Thursday, February 23, 2017
The Trump administration has withdrawn the Obama administration's directive to the Education and Justice Departments that protected rights of transgender individuals. Specifically, the directives had provided guidance that transgender individuals be permitted to use the bathroom that aligned with their gender identity.
In what may have been a surprise to many, Secretary DeVos opposed the rollback, but Attorney General Sessions, who favored the rollback, had the President's backing. DeVos ultimately relented but with the concession that schools be instructed to respond and prevent bullying of transgender students.
The order is precursor to the government's position in the Gloucester County School Board case scheduled to be heard by SCOTUS on March 28. Hearing had been twice postponed, presumably with Justice Roberts hoping that Trump's nominee would be present for argument.
In a letter sent yesterday to the Supreme Court, the Deputy Solictor General has informed the court that the prior guidance has been withdrawn and the government will rely solely on the legal issues (Title IX) presented by the case.
Wednesday, February 22, 2017
Two North Carolina legislators have introduced a bill that would result in the state's belated ratification of the federal Equal Rights Amendment. It's an uphill battle, they acknowledge, but they are buoyed by the energy that brought millions out to women's marches around the country in January.
By some accounts, the federal ERA effort died in 1982 when it fell just three states short of the 38 needed for ratification within the specified time period. Some legal scholars, however, argue that there is no constitutional time clock for ratification, and that even today, three more state ratifications would be sufficient to amend the US constitution to add the ERA. North Carolina was one of 15 states that refused to ratify in the 1970s. If it reversed course and ratified now, just two more states would be required to activate the ERA.
Even if you're skeptical about the ERA extension argument, it's clear that the ERA -- and CEDAW -- are among the most effective frameworks for channeling the energy of the women's marches. Yes, there are important and difficult battles along the way: fair and equal pay, freedom from violence, and fairness in healthcare all come to mind. But while activists are fighting for these rights, the larger frames of the ERA and CEDAW provide a common platform that amplifies activists' work on all of these fronts, and that connects activists across issues.
The growing energy around the Cities for CEDAW campaign is a case in point. San Francisco has shown how the CEDAW framework can be used to address subtle sex discrimination on the city level across a range of substantive areas. The list of Cities for CEDAW is growing, and next up may be Durham, North Carolina, where the Durham Local to Global Women's Forum will be held on February 23, 2017. More information is available here. In North Carolina's Research Triangle, fairness for women in the sciences has particular salience. By including this effort within the CEDAW frame, North Carolina's women's rights activists ensure that their work has resonance for all of those in the state who are fighting for equality -- including the two state legislators who are pushing for ERA ratification.
The ERA and CEDAW both provide broad frameworks for action. But do we have to choose one or the other? Both would elevate and expand women's human rights in the US. In one of my first encounters with the UN system, I participated in shadow reporting on US compliance with the ICCPR. When the US representative finally appeared before the UN Human Rights Committee, he (or course, he) was asked, not about CEDAW, but about the ERA: shouldn't the US adopt the ERA in order to come into compliance with the ICCPR? The representative fumbled for an answer and came up with something about the Equal Protection clause as an adequate substitute. But more than twenty years later, the right answer is still the same: Yes, to the ERA. And yes to CEDAW.
Tuesday, February 21, 2017
President Trump's executive orders on immigration have united strange bedfellows.
The National Lawyers Guild sprung into immediate action, supporting lawyers representing those who were denied admission or re-admission to the US. They continue to provide representation and hold rallies in opposition to the Trump policies.
At its mid-year meeting earlier this month, the ABA House of Delegates adopted Resolution 10C (as amended) urging President Trump to, among other actions, withdraw Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States.” Resolution 10C was co-sponsored by the ABA Section of International Law, the New York City Bar Association, and others. You may watch the video here.
Lawyers are powerful, and even more so when joined together.
Monday, February 20, 2017
Hot off the presses is an interesting new book by Dr. Jan Arno Hessebruegge, Human Rights and Personal Self-Defense in International Law (Oxford 2017). If you're in the Philadelphia area, note that Dr. Hessebruegge will be speaking about his new publication at Temple Law School at 12 noon on Tuesday, Feb. 21. More information is available here.
According to the publisher's website:
"While an abundance of literature covers the right of states to defend themselves against external aggression, this is the first book dedicated to the right to personal self-defense in international law. Drawing on his extensive experience as a human rights practitioner and scholar, Dr. Hessbruegge sets out in careful detail the strict requirements that human rights impose on defensive force by law enforcement authorities, especially police killings in self-defense. The book also discusses the exceptional application of the right to personal self-defense in military-led operations, notably to contain violent civilians who do not directly participate in hostilities."
- the Michael Brown case as one instance where compliance with human rights standards on the use of self-defense is doubtful (because the officer in question shot to kill, instead of trying to incapacitate);
- "stand your ground" laws in Florida and other jurisdictions;
- so-called "Make my day" or castle doctrine laws in Colorado, Texas and other jurisdictions that presume the legality of lethal self-defense in cases of unlawful entry into homes or even business premises or motor vehicles;
- questions concerning the burden of proof. In particular, Ohio still places the full burden of proof for self-defense on the defendant, which is irreconcilable with the presumption of innocence; and
- human rights and the pro-gun lobby.
A human rights practitioner and blogger, Dr. Hessebruegge currently works for the New York Office of the UN High Commissioner for Human Rights.
Sunday, February 19, 2017
by Jeremiah Ho
Criticizing another’s garden—or perhaps wedding bouquet, here—doesn’t keep the weeds out of your own. The Washington Supreme Court has rendered a decision in the case of a florist’s refusal to provide flowers to a same-sex couple for their wedding. The florist had justified her refusal based on her religious beliefs.
