Thursday, June 22, 2017
Editors' note: Guest Blogger Prof. Tim Armstrong from the University of Cincinnati College of Law sends this post discussing Special Rapporteur Cannataci's US visit.
Earlier this week, United Nations Special Rapporteur Joseph Cannataci arrived in the United States for an eight-day visit, slated to focus on “issues related to security and surveillance, big data and open data, health data, and personal data processed by private corporations.” Cannataci, a European academic, has written on privacy and technology issues, internet regulation, and intellectual property law, and has served as the U.N. Special Rapporteur on the right to privacy since 2015. His visit is certain to raise new, and enduringly controversial, political questions about the proper scope of legal protections for privacy in the United States.
Article 12 of the Universal Declaration of Human Rights (1948) declares that “Everyone has the right to the protection of the law against … arbitrary interference with his privacy, family, home or correspondence, [or] attacks upon his honour and reputation.” The particular form such protections take, however, lies largely within the discretion of state actors, who have responded in widely diverging ways.
For example, in the European Union, the Data Protection Directive (1995), soon to be supplemented by a new General Data Protection Regulation, defines quite broad individual privacy protections aimed principally against misuse of private data by large companies. Data about an individual may be processed only with that individual’s informed consent, subject to fairly narrow exceptions. Processing data that would reveal an individual’s “racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, … health or sex life” is barred entirely. Furthermore, individuals retain ongoing rights to object to the use of information about themselves even after it has been collected.
No comparable comprehensive regulatory framework exists in the United States. Privacy law in the United States rests upon a patchwork of constitutional protections (such as the Fourth Amendment’s protection against unreasonable searches), common-law rules (such as tort and employment law doctrines protecting against some intrusions on privacy), and both state and federal statutory rules (most of which are relatively narrow and apply only in certain fairly technical circumstances). For example, the federal Privacy Act, despite its somewhat sweeping title, regulates only the disclosure of specified records by the government (subject to a host of exceptions), not the collection of information, and does not regulate private parties at all. The Electronic Communications Privacy Act, another federal statute, rests upon a distinction between “intercepted” and “stored” communications that technological developments have at least partly erased. Furthermore, the European recognition of ongoing privacy interests in data following collection is largely missing from United States law: individual complaints about invasion of informational privacy in the United States often fail because the court finds that the individual consented at some point in the past to the collection and use of her data, and thereby waived any right to complain about how that information is subsequently used.
Two further issues will necessarily cloud any review of the state of privacy protections in the United States. First, the collection and processing of private individuals’ data represents a profitable sector of the national economy. Concern with the state of the information processing industry manifests in many ways in public policy, including the recent resolution allowing Internet Service Providers to continue marketing user data, or the 2016 “privacy shield” agreement between the European Union and the United States to allow U.S. companies to process EU citizens’ data. Advocates for more expansive protections for informational privacy in the United States unavoidably encounter the objection that their proposals would yield a drag on commerce.
Second, issues of public safety (itself a protected interest under Article 3 of the Universal Declaration of Human Rights) and national security frequently are invoked to justify legal restrictions on individual privacy interests. Following the terror attacks of September 11, 2001, Congress passed (and subsequently reauthorized) the USA PATRIOT Act, giving federal law enforcement and intelligence agencies new surveillance powers. The pervasive extent of the surveillance system that had grown up, largely unobserved, in the United States was revealed in 2013 by fugitive NSA contractor Edward Snowden; public outcry following the Snowden revelations led Congress to (at least nominally) rein in certain of the government’s surveillance activities in the 2015 USA FREEDOM statute. Although Congress may regard the matter as settled, disagreement over the proper balance to be struck between individuals’ demands for privacy and government intelligence agencies’ need to detect and disrupt possible attacks remains an enduring feature of the public debate in this area.
Against this complex backdrop, it would surely be too optimistic to expect the visit of the Special Rapporteur to uncover a hidden consensus on the proper direction of public policy on the subject of privacy. Nevertheless, raising public awareness of this frequently overlooked issue, and illuminating the extent to which both public policy and private economic activity implicitly depend upon comparatively weak privacy protections in this country, would itself represent an accomplishment that should not be minimized.
Wednesday, June 21, 2017
Women’s Human Rights and Migration, has just been published as part of University of Pennsylvania's Human Rights book series. In the book, Prof. Sital Kalantry describes how the U.S. Congress and state legislatures across the country have used stereotypes Indian-Americans and Chinese-Americans to restrict women’s rights to choose. The legislators misuse information about people living in other countries to argue that certain minority groups are aborting female fetuses. Using new national census data and survey data, the book presents evidence that some Asian Americans desire to have balanced families with both girls and boys. Practices like sex-selective abortion and veiling that occur in the country of origin of a migrant but also emerge or are attributed to migrants in their country of destination call into question traditional universal approaches human rights. Kalantry argues for a transnational approach to domestic regulation on migrant women’s practices. Read more about the book here. You can look inside the book and purchase at Amazon.
Tuesday, June 20, 2017
by Cindy Soohoo
Since the Presidential election last fall, we’ve seen intensified attacks on women’s reproductive health. In the current political environment, it’s even more crucial that U.N. human rights bodies call out the U.S. when it violates human rights. Yesterday, United Nations human rights experts sent a letter to the U.S. government expressing concern about criminalization of abortion and the declining access to reproductive health services. The letter welcomed state efforts to turn back the “negative trend on women’s reproductive rights” and urged states to adopt laws to help ensure that women’s human rights are respected, like the Reproductive Health Act currently pending in the New York state legislature.
Human rights bodies have repeatedly recognized that women’s access to reproductive health services implicates multiple human rights including the right to dignity, autonomy, personal integrity, health, non-discrimination and freedom from cruel, inhuman and degrading treatment. Given the range of rights involved, U.N. experts on health, violence against women, and discrimination against women banded together to write a joint letter to the U.S. expressing their concerns.
The experts’ letter focused on two current threats to reproductive rights – “the failure to provide adequate access to services for the termination of an unwanted pregnancy” and the “criminalization of abortion.” Last year, the U.N. Working Group on Discrimination Against Women criticized the “ever-increasing barriers . . . created to prevent [women’s] access to abortion procedures” in the U.S. Yesterday’s letter reiterated these concerns and specifically focused on laws that allow women to be criminally prosecuted for terminating their own pregnancies.
The human rights experts emphasized that criminalizing women for having abortions “instrumentalizes women’s bodies, undercuts women’s autonomy and puts their lives and health and risk” because women who experience complications will not seek medical help for fear of prosecution. The letter also warned that because symptoms of spontaneous miscarriage and self-induced abortion can be similar criminalizing abortion often results in “collateral consequences, including the imprisonment of women who have had miscarriages.” Last month, the experts criticized an El Salvador law criminalizing abortion noting that, in addition to violating the rights of women who chose to terminate their pregnancies, the law resulted in the arrest and prosecution of women who suffered miscarriages.
Human rights law emphasizes that governments must ensure that people can meaningfully access their human rights. In the U.S. context, this means that a constitutional right to abortion is not sufficient if women cannot actually access abortion and family planning or are punished or penalized for their reproductive health choices. The experts expressed concern that criminal prosecution of self-induced abortions “has discriminatory effects on economically disadvantaged women whose limited resources render them unable to access safe reproductive health services in the same manner as privileged women.”
In addition to the onslaught of anti-choice laws that are being passed in Texas and other states, laws criminalizing women who have abortions are often remnants of laws passed before Roe v. Wade that were never repealed. For instance, New York still has a pre-Roe law on the books that imposes criminal penalties on women for self-inducing an abortion. It also criminalizes health care providers who perform abortions after 24 weeks -- even if the abortion is necessary to preserve a woman’s health or if the fetus is not viable. Human rights bodies have recognized that forcing a woman to continue a pregnancy knowing that the fetus she is carrying will not survive is cruel, inhuman and degrading treatment. And denying a woman access to an abortion when necessary to preserve her health violates the U.S. Constitution.
The experts’ letter is addressed to the U.S. government, but the experts aren’t holding their breath awaiting a reply from the Trump Administration. Instead, the letter urges New York to pass the Reproductive Health Act, which would repeal the criminal abortion provisions, and encourages similar state efforts to bring their laws in compliance with human rights law.
Monday, June 19, 2017
As I wrote in an earlier post, the Special Rapporteur on Trafficking, Maria Grazia Giammarinaro conducted an official visit to the U.S. last December. Her final report issued last week emphasizes that the U.S. needs to do more to address inadequate labor protections, restrictive immigration policies, discrimination and poverty, which are the root causes of trafficking. She also criticizes U.S. laws and policies that criminalize trafficking victims for acts they were forced to commit.
The report had a strong labor focus, noting the U.S.’s “limited identification of trafficking for labor exploitation and forms of trafficking other than for sexual exploitation.” It emphasizes that “economic inequality and social exclusion, discrimination, organised crimes such as drug trafficking, and insufficient labour protections are causes of vulnerability to human trafficking.” As a result many workers “have been compelled to work in precarious or informal employment, on short-term or part-time contracts, on temporary visa if they are migrants rendering them vulnerable to human trafficking.” In particular, the report emphasized that non-immigrant visas that tie immigrants to an employer create vulnerabilities for abuse and trafficking. The report noted that “40 percent of labour trafficking reported to the national hotline/textline are linked with temporary visas.”
The report recommends that the U.S. strengthen protections for workers, including laws that require fair terms of employment and increase the minimum wage. It also states that the U.S. should ensure that migrant workers with temporary non-immigrant visas are free to leave or change employment or return to their country of origin.
The report recognizes that criminalization of prostitution also makes people more vulnerable to trafficking. Prostitution related arrests and raids create “fear of arrest, prosecution or deportation” which increases the insecurity of trafficking victims and forces them “to work underground in dangerous environments; which in turn renders their identification as victims of trafficking more difficult.”
In addition to making it more difficult to identify trafficking victims who fear coming forward, criminalization of victims of trafficking for acts they were forced to commit violates international standards. The report emphasizes the U.S. should fully implement the “non-punishment principle” which requires that “trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries . . . , or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.” The report also notes with concern that in many states minors can be prosecuted for prostitution/sex work. The report recommends that the U.S. decriminalize the selling of commercial sex and raise the age of criminal responsibility to ensure that children under 18 are immune from prosecution for prostitution/sex work.
In order to mitigate the impact of criminalization, the Special Rapporteur welcomed state efforts to adopt laws that allow trafficking victims to vacate convictions for crimes committed as a result of their status as trafficked persons. However, she criticized gaps in laws including only providing relief for minors or limiting the types of offenses that can be vacated and recommends that vacatur laws be adopted that allow vacatur of all convictions that result from being subjected to trafficking.
Sunday, June 18, 2017
On June 12, a unanimous three judge panel of the United States Court of Appeals for the Ninth Circuit declined to reinstate Trump’s revised executive order seeking a 90-day travel ban for nationals from six predominantly Muslim countries. It was the second appeals court to do so.
The administration has already appealed a decision issued last month by the Fourth Circuit to the Supreme Court. The Fourth Circuit’s decision relied on the First Amendment’s Establishment Clause, finding that the president’s action “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
In contrast, the Ninth Circuit relied on statutory grounds, not reaching Constitutional arguments. “We need not, and do not, reach the Establishment Clause claim to resolve this appeal,” the court opined. Contrary to Trump’s presumption of untrammeled authority, the judges ruled that “Immigration, even for the President, is not a one-person show…National Security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power.” Trump, they found, exceeded his authority, because his justification for the ban was inadequate.
“The Order does not tie these nationals in any way to terrorist organizations within the six designated countries,” the panel wrote. “It does not identify these nationals as contributors to active conflict or as those responsible for insecure country conditions. It does not provide any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness.” Accordingly, the order “does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality.”
The judges cited a June 5 tweet from Trump, in which he said "That's right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won't help us protect our people!" The panel cited White House press secretary Sean Spicer's confirmation that the President's tweets are "considered official statements by the President of the United States."
As former Justice Department spokesman Matthew Miller told the Washington Post, Trump has “lost on statutory grounds. He’s lost on constitutional grounds. He’s lost in the east, the west, and even on an island floating in the Pacific. He’s lost on his first order, and he’s lost on his second ‘politically-correct, watered down’ version.” And he concludes that “For a president who promised we’d get tired of all of his winning, his travel ban has been a catastrophe from day one.”
Spicer remained unbowed. “Frankly, I think any lawyer worth their salt 100 percent agrees that the president is fully within his rights and his responsibilities to do what is necessary to protect the country,” he said. “I think we can all attest that these are very dangerous
times and we need every available tool at our disposal to prevent terrorists from entering the United States.”
Despite the use of his tweet in the Ninth Circuit’s decision-making, Trump doubled down on the outbursts that hurt his case, saying on Twitter, “Well, as predicted, the 9th Circuit did it again - Ruled against the TRAVEL BAN at such a dangerous time in the history of our country. S.C.” His words may come back to haunt him, again.
Friday, June 16, 2017
The 2017 International Human Rights Clinicial Conference was hosted by Cornell Law School in Ithaca, N.Y. In April 28 and April 29th of this year. A working group consisting of Sital Kalantry, Elizabeth Brundige, Sandra Babcock, Sarah Knuckey, Jayne Huckerby, and Sarah Paoletti drafted a statement in response to the events we are witnessing in the United States
today. Participants of the conference discussed and revised the statements in small groups. Based on the feedback of the conference participants, the working group revised and finalized the statement. While the statement reflects the position of human rights clinicians and people who operate centers, we have opened it up for signature to anyone who supports the content of the statement.
The statement begins:
"We are law school educators who teach in clinics and operate centers and institutes that work with and on behalf of individuals, organizations, and communities to promote human rights. We believe in the inherent dignity and equality of all human beings. We are deeply concerned that the recent rhetoric and actions of many leaders in the United States government are harming people and damaging decades of effort and progress in promoting respect for human rights."
The statement goes on to list commitments by the signatories to preserve and promote human rights globally as well as within the US.
For example the educators pledge to "promoting the values that inspired the Universal Declaration of Human Rights and the rights and obligations set forth in international human rights treaties."
To read the full statement or to sign on, click here.
Thursday, June 15, 2017
by Rachel Rosenbloom, Professor, Northeastern University School of Law, guest contributor
The Supreme Court’s decision in Sessions v. Morales-Santana has caught the attention of immigration law scholars as a rare instance in which the Court has decided a case involving the Immigration and Nationality Act (INA) on constitutional grounds.
The Supreme Court is notoriously squeamish about striking down immigration statutes on constitutional grounds. This aversion has been evident since the Court decided its very first immigration cases in the late nineteenth century, upholding various aspects of the Chinese Exclusion laws – including one provision that required Chinese immigrants to prove the duration of their residency by the testimony of a “credible white witness” -- and thus establishing what has come to be known as the Plenary Power Doctrine. As the Court has often repeated throughout the intervening years, “In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” Zadvydas v. Davis, a 2001 case in which the Court held that the government may not detain immigrants indefinitely without performing periodic custody reviews, represents the high water mark of the Court’s constitutional jurisprudence within the area of immigration law. Even in that case, however, the Court did not actually strike down the detention statute on constitutional grounds but rather bent over backward to read a (non-existent) custody review requirement into the statute, citing the doctrine of constitutional avoidance.
In light of this history, it is refreshing to see the Court in Morales-Santana declare unequivocally that the gender-based distinction in the laws governing transmission of citizenship to a child born abroad – imposing an easier standard for those born to unwed U.S.-citizen mothers than for those born to unwed U.S.-citizen fathers – “is incompatible with the requirement that the Government accord to all persons ‘the equal protection of the laws.’” The clarity and directness of this ruling has prompted some to speculate that the Plenary Power Doctrine may be dead.
But to paraphrase Mark Twain, reports of the death of the Plenary Power Doctrine are greatly exaggerated. There are no indications that the case will have broad implications regarding the application of the immigration laws to noncitizens. Justice Ginsberg is careful to distinguish Morales-Santana’s claim from that at issue in Fiallo v. Bell, a 1977 case involving another gender-based distinction (again drawing a line between unwed mothers and unwed fathers) in the statute governing petitions for immigrant visas for children of U.S. citizens. In Fiallo, the Court applied a very lax standard of review (Justice Ginsburg refers to it as rational basis, but it was arguably even less searching than that), citing Congress’ “exceptionally broad power” with regard to the admission or exclusion of noncitizens. Justice Ginsburg distinguishes Morales-Santana as a case involving citizenship rather than the admission of immigrants, thus greatly limiting the scope of the decision.
Although Morales-Santana might not signal a huge shift on plenary power, it does contain one significant new development. The Court had previously, in Nguyen v. INS, ducked the question of which standard of review to apply to an equal protection claim involving gender-based distinctions in the citizenship laws, holding that the provision at issue in that case would survive under intermediate scrutiny and that “[g]iven that determination, we need not decide whether some lesser degree of scrutiny pertains because the statute implicates Congress' immigration and naturalization power.” In Morales-Santana, in contrast, Justice Ginsburg (a dissenter in Nguyen) leaves no doubt that at least in cases involving citizenship, the Court will apply a more stringent standard of review.
by Deborah L. Brake, Professor of Law and John E. Murray Faculty Scholar, University of Pittsburgh School of Law, guest contributor
Although the remedial issue in Morales-Santana is admittedly a thorny one, the Court’