jaded and Confused:
FASORP’s Title VI and Title IX Lawsuits Against Harvard Law Review

Elizabeth Grindell

On October 6, 2018, a Texas law firm filed a lawsuit on behalf of the group, Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP)[1] against Harvard Law Review, alleging violations of Title VI and Title IX. FASORP claims that the Law Review commits illegal race and sex discrimination when selecting articles for publication by giving preference to articles written by women or racial minorities. The practice of considering race and sex for opportunities in the field of higher education was established based on long-standing, historic evidence of invidious discrimination against women and minorities; yet FASORP seems to overlook the benefit that Harvard’s Law Review gains from such diversity. Selecting authors with varied backgrounds and life experiences directly caters to the Law Review’s vital goals of introducing original and nuanced perspectives into legal academia by encouraging unique topic selection and creative avenues of investigation into modern theories and issues of the law.

The Harvard Law Review chooses 18 of its 48 new editors through a holistic evaluation in which applicants can indicate their race, ethnicity, gender, sexual orientation, socioeconomic status, and any physical disabilities. Compl. ¶¶ 14–16. FASORP alleges that“this ‘holistic’ evaluation gives preferential treatment to women, ‘underrepresented’ racial minorities, homosexuals, and transgendered people . . . at the expense of articles written by FASORP members who are white or male.” Compl. ¶ 17. FASORP goes even further, however, calling the Law Review’s members and editors “less capable students” due to this selection based on diversity criteria as opposed to solely merit-based considerations.[2] FASORP additionally claims that alumni of the Harvard Law Review also face injuries because of these practices, in that “race and sex preferences [] diminish the prestige of the law review credential,”citing a 1995 article by Richard A. Posner which cautioned that Harvard’s “epicycles of affirmative action” would make it a “laughingstock” in the future. Compl. ¶ 28.

FASORP’s mission creates tension between the class of students and alumni accustomed to privilege that sees diversity practices as a detraction from their own successes, and the class of current students and editors who are receiving the benefits of these programs in a way that prior generations have been historically denied. In an effort to mitigate the former class’ jaded assessment of holistic evaluations, FASORP resorts to the overused motif of women- and minority-protective arguments to bolster its position. For example, FASORP asserts that Harvard’s holistic evaluations injure women and minorities as well because “it is difficult or impossible for them to prove that they earned their law-review membership because of academic merit rather than the Law Review’s diversity set-asides.” Compl. ¶ 29. According to FASORP, because of this practice “their law-review membership [is] tainted . . .” Compl. ¶ 31. To interpret these allegations in any way other than demeaning and irresponsible is to reaffirm the necessity of women’s and minorities’ participation in academic discourse of the very kind Law Reviews and Journals seek to instigate; for without their perspectives and voice, attitudes like FASORP’s become pervasive and malignant. I think what this lawsuit truly comes down to is this well-known progressive expression: When you are accustomed to privilege, true equality feels a lot like oppression.

 

[1] According to Bloomberg, FASORP’s website domain was created on October 6th of this year—the same day that the Harvard suit was filed. Bob Van Voris, Harvard Law Review Suit Opens New Front in Admissions-Bias Fight, Bloomberg (Oct. 8, 2018), https://www.bloomberg.com/news/articles/2018-10-08/harvard-law-review-suit-opens-new-front-in-admissions-bias-fight. On FASORP’s site, fasorp.org, the group expresses its “opposition to the corrupt and discriminatory practices that subordinate academic merit to diversity considerations.” It features a submission box giving visitors to the site, including non-members and anonymous users, an opportunity to submit “evidence” or “anecdotes” including “incriminating e-mails, audio recordings, and documents that expose race or sex preferences.”

[2] Compl. ¶ 26 (“Because the Harvard Law Review has subordinated academic merit to diversity considerations when selecting its members and editors, the articles that FASORP members submit to the Law Review are judged by less capable students—and these are the students who will ultimately make the career-altering decision of whether a professor’s article gets accepted for publication or rejected.”).

Inadvertent Lessons from Judge Kavanaugh’s Confirmation Hearing

Inadvertent Lessons from Judge Kavanaugh’s Confirmation Hearing

Heather Stinson

As the confirmation hearings for Supreme Court nominee, Judge Brett Kavanaugh, continue to heat up, with now three women coming forward proclaiming that there is a side to Judge Kavanaugh that should be known by the Senate Judiciary Committee before a vote as to whether he should be promoted to the highest Court, I am struck by two unrelated concerns.

First, is this notion that a person is only capable of being one version of themselves at all times, in all places, with all types of people. Many who have known Judge Kavanaugh in various capacities over the years have made statements or submitted signatures vouching for him, since in their experience they never witnessed any behavior that would give them pause or concern. In my previous role with the Independent Reconciliation Compensation Program (“IRCP”), which is tasked with compensating victims of childhood sexual abuse by clergy covering five different Diocese in New York, I learned quickly that people are in fact capable of being more than one type of person. Certainly, those who were victims of clergy sexual abuse also learned this lesson when they witnessed their abusers lovingly administering mass on Sunday after having raped them the night before. Many of those same victims were not believed because their families and friends in the parish could not square their good interactions with the parish priest with the allegations of abuse being lodged. Thus, we must dispense with the notion that Judge Kavanaugh, or any person for that matter, is only ever always good or always bad in behavior. After all, not even the vilest pedophile priest was abusive to all children in a parish, to some he was the embodiment of God himself. How can you get much better than that?

Second, is this idea that a man, giving a woman a job, is the definition of a woman’s rights supporter, and thus the inference goes, someone who would then be incapable of otherwise harming a woman—which has been raised as Judge Kavanaugh and his supporters push back on the allegations of possible sexual assault. Judge Kavanaugh has made a point, both in an interview and other statements, to praise his own record for how many female law clerks he has previously hired and later recommended to clerkships on the Supreme Court. It genuinely concerns me that women have a harder time obtaining certain caliber clerkships, even though women make up the majority of law students. Mostly though, when Judge Kavanaugh pats himself on the back for being so willing to hire women, to me it is as if he is admitting that he could have gotten away with not hiring women, or at least not so many women. So as these previous clerks vouch for him as a person who, based on their working relationship with him (which, it should go without saying, is not the context that is at question with the allegations) is incapable of sexually assaulting a woman, they are also admitting that they owe their careers to the benevolence of a man. It should concern the entire legal profession that for women, it is still men who are making or breaking their careers. Women obviously need both male and female mentors, and as such I don’t discount Judge Kavanaugh’s intention in hiring and mentoring women. Rather, I take issue both with the idea that a logical inference from his propensity to hire females is that he would be incapable of inappropriate behavior towards a woman in any context, and with the inadvertent admission that the legal profession is still a boy’s club, either because it is the boy who gets the job, or because it is the boy who graciously bestows the job to the girl.

As for the allegations themselves, my hope is that all involved, including Judge Kavanaugh, receive proper support and a fair hearing. Let us focus on what matters and dispense with distracting and erroneous ideas, such as the idea that a person is only ever all good or all bad. The purposes of the allegations being brought forward are to attest to the character and ability of a judicial nominee, period. If true, these allegations point to a side of Judge Kavanaugh that may disqualify him for this particular job. There are so few people who will ever sit in one of those nine seats it behooves us to make sure we ascertain all we need to know about a nominee before handing over that chair.

The Supreme Court Can Fix Qualified Immunity

The Supreme Court Can Fix Qualified Immunity

Daniel Becker

The doctrine of qualified immunity has come under increasing scrutiny. While Justice Sotomayor has led the charge for reform at the Supreme Court level, lower federal courts have begun to call for a reevaluation of the doctrine. One court called the current application of qualified immunity “overprotective of police and at odds with the original purpose of section 1983.” On the Fifth Circuit, Judge Willett criticized “the kudzu-like creep of the modern immunity regime.” Critics point out that qualified immunity is extremely difficult for plaintiffs to surmount, which often results in no remedy being granted for violations of a plaintiff’s rights. Two simple tweaks to qualified immunity may be able to bring the doctrine back to its roots and allow the validation of violated rights.

Courts apply a two-part test to determine whether an officer is entitled to a grant of qualified immunity. The first part of the test asks whether the officer’s conduct violated a constitutional right. The second part of the test is to determine whether the law was clearly established at the time such that the officer should have known that the conduct was unlawful. The purpose of qualified immunity is to protect officers when they act in tense situations where the law has not provided clear guidelines. Thus, qualified immunity is granted unless the officer violated a clear constitutional right and the officer’s conduct was clearly established as unlawful at the time of the incident.

Ideally, a growing body of case law would establish what conduct violates constitutional rights and would slowly eliminate the gray areas in the law. This, however, is not the case. The Supreme Court does not mandate that courts answer whether a constitutional right was violated. Courts often find it easier to decide that the law was not clearly established in a given case, instead of first finding that the conduct was a constitutional violation and then finding that it was not clearly established. Thus, the growing body of case law, which would gradually eliminate some of the legal gray areas around constitutional violations, never grows. This is precisely the point Judge Willett made in his concurrence. Avoiding the first test necessarily forces the stagnation of the second test because the law will never be clearly established. To fix this stagnation problem, the Supreme Court can mandate that lower courts apply both prongs of the test to all cases, which they were required to do from 2001 until 2009.

Another potential solution to the difficulty of prevailing on a claim that constitutional rights have been violated is for the Supreme Court to restore the ability of courts to examine the intent of the officer. This would move the qualified immunity from an objective analysis based on what a reasonable officer would do to a subjective analysis based on the officer’s intent when he performed an action. For example, the Supreme Court sustained a qualified immunity defense where an officer killed the driver of a fleeing car. The car was about to hit a spike strip when the officer opened fire. The officer would later tell his superior officer “How’s that for proactive?” Because qualified immunity is an objective analysis, these words could not be used in the Court’s legal analysis. Under a subjective analysis, however, those words could show the reckless disregard the officer had for the law and thereby bar him from successfully asserting qualified immunity.

Qualified immunity is an important doctrine. It tries to balance the interests of officers in performing their duty without fear of legal consequence, the interests of citizens in the protection of their constitutional rights, and the interests of society in law enforcement and protection from crime. The courts increasingly appear to have skewed that balance in favor of law enforcement. Spurring the growth of a body of case law to establish when conduct violates the constitution and allowing courts to look at the subjective intentions of officers would go a long way toward fixing the doctrine.

Drama in the Senate Over a Very Boring Law: The Presidential Records Act

Drama in the Senate Over a Very Boring Law: The Presidential Records Act

Zachary Harris

There has been extensive drama this week in the United States Senate over the nomination of Judge Brett Kavanaugh to the Supreme Court. When the Senate considers a nominee, they typically review documents from the nominee’s career. These documents must undergo an extensive process before they can be released. Senate Democrats claimed the process for releasing the documents was a partisan “sham” meant to prevent the American People from getting “the full truth.” Republicans say the process is meant to speed the release of documents and allow Senators more time to review them. They claim the process is prescribed by the Presidential Records Act.[1]

The Act, first passed in 1978, governs the storage and release of Presidential Records. There are six categories of documents which the outgoing President can ask not be released for up to twelve years following his departure from office. Many of the disputed documents fall within these categories. Importantly, the former President can waive this restriction at any time and allow the documents to be released prior to the twelve-year expiration.

At issue with Kavanaugh’s nomination are thousands of documents created during his tenure in George W. Bush’s White House, where he served in the Counsel’s Office, as an Assistant to the President, and Staff Secretary. The National Archives, which stores all of a former President’s documents, says they have in their possession “the equivalent of several million pages of paper and email records related to Judge Kavanaugh . . . .” By comparison, during the confirmation of Justice Kagan, they released 170,000 pages of documents; for Chief Justice Roberts, only 70,000.

The process for the National Archives to review and release the documents is extensive. First, staff review the material and remove personal documents like diaries and journals. Next, any documents which fall within the six exceptions undergo further review. The Archivist collects these documents and gives notice to the President under which the documents were created and the current President. Both have thirty days to determine whether to assert any sort of privilege over the documents, like attorney-client privilege or executive privilege.[2] If both Bush and Trump waive privilege, then the documents head to the Senate for their use. If either asserts a privilege, however, the Senate would then have to sue to secure the release of the records.

This process takes a tremendous amount of time. There is a workable solution to speed things up, however. The former President, and the people he designates, have immediate access to the documents. They can conduct their own review and waive privilege before the National Archives finishes their review. This is precisely the arrangement Senator Grassley and President Bush’s representative, attorney Bill Burck, came to. President Bush requested the entire collection referencing Brett Kavanaugh and had his representatives review the documents. Some documents they deemed to be personal, outside the scope of the Senate hearings, or protected by privilege. They sent these documents back to the National Archives to review the documents under their process. Other documents did not need any protection and could be released publicly. For these documents, they waived privilege (President Trump followed suit) and released the documents to the Senate with no restrictions.

Some of the documents were closer calls. They were not clearly privileged but were not clearly ready for public release. The documents fell within the six PRA exceptions. To avoid subjecting each document to a lengthy privilege analysis, Bush’s team agreed to expeditiously review the collection for the Senate’s use only. They agreed to provide these documents to the Senate on a condition of confidentiality. If a Senator wanted to release the document, they would ask President Bush to waive privilege. If President Bush agreed, the document could be released, if not, the document would go through the standard National Archives process which was happening concurrently.

The problem is timing. The National Archives process takes too long for Senators to review the documents before Kavanaugh’s confirmation hearing—assuming both Bush and Trump waive privilege. If either does not, an even longer court battle would begin. The alternative, however, places President Bush—and more troubling to some, Bill Burck, a colleague of Brett Kavanaugh—as the gatekeepers to what documents the Senate is entitled to review and release.

Whether the process was effective remains to be seen, but it was not an egregious departure from the law and likely found its roots not in partisanship, but in convenience.

[1]44 U.S.C. 2201 et. seq.

[2]74 FR 4669

The Beginning of the End for Chevron Deference?

The Beginning of the End for Chevron Deference?

Daniel Becker

The nomination of Judge Kavanaugh to fill the seat of the recently retired Justice Kennedy has set court watchers abuzz. Opinions have been written on the consequences of this change for abortion rights, gun rights, and presidential power. It would be unwise, however, to overlook a potential area of agreement between Justice Kennedy and potential Justice Kavanaugh: Their mutual skepticism of Chevron deference. Judge Kavanaugh’s elevation to the Supreme Court could add one more crucial vote to overturn or rework Chevron and mark a fundamental change in the Court’s deference to executive agencies.

Chevron deference, named after Chevron v. Natural Resources Defense Council, creates a two-step analysis of executive agency regulations. First, a court must determine whether the statute the agency is interpreting is ambiguous. If yes, then the court must determine whether the agency’s interpretation is reasonable. If the agency’s interpretation is reasonable, the court will defer to the agency. In extraordinary cases, courts have also applied a “major rules” test before engaging in Chevron analysis. The major rules test, or Chevron step 0, prevents agencies from issuing rules on major topics unless Congress clearly indicates the agency should resolve the issue. If Congressional intent to delegate to the agency on such a large question is absent or questionable, the Supreme Court will interpret the law itself without deferring to the agency.

Justice Kennedy, in one of his last opinions before announcing his retirement, expressed his skepticism of Chevron deference and how it was being applied in lower courts. Justice Kennedy wrote that “given the concerns raised by some Members of this Court it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.”[1] His concurrence indicates that he saw serious separation of powers concerns with the way lower courts were applying Chevron deference.

Judge Kavanaugh appears to share Justice Kennedy’s skepticism of Chevron. One potential way for him to limit Chevron deference is to expand the major rules doctrine, which he has indicated a willingness to do. When confronted with the FCC’s reinterpretation of the Communications Act of 1996 to allow it to regulate the internet as a utility, Judge Kavanaugh dissented. Writing for himself, he would have held that the FCC did not have the authorization to make such a wide-ranging reinterpretation of its own statute. Foreshadowing Justice Kennedy’s concurrence in Pereira, Judge Kavanaugh found it a violation of the separation of powers to allow the FCC to issue such a sweeping reinterpretation of their own regulatory authority without action by Congress. His analysis relied on a strong interpretation of the major rules doctrine. Because the FCC reinterpretation was a major rule, and because the FCC had not received clear Congressional authorization to issue the reinterpretation, the rule was invalid.

Another potential reworking of the Chevron standard is to redefine what the Court will accept as a “reasonable” interpretation of an agency’s statute. Judge Kavanaugh has also expressed a willingness to limit what agency interpretations a court will consider “reasonable.” Chevron deference allows agencies to interpret vague statutes as long as the agency interpretation is a reasonable construction of the statute. In White Stallion Energy Center, LLC, for example, the EPA interpreted a statute to allow them to regulate electrical utilities without consideration of costs. The statute made no mention of costs, only that the agency could do what was “appropriate.” The D.C. Circuit upheld the EPA regulation. Judge Kavanaugh, however, dissented. It was unreasonable for the EPA to adopt a regulation which cost $9.6 billion dollars by the EPA’s own estimates without taking those costs into account, contrary to what the EPA and the majority said. Redefining what is “reasonable” marks the other potential path for a future Justice Kavanaugh to push the Court to limit Chevron deference.

A future Justice Kavanaugh would likely be one more vote to alter Chevron deference. The two paths outlined here, an expansion of the major rules doctrine and a change in what agency interpretations courts will accept as reasonable, would limit the circumstances agencies are entitled to Chevron deference without completely eliminating it. A more aggressive Supreme Court could eliminate Chevron deference entirely, as some state courts have done. Given the role Chevron plays in judicial evaluation of agency regulation, however, alteration seems to be more likely than abolition.

[1] Pereira v. Sessions, 585 U.S. ___ (2018) (Kennedy, J., concurring).