The decision responds to allegations that the florist’s refusal to sell flowers to a gay couple, Robert Ingersoll and Curt Freed, for their wedding violated the public accommodations provision of Washington state’s antidiscrimination statute. Previously, the florist, Arlene Stutzman, had defended on First Amendment doctrines of free speech, religious exercise, free association, and hybrid rights, as well as free exercise of religious under the Washington state constitution. She and the floral shop (as corporate entity) had lost below and then appealed.
In 2006, Washington state added “sexual orientation” as a protected class. Also by state referendum, the state legally recognize same-sex marriages beginning in 2012. Although in almost every aspect, Stutzman, claimed narrowly that her justifications for refusal to sell to plaintiffs-respondents, Freed and Ingersoll, were based on her objections to a wedding ceremony that contradicted her religious beliefs and not the same-sex marital status or sexual orientation of the respondents, the court was not persuaded on such narrow grounds. Rather, the court reject such status-versus-conduct distinctions and observed that Washington’s antidiscrimination statute was mandated “to be construed liberally” to decide whether or not her refusal to sell was sexual orientation discrimination. The court also found that the antidiscrimination statute had no requirement for a balancing of religious rights against rights of members of a protected class.
All in all, the ways in which Stutzman legally couched her justifications on religious grounds were not new legal arguments in the court battles between religious freedom and sexual orientation antidiscrimination. The court’s ruling seems to pull the veil down on those tactics to reveal the strawman arguments based on blanket constitutional First Amendment guarantees that religious litigants make when defending against discrimination claims—i.e. religious belief arguments made by the perpetrators of the discrimination that artfully prompt either narrow or broad readings of their discriminatory conduct in order to obfuscate the discriminating nature. For instance, Stutzman narrowly rationalized her refusal to sell flowers as an objection to the wedding ceremony of same-sex couples based on religious grounds rather than a refusal to sell based their sexual orientation. The court declined to entertain that narrow reading by rejecting her conduct-versus-status distinction (same-sex wedding v. sexual orientation) based on recognition by the Washington state statutes that “all discriminatory acts,” including those that have direct or indirect results in any marginalization based on sexual orientation, is a violation. In other words, she couldn’t narrowly reinterpret her conduct to an objection against same-sex wedding ceremonies based on her religious beliefs in order to skirt violations under the anti-discrimination statute. She can’t conveniently “forget” the other half of that equation to dodge discrimination: the fact that the couple in this wedding happened to be gay. Talk about not denying Ingersoll and Creed their dignity and humanity.
Additionally, here’s an example of how Stutzman broadly construed her actions when it suited her. She defended her case by also claiming that the Washington state antidiscrimination statute violated her First Amendment free speech rights because making her sell her flowers to Ingersoll and Creed would have been a coerced endorsement of same-sex marriages that would counter her religious convictions. The court was not persuaded by this “compelled speech” argument because the commercial sale of her floral wedding arrangements could not be viewed as expressive speech “in a literal sense.” Rather, it was conduct that did not intend to communicate a message—i.e. it was not “inherently expressive” conduct that then could be coerced or compelled.
Last week’s decision in this case shows that a discriminatory party cannot use religious beliefs to argue, either narrowly or broadly, to skirt accusations of discrimination. One cannot in such ways hide behind religion by saying one’s religion led to a discriminatory act. It’s still discriminatory, even if it is religious.
But as her attorney alluded since the decision, a request for appeal to SCOTUS is forthcoming. So stay tuned.
Don’t toss that bouquet just yet.
Thursday, February 16, 2017
Risa Kaufman, Columbia Law School Human Rights Institute
Hungry for good news? New York City is poised to become the first U.S. city to provide universal access to counsel in housing court.
In a public statement last weekend, New York City Mayor Bill DeBlasio and City Council Speaker Melissa Mark-Viverito announced their support for legislation providing legal counsel for all low-income tenants facing eviction. The announcement all but ensures that some version of the pending right to counsel bill, Intro 214-a, will become law and that New York City will become the first jurisdiction in the U.S. to provide legal counsel for tenants facing eviction.
This important victory is the result of remarkable and sustained efforts by the Right to Counsel NYC Coalition, the National Coalition for a Civil Right to Counsel, progressive politicians, the organized bar, and the judiciary.
The initiative would expand New York City’s provision of free legal aid for tenants in housing court with household incomes at 200% or below the federal poverty level and make legal counseling available to those who earn more. The Mayor’s new commitment would add funding to the City’s recent expansion of legal aid for low-income tenants, which has raised tenant representation rates from 1% to 27% and reduced evictions by 24%. The new increase would be phased in over five years, with an estimated 400,000 people served by the program when it is fully implemented.
Human rights have been front and center in advocacy for the New York City right to counsel effort. As has been noted in previous posts and in other scholarship, guaranteed access to legal counsel for people threatened with the loss of housing safeguards basic human rights. Two of the core human rights treaties ratified by the United States (the ICCPR and the CERD) underscore the importance of legal representation as a component of the right to equal and meaningful access to justice and due process of law. UN human rights experts have specifically recommended that the U.S. do more to ensure access to legal representation in cases where basic human needs -- including housing -- are stake.
While there remain significant unmet legal needs, New York City has taken major steps in recent years to expand access to justice, including through its funding of the New York Immigrant Family Unity Project, a public defender program for immigrants facing deportation, and its creation of the Office for Civil Justice, which works to increase the availability of free and low-cost legal services throughout the city.
In leading the United States on providing access to counsel in housing court, New York City joins jurisdictions around the world in ensuring legal counsel in basic needs cases. And it helps to implement Goal 16 of the UN’s 2030 Sustainable Development Agenda, which calls on each country, including the United States, to ensure access to justice for all.
While New York City is the first U.S. jurisdiction to provide counsel in housing court, other state and local jurisdictions are in the pipeline. A right to counsel bill is pending in Massachusetts, and the District of Columbia is considering a housing representation expansion bill.
In addition to promoting and protecting equal and meaningful access to justice, these measures exemplify the role that states and localities play in ensuring rights protections more generally in the new political climate. With core safety net protections and other human rights under threat by the new Administration, states and localities offer a critical line of defense, and a potential source of more good news.
Fordham Law Professor Jennifer Gordon, a leading thinker and activist in the immigrants' rights field, has posted a timely article on SSRN, Regulating the Human Supply Chain, 102 Iowa L. Rev. (2017). Her data and analysis is particularly illuminating in light of recent political developments. Here is the abstract:
Over the past decade, the United States has experienced a stunning 65% decline in undocumented immigration. While politicians seem unaware of this change, firms that once relied on local undocumented workers as a low-wage labor force feel it acutely. Such companies have increasingly applied to sponsor temporary migrants from abroad (sometimes called “guest workers”) to fill empty jobs. In 2015, the number of migrant workers entering the United States on visas was nearly double that of undocumented arrivals — almost the inverse of just 10 years earlier. Yet notice of this dramatic shift, and examination of its implications for U.S. law and the regulation of employment in particular, has been absent from legal scholarship.
This Article fills that gap, arguing that employers’ recruitment of would-be migrants from other countries, unlike their use of undocumented workers already in the United States, creates a transnational network of labor intermediaries — the “human supply chain” — whose operation undermines the rule of law in the workplace, benefitting U.S. companies by reducing labor costs while creating distributional harms for U.S. workers, and placing temporary migrant workers in situations of severe subordination. It identifies the human supply chain as a key structure of the global economy, a close analog to the more familiar product supply chains through which U.S. companies manufacture products abroad. The Article highlights a stark governance deficit with regard to human supply chains, analyzing the causes and harmful effects of an effectively unregulated world market for human labor. Drawing on the author’s original research into innovative public, private, and hybrid approaches to the governance of human supply chains, the Article sets out and evaluates a range of potential interventions, ultimately proposing a new supply chain liability that realigns risk and responsibility for the harms that attend the global recruitment of low-wage workers.
Tuesday, February 14, 2017
In the wake of the Appeals Court setback to Donald Trump’s Executive Order to ban entry of nationals from seven predominantly Muslim countries and suspend refugee admissions, his administration began following through on its promise to crackdown on undocumented immigrants, with raids reported in 6 states, stoking terror in immigrant communities. The stepped up enforcement highlights two other EO’s on immigration that have garnered less attention than the travel bans, but will wreak their own havoc.
The EO Enhancing Public Safety in the Interior of the United States, signed on January 25, blocks funds to sanctuary cities and prioritizes the deportation of immigrants who have been convicted of or charged with a criminal offense, committed acts that constitute a chargeable criminal offense or "have engaged in fraud or willful misrepresentation in connection with any official matter," among others. After the raids began, Trump tweeted that "The crackdown on illegal criminals is merely the keeping of my campaign promise. Gang members, drug dealers & others are being removed!" But among the first deported was Guadalupe Garcia de Rayos, a mother of two whose felony consisted of using a false social security number in 2008. She came to the country as a teenager, and was detained when she attended her annual check in with Immigration and Customs Enforcement officials. Her children provided a wrenching account of their family torn asunder by their mother’s deportation.
The January 25 EO on Border Security and Immigration Enforcement Improvements also affects refugees. The order directs the Department of Homeland Security to begin building a wall between the U.S. and Mexico and ends the “catch and release” program, expanding indefinite detention for undocumented migrants, including families. Authorities can also deport those apprehended at the border immediately, although many of them have international protection needs, especially those fleeing Central America’s violence plagued Northern Triangle countries – Guatemala, Honduras and El Salvador. Trump’s order runs afoul of the country’s non-refoulement obligations. Many presenting at the border have valid asylum claims, and Mexico, which receives aid from Washington to stem the flow of migrants reaching the U.S. border, has been unable or unwilling to protect rights and safety of migrants traveling through its territory.
Conditions in the Northern Triangle countries remain dire. On January 31, the NGO Global Witness issued a report on “Honduras: The Deadliest Place to Defend the Planet.” The report found that 123 people have been killed protecting their land in Honduras since the 2009 coup that ousted democratically elected president Mel Zelaya. “Our investigations reveal how Honduras’ political and business elites are using corrupt and criminal means to cash in on the country’s natural wealth, and are enlisting the support of state forces to murder and terrorise the communities who dare to stand in their way,” said Billy Kyte, a campaigner for the organization. The report highlights the murder of indigenous and environmental activist Berta Cáceres, an internationally acclaimed human rights defender who won the prestigious Goldman Environmental Prize. Her killing elicited international condemnation. Although the Honduran government has arrested the crime’s material authors, including several who had ties to the military, Cáceres’ family denounces the state’s failure to identify the intellectual authors of her murder.
Among the recommendations in the Global Witness report are the withdrawal of U.S. security aid to the country. “As Honduras’ biggest aid donor, the US should help bring an end to the bloody crackdown on Honduras’ rural population,” said Global Witness Advocacy Director Billy Kyte. “Instead it is bankrolling Honduran state forces, which are behind some of the worst attacks. The incoming US administration must urgently address this paradox, which is fueling, not reducing, insecurity across the country.” Shortly after releasing the report, two Global Witness employees working in Honduras were widely disparaged and threatened with legal action for their work. In a statement, Amnesty International said it is “concerned that the intensity of the smear campaign against human rights defenders, and the silence of the Honduran authorities rejecting statements that stigmatize their activities, facilitates physical attacks against them.”
Despite an abysmal human rights record in Honduras, Washington continues to provide funding to the government. Until deadly violence in Honduras abates, desperate refugees will continue to flee. And if the Trump administration has its way, desperate refugees will not find protection at the U.S. border. Human rights abroad and human rights at home are often closely intertwined.
Monday, February 13, 2017
There are many frightening but interesting articles on demagogues gaining power by creating fear in their constituents. It is not easy to suppress fear. Fear is common on both sides of the President's actions. Those who oppose White House propaganda are afraid. They are afraid for very different reasons than Trump constituents, but they are afraid nonetheless.
Trolling the internet has its benefits. Today I found a website posting discussing the Six Illusions from the Vedic Texts. One of the illusions is fear.
"The delusion of fear: The delusion that there is something to be afraid of is perhaps the most insidious of all. All negative emotions-anger, hatred, judgments, aggression and racial intolerance- ultimately stem from fear. The delusion of fear is the tool used by despotic leaders to gather the deluded behind them. Fear only exists when Love is absent. There is nothing that can ever harm you except the shadows you create in your own mind. "
The extent of fearless advocacy that has erupted since the inauguration is the most hopeful sign that democracy will survive. No doubt more tensions and hardships are coming. But advocacy for good will prevail.
Sunday, February 12, 2017
This summer, the Washburn Law Journal will be publishing a special Issue on the topic of America’s relationship with international law. Renowned International Law Scholar and former Dean of the Yale Law School Harold Hongju Koh will be writing the keynote article addressing international law and the process of treaty formation and compliance under the Trump administration. Several other renowned scholars writing in this area have already agreed to join Prof. Koh in contributing to this Issue.
The Editorial Board of the Washburn Law Journal is inviting other scholars to contribute companion articles for this special Issue.
Washburn Law is honored that Professor Koh will be introducing his keynote article during a lecture at the annual Foulston Siefkin Lecture Series on March 31, 2017. The Editorial Board of the Washburn Law Journal will provide material to selected authors to ensure that articles can, to some extent, be informed by and responsive to Prof. Koh’s thesis.
Interested participants should email an abstract of between 500-750 words by March 15, 2017. Abstracts should indicate whether the piece will be a full article or an essay-length submission, and should be emailed to Claire Hillman at firstname.lastname@example.org. They must include the author’s name, title of the paper, institutional affiliation, and contact information.
Authors already planning to submit articles this submission cycle that fit the topic of this Issue may also submit the article directly to the Claire Hillman, or send an email notifying the Journal that a relevant article has been submitted via ExpressO or Scholastica.
From the abstracts and/or articles submitted, the Editorial Board of the Washburn Law Journal will select 3-5 article-length or essay-length pieces to publish in Issue 3, Vol. 56 (August 2017). Authors will be notified of the acceptance of their submissions and proposals by March 20, 2017. A first draft of the completed article will be due no later than April 31, 2017.
Thursday, February 9, 2017
If you are teaching human rights, international law, constitutional law, immigration law or any combination of these topics, you by now have confronted the issue of whether the recent Executive actions suspending immigrant visas and restricting refugee entry violate international human rights law. This blog collects some of the growing number of resources for teachers and students looking to explore those questions in greater depth.
First, there have been a number of efforts to catalog the human rights violations contained in Trump's executive actions on immigration and refugee admissions. In a February 2 op ed in Al-Jazeera, the director of the ACLU human rights program, Jamil Dakwar, systematically reviewed "All international laws Trump's Muslim Ban is Breaking." Columbia Law School's Trump Human Rights Tracker also analyzes the human rights implications of the Executive Orders, among other Trump activities, and includes helpful links for further information. The Harvard Immigrants Rights Clinic has released a report on the impact of the recent Executive actions on asylum seekers, analyzing long-standing provisions of U.S. and international law, including refugee law and the Convention Against Torture.
Second, international actors and UN experts have themselves spoken out on the human rights implications of these executive actions. In early February, a group of UN Special Rapporteurs condemned the policy as a breach of US human rights obligations. The Inter-American Commission on Human Rights has also expressed deep concern over the Executive actions directed toward immigrants and refugees, urging the US to rescind the Executive Orders and to ensure that policies are consistent with US human rights obligations. The IACHR will have the opportunity to issue a more specific and detailed analysis if it responds to a request for an emergency public hearing on these issues, requested by the ACLU and dozens of other civil society organizations.
If you know of other resources, we encourage you to post them in the comment section of the blog.
Wednesday, February 8, 2017
There are signs that President Trump is right. He will make America great again.
For the first time in decades, Americans have revived the art of demonstration and protest. The Women's march brought out an estimated 5 million demonstrators worldwide. The demonstrations have empowered others to protest.
Since then, there have been daily protests triggered by the President's immigration executive orders. Other actions have been successful. Women messaged Nordstrom that they would no longer shop at the chain because the store sold Ivanka Trump products. The store announced that it will no longer sell Trump goods due to declining sales. (In further evidence that everything is personal with this president, he tweeted the unfairness of Nordstrom's decision.)
Protesters stopped using Uber because its CEO, Travis Kalanick, agreed to be part of Trump's economic advisory council. Employees challenged Kalanick, asking what it would take for him to leave the advisory council. Apparently, it took over 200,000 customers deleting their Uber accounts while New York taxi drivers advertised Uber's connections to Trump. Uber drivers, particularly immigrant drivers, made known their unhappiness while Uber's competitor, Lyft, pledged to donate $1,000,000 to the ACLU.
Many Americans are waking up to preserve democracy. Despite the accepted belief that politicians lie, many are unwilling to accept "alternative facts" and hate mongering.
Judges entered temporary restraining orders, barring implementation of Trump's immigration executive orders, the latest one entering a national ban on the travel ban.
So for now, many Americans have risen to the crisis. That has made America great again.
Here is the challenge. Americans have responded to crisis - to the outrageous and the dramatic. Will they sustain activism when the dramatic subsides and the constitutional threats are more subtle?
Tuesday, February 7, 2017
Editor's note: Prof. Cynthia Soohoo brings this post by her student Megan Lynch
In August 2014, a Wisconsin woman named Tammy Loerscher went to her local services agency because she believed that she was pregnant, but had serious medical conditions and could not afford health care. She was referred to the emergency room of a nearby hospital, where her urine was collected to test for pregnancy and for controlled substances. When the results returned “unconfirmed positive,” she was reported to child protective authorities. A temporary order of custody was issued to detain Tammy in the hospital. The next day a hearing was held over the phone. There was a lawyer representing the child protective agency, and a legal guardian to represent Tammy’s fetus, but Tammy herself was not given a lawyer, and the judge refused to delay the hearing to permit Tammy to find one. The judge ordered her to report to an inpatient treatment facility after being discharged from the hospital. No assessment was ever completed as to whether Tammy had a substance use disorder or needed inpatient treatment. When Tammy refused to enter inpatient treatment, she was ordered to serve 30 days in jail. While incarcerated she was denied medical care, held in solitary confinement, and threatened to be tased. Tammy was released after 18 days in jail subject to drug monitoring for the duration of her pregnancy. All subsequent drug tests were negative.
Last October, Tammy told her story to Seong-Phil Hong of the United Nations Working Group on Arbitrary Detention during the Working Group’s visit to the United States. An expert on arbitrary detention, Mr. Hong recognized that Wisconsin’s actions violated Tammy’s human rights and that there are better ways for the state to address concerns about fetal health. Late last year, the Working Group issued a statement emphasizing that confinement of pregnant women suspected of drug is inappropriate and that involuntary detention should be used only as a last resort, for the shortest period of time needed, and with appropriate due process protections. The group emphasized that “confinement should be replaced with alternative measures that protect women without jeopardizing their liberty.”
Despite the Working Group’s statement, every year, hundreds of pregnant women are involuntarily detained in the United States because they are suspected of drug use. Wisconsin is one of 5 states with laws that permit pregnant women to be detained for the supposed benefit of a fetus. These statutes were designed in the 1990s amid fears of the effects of in utero exposure to cocaine. Despite decades of research undercutting the belief that use of criminalized drugs is certainly and uniquely harmful to fetal health, these laws continue to be used to issue protective custody orders against pregnant women.
In addition to lacking scientific basis, laws that punish people who use drugs during pregnancy threaten the public health. As the American College of Obstetricians and Gynecologists has stated: “Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse.” Instead, threats of arrest and incarceration harm fetal and maternal health because they discourage women from seeking medical advice and prenatal care. The medical community in the United States and around the world universally condemn punitive approaches, recommending support and voluntary treatment where appropriate.
Not only do these laws harm the people they purport to protect, they also violate women’s fundamental human rights. Detaining pregnant women based on suspected drug use unfairly deprives them of liberty based on their pregnancy status. While civil commitment is permitted under U.S. law, the laws used to detain pregnant women lack the stringent standards required for civil commitment in other contexts, including a risk of imminent harm and due process protections. These statutes set no requirement that the state prove that a woman has a substance use disorder, or that the substance she is alleged to use is harmful to fetal development before detaining her. Nor do they require that the state consider alternative, less invasive measures before authorizing involuntary confinement. Rather, in most cases, simply testing positive for a drug is grounds for confinement in a treatment facility, regardless of whether it is medically appropriate.
Even if state intervention could be justified under extreme circumstances, these overbroad laws fail to provide adequate procedural protections. Indeed, in Wisconsin, a woman is not entitled to an attorney until appeal, even if she explicitly requests one. Further, the proceedings are sealed, closed proceedings, preventing public scrutiny of the process. This places the onus on women who have undergone this process to come forward to tell their stories.
The UN Working Group made clear that these laws run contrary one of the most fundamental rights under international law: the right to liberty and to be free from arbitrary detention. The right to liberty is deeply embedded in the American psyche, dating back to our nation’s birth and the Declaration of Independence’s promise of the right to life, liberty and the pursuit of happiness. The right to liberty would later be emphasized in the UN Declaration of Human Rights, and the US reaffirmed its commitment to liberty and freedom from arbitrary detention when it ratified the International Convention on Civil and Political Rights.
Because freedom from arbitrary detention is a fundamental right, international human rights standards require that individuals only be detained as a last resort, for the shortest period of time needed, and with appropriate due process protections. Any use of detention must be necessary and proportionate. According to the Working Group, Wisconsin’s law failed to meet these standards.
The Working Group’s recognition that detaining pregnant women suspected of drug use violates their human rights, and the widespread agreement that this practice actually threatens maternal and infant health, should be a call to reconsider our approach to substance use in pregnancy. Instead of spending money on counterproductive punishment and coercive treatment, we should ensure that women like Tammy are able to trust that the people they turn to will provide help, not handcuffs.
Monday, February 6, 2017
Acting Attorney General Sarah Yates last week instructed Justice Department lawyers not to defend the Trump Administration's executive orders on immigration. By that night, she was fired. Immediately following the order was rescinded.
Yates' letter was eloquent and clear in outlining her function within the government and how it differs from the role of White House legal counsel.
Yates' refusal to comply with orders contrary to accepted legal and human rights practice echoes the Justice Department's response to White House directives during Watergate. Then, White House disregard for the rule of law was rebuffed by Attorney General Elliot Richardson and others within Justice, leading to their firing. Those firings are known as the Saturday Night Massacre.
Just as Martha Davis' post noted Justice Scalia's remark that the Korematsu facts could happen again, we are reminded that executive attempts to dismantle fundamental legal structures is being repeated.
At the DC Women's March, Gloria Steinem spoke of President Trump's mental health problems. We now know that President Nixon was delusional and suffered from the same grandiosity as President Trump. But this time we were forewarned.
Sunday, February 5, 2017
by Jeremiah Ho
For the past 34 years, I have lived as a first-generation American immigrant. On my own terms, I can recall the seminal moments along the path to citizenship: arriving at age six with visa status along with my family at LAX and seeing for the first time a person with blonde hair; at age 10 printing my name on my green card in such large capital block letters that the immigration officer wouldn’t stop teasing me; and finally, at age 17, noticing the size and layout of the INS clerk’s cubical where I would be sworn into citizenship moments later—a small, unassuming, and transactional space that looked more or less like a bank teller’s booth.
But those moments of legal transformation punctuate all the other important days of being an immigrant, which in my heart are the days that compliment and give any true meaning to my naturalization papers, my driver’s license, my passport, my voter ID registration, my Social Security card—all the documents and papers I’ve carried with me as proof of my American permanence. What happened on those other days are the days of my immigration: like spending the night of my first Halloween trying to make that holiday my own by reciting “Trick or treat” without knowing where the phrase came from or what it meant but only aware of its candy-lottery effect; or how an In-N-Out double-double cheeseburger always tasted more satisfying on hot Los Angeles afternoons while I sat parked behind the wheels of my Dodge Plymouth, my first car at sixteen, which had windows you had to roll down, a triangular dent on the front bumper, and a busted air conditioning unit; or slow dancing with my high school prom date in our last month of senior year and wondering if she could tell exactly how different I was from the other boys; or witnessing my first journal article being published during law school and keeping to myself the secret that it was my coming out essay; or that quiet July afternoon just weeks before I started teaching at the University of Massachusetts when I arrived in Rhode Island, where I currently call home—the farthest on this planet from central Taiwan that anyone in my family, past or present, has ever traveled to live.
Future generations in my family will talk about us in the way that some people brag about how they have ancestors from the Mayflower. I am lucky to have that distinction—to be that Mayflower generation for my family—and to embody the last real connection to the Old World, while embracing my present one.
Immigration is part of human rights at home. President Trump’s order last week, suspending U.S. refugee entry for “nationals of countries of particular concern,” which applies to citizens of seven specifically-named Muslim-majority countries, contradicts the spirit and concept of immigration in the U.S. It is also a contradiction that we as a country have seen before.
In 1882, the U.S. passed the Chinese Exclusion Act, which was the first law to prevent a particular ethnic group from immigrating to the U.S. As a result, until the 1940s, persons of Asian descent were barred from becoming naturalized citizens in this country. In addition, responding to Japan’s attack on Pearl Harbor, the U.S. government, via presidential executive order, authorized the mass incarceration of Japanese-Americans, including U.S.-born citizens, on a claim of national security. On a personal note, the race-track in my hometown of Arcadia, California—the famous Santa Anita Race Track—had once been converted during WWII into the largest assembly center for Japanese Americans on their way to those internment camps. And had Congress never dismantled the Chinese Exclusion Act, my post here and now would not be possible.
In 2011 and 2012, Congress apologized for the Chinese Exclusion Act. Decades after WWII, a Congressional commission deemed the Japanese-American internment an injustice that was prompted by “racial prejudice, war hysteria, and the failure of political leadership.” In 1988, the Civil Liberties Act was passed to give monetary reparations and apologies to surviving Japanese-Americans who had been interned. We have traversed so far, and yet this present state of events seems to prove otherwise. We have made these missteps before. Why do we succumb to fear so easily? Last week’s executive order may harm our interests abroad by allowing terrorist groups to propagate the false impression that U.S. is at war with the Muslim world.
In addition, a lesson from 19th-century Chinese history reminds us that in a time of globalization and exchange, nationalistic hubris that motivates a desire for isolationist behavior will eventually harm a society. It is well known that one of the downfalls of the Ching dynasty was the psychological unwillingness of Chinese rulers to see past their own national and cultural pride in order to acknowledge the potentials of foreign powers. Their narrowmindedness crept into policy and rule, which kept the Chinese from advancing into the 20th Century politically and economically until only the decades of recent memory. Immigration and travel is what makes the U.S. strong and a leader in the world because the pluralism and diversity we gather from other countries keeps us current and on the cutting edge. It’s what has always helped to make America great.
We need real immigration reform that is in step with the spirit and tradition of the American experience and asylum. The executive order banning immigration and travel of individuals from certain countries in the Middle East harbors inconsistency from that spirit and tradition. We need to move beyond singling out individuals for their religion or national origin. We must not allow ourselves as a society to live in the dangerous space between pride and fear.
Thursday, February 2, 2017
JoAnn Kamuf Ward, Lecturer-in-Law & Associate Director, Human Rights in the U.S. Project, Human Rights Institute, Columbia Law School
It is hard these days to retain optimism. There is a war of ideologies playing out across the United States, and rights don’t seem to be winning.
Two weeks after an estimated three million people came out in support of Women’s rights, including the right to make personal choices about their bodies, Vice President Mike Pence spoke at a pro-life rally – the highest ranking official to ever speak at the event. Daily new executive actions are announced that threaten the rights people in our communities, and around the globe – advancing pipeline projects that risk great environmental and human costs, reinstating the global gag rule, and gutting healthcare protections – to name a few . Their reach is far and wide and the pernicious impacts too daunting to quantify.
Yet, there are seeds of hope. As noted on this blog, mayors, governors, and Attorney Generals are standing up to protect rights of immigrants, refugees and other vulnerable groups. And action to prevent an erosion of rights is not necessarily partisan. A number of Republicans governors are fighting to save parts of the Affordable Care Act, for example.
For the first time in my life, human rights are at the heart of the resistance against regressive policies across the country. Posters proclaiming “Girls just want to have fundamental human rights” were prolific at the post-inaugeration Women’s March in Washington.
This turn to framing and claiming women’s rights as human rights is more than just a rhetorical shift. It is a resounding call for a new approach to law and policy aimed at more equitable opportunities and outcomes. A rights-based approach defines discrimination against women broadly to encompass laws and policies that negatively affect women’s human rights. This approach must take into account the ways that a woman’s multiple identities, including her race, nationality, disability, age, as well as economic and social status, impact enjoyment of rights. A rights based approach to women’s rights also requires governments to affirmatively identify the factors that perpetuate inequality, and mitigate them. These principles are articulated in CEDAW, the global treaty for women’s equality.
And what is most encouraging is that local advocates and officials are embracing the treaty’s principles. While the U.S. has failed to ratify CEDAW, there is an uptick in state and local laws that explicitly incorporate these principles as their baseline. Many human rights advocates are familiar with the San Francisco CEDAW Ordinance, passed in 1998 to “integrate gender equity and human rights into city operations.” Perhaps less well known is the fact that as of this month, there are six ordinances based in CEDAW in cities and counties across the U.S. Pittsburgh, PA is the most recent city to adopt a law based on the international women’s rights treaty. Pittsburgh joined the ranks of Miami-Dade County, Florida, Honolulu, Hawaii, Berkeley and Los Angeles, California. More than 20 jurisdictions have also passed resolutions in support of using CEDAW at the local level, laying the groundwork for further action.
Los Angeles is a fascinating case, because the CEDAW law, passed in 2003 was relatively dormant until 2015 when Mayor Garcetti issued an innovative executive order. The EO puts executive heft behind implementation and accountability. It calls on each of the City’s 40+ departments and agencies to develop unique gender equity action plans and to identify a gender equity liaison. The EO also establishes a city-wide gender equity coalition, comprised of these liaisons, with the aim of creating a sustainable gender equity infrastructure within city government and institutionalizing CEDAW implementation. The action plans will inform budget decisions, and progress will be part of how managers and department heads are evaluated.
Pittsburgh’s Ordinance also builds on lessons learned from prior CEDAW initiatives. It creates a Gender-Equity Commission to identify gender concerns within city government and recommend solutions. The Commission is mandated to support the development and monitoring of gender equity action plans, make funding and recommendations to the mayor and city council, and facilitate gender equity trainings. Building off of San Francisco’s experience, the Ordinance contains detailed measures to counter violence against women and girls, an especially important measure since Allegheny County has had the most domestic violence homicides in Pennsylvania. Notably, Pittsburgh’s Ordinance is the first to explicitly include trans women, defining “women” as people who identify as women, even if not assigned the sex category at birth. Other cities and counties are taking CEDAW-based action too.
And while local CEDAW initiatives are at their early stages, and continue to evolve, they offer valuable lessons for how to implement human rights.
To distill these lessons, and offer guidance to local governments on ways to effectively strengthen human rights protections, the Columbia Law School Human Rights Institute published a new report this week, Gender Equity Through Human Rights: Local Efforts to Advance the Status of Women and Girls in the United States, which draws from conversations with human rights advocates and local officials involved in CEDAW implementation to date. The report describes key elements of efforts to commit to, and adopt CEDAW into local law, and offers key recommendations on effective strategies for operationalizing women’s human rights locally. It also underscores the importance of strong infrastructure and accountability, highlights the need for transparency and public participation, and emphasizes that successful human rights implementation requires local governments to allocate adequate financial and human resources to any local human rights initiatives.
It is clear we cannot rely on the federal government to lead in the arena of human rights. It is imperative that states and localities fill the gap and demonstrate that government must prioritize people, not profit, not popularity, and not political expediency.
Now, more than ever, we must lead with human rights values.
Do not back down. Do not retreat.
Wednesday, February 1, 2017
Note: The views expressed here are mine and do not necessarily reflect the views of any institution or organization that I work for or have an affiliation with.
Tuesday, January 31, 2017
Risa Kaufman & JoAnn Kamuf Ward, Columbia Law School Human Rights Institute
State and local officials can be a bulwark against the Trump administration’s efforts to undermine human rights. Their potential was on full display during Trump’s first weeks in office.
With immigrants as his prime target, President Trump signed a sweeping executive order temporarily suspending refugee admissions, indefinitely banning refugee admissions from Syria, and imposing severe restrictions for 90-days on immigration from seven Muslim-majority countries. Earlier, he issued an order to begin construction on a border wall between the U.S. and Mexico and ramp up immigration enforcement within the United States. For those “sanctuary jurisdictions” that resist this crack down on their residents by limiting cooperation with federal authorities on immigration enforcement, Trump ordered withholding of federal funding, thus carrying out a promise made on the campaign trail.
In the midst of these assaults on human rights, we’ve seen massive nation-wide organizing and public protests, remarkable collaboration to develop swift legal challenges, and courageous resistance and dissent from within the federal government. State and local officials from many jurisdictions are stepping in and stepping up, as well, vowing to protect local communities.
State and local efforts to protect human rights, particularly in the context of immigration, are not new. In recent years, sanctuary jurisdictions have emerged as a response to the over-enforcement of draconian federal immigration restrictions which separate families and disrupt lives and livelihoods. New York, Seattle, Boston, Los Angeles, Philadelphia, Chicago, and Washington, D.C. are among the 39 cities that have declared that they will not share information with federal authorities on immigration status or turn their citizens over to federal immigration authorities for minor infractions. Four states (California, Connecticut, Vermont, and Rhode Island) and hundreds of counties make up the ranks, as well. Jurisdictions take wide ranging and differing approaches to their sanctuary policies. What they share, however, is a principled commitment to keeping immigrant communities safe and to ensuring equal treatment of individuals.
In this new era, the stakes are increasingly high. Indeed, in the wake of the executive order threatening loss of funding, some sanctuary jurisdictions are rethinking their approach. Miami-Dade’s mayor ordered county jails to comply with federal immigration detention requests, citing the over 300 million dollars of federal funding at stake.
But others are standing firm. New York Mayor Bill De Blasio vowed to prioritize city policies that foster positive ties between law enforcement and immigrant communities. And he suggested that the City would sue the federal government if it withholds funding pursuant to the new executive order. Boston Mayor Marty Walsh said that Boston would not be intimidated by threatened federal cuts. New York State Attorney General Eric Schneiderman issued a guidance for local authorities on how to limit participation in immigration enforcement, and suggested model sanctuary provisions. California’s Governor Jerry Brown, too, has spoken out strongly about his state’s commitment to “defend everybody – every man, woman and child – who has come here for a better life and has contributed to the well-being of our state."
Other examples of state and local resistance to the Trump agenda have emerged. In response to the January 27th executive order halting refugee admissions and imposing a 90-day ban on entry of immigrants from seven Muslim-majority countries, sixteen state Attorney’s General issued a joint statement condemning the order as "unconstitutional, un-American and unlawful," and vowing to challenge the order in court. As of this writing, the Governor and Attorney General of Washington announced plans to file broad-based litigation seeking to invalidate the order, and the Attorney General of Massachusetts announced the intention to join in litigation brought by the ACLU.
The emergence of vocal state and local leaders, speaking out for foundational human rights principles of equality and non-discrimination, regardless of citizenship status, illustrates the critical role that state and local governments play in safeguarding human rights, particularly where the federal government fails to do so. Notably, a number of sanctuary jurisdictions have also made express commitments to promote and protect human rights. Boston and Seattle are among the eleven self-proclaimed “Human Rights Cities” in the United States – a number that continues to grow. Los Angeles and San Francisco have enacted ordinances based explicitly on international human rights treaties. Chicago has likewise committed to address domestic violence and children’s rights as human rights issues. Add to these examples innovative efforts by mayors, legislatures, and state and local agencies across the United States to incorporate human rights into local law and policy.
As these actions by mayors, governors, and Attorneys Generals illustrate, human rights do, indeed, begin in small places, close to home. And state and local officials will have an increasingly vital role to play in ensuring that the United States protects and respects human rights in the age of Trump.
Monday, January 30, 2017
Right about now in the spring semester, my Constitutional Law class reaches the case of Korematsu v. United States, 323 U.S. 214 (1944), in which the U.S. Supreme Court upheld the criminal conviction of Fred Korematsu, an American citizen who resisted relocation to an internment camp. In reviewing the criminal law, a six-member majority of the Court found that strict scrutiny applied to its review, yet upheld the law. According to the Court, "[p]ressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can." The Court concluded that these measures were not race-based, but necessitated by the dynamics of World War II. This year, in particular, my students want to know, "is Korematsu still good law?"
The Korematsu case has never been reversed, but most scholars and judges consider it to be discredited -- part of the anti-canon, as Professor Noah Feldman put it in a recent New York Times op-ed. No wonder, then, that alarm bells sounded when Trump acolytes began to invoke Korematsu as precedent that would support restrictions on Muslims and others based on race, religion and national origin.
January 30 is Fred Korematsu's birthday. Through the Korematsu Institute for Racial Justice, Social Equity and Human Rights, his family carries on his legacy as a brave individual citizen willing to speak truth to power. If your day-to-day routine makes it hard to prioritize individual acts of resistance, think about purchasing the Institute's 2017 calendar. It will provide a daily reminder of the importance of taking action to ensure that we do not go back to a time when the federal government and the Supreme Court could find that such race-based restrictions were constitutionally permissible.
In a 2014 speech to University of Hawaii Law Students, Justice Scalia responded to a question about the Korematsu case like the one posed by my own students: is it good law? "It was wrong," he opined, "but you're kidding yourself if you think the same thing will not happen again."
Sunday, January 29, 2017
Everyone who cares about human rights at home owes a debt of gratitude to the lawyers and law students who worked through the past weekend to provide assistance to the refugees and immigrants affected by the President's ill-conceived executive order. The hard work will continue, the front lines are everywhere, and we all have roles to play: showing up to be counted; supporting organizations doing the legal, organizing and factual reporting work; providing places for continued dialogue; comforting and strategizing with those who are vulnerable; and ensuring, through our teaching and writing, that rolling back human rights and civil rights protections never becomes the "new normal."
This spring, the University of Connecticut will provide an important forum for discussing these issues. The Senator Joseph Lieberman Spring conference on Human Rights, April 20-21, 2017 , is: Beyond Borders: The Human Rights of Non-Citizens at Home and Abroad. Panelists will address issues of citizenship, membership and "othering" through an interdisciplinary lens. For example, the April 21 morning panel titled "Rights Across Borders" is described as follows:
This session will explore the obligations that states have to non-citizens outside their borders, including obligations to receive refugees and to address the underlying factors contributing to flight. Panelists will address questions such as: Do international human rights obligations extend across borders? What obligations, if any, do states have to allow entry? Are state obligations more demanding if the conditions causing flight are linked to the state’s own actions? What have been the adverse human rights impacts of increased border controls and barriers to migration, and is there a human rights argument these should be lessened? Is current international law adequate to respond to new causes of displacement, such as climate change? To the growing crisis of statelessness? What are the gendered and racialized dimensions of international migration and immigration policies? Do states have obligations to address the underlying conditions that cause displacement and migration? Are international norms and institutions adequate to respond to the global crises of flight, migration, and statelessness?
More information on the conference is available here.
In the ongoing struggle for human rights at home, timely gatherings like this one help provide the intellectual grounding for forward motion, even though it's hard to see that horizon in the moment as lawyers and activists work round-the-clock to protect their clients and maintain the status quo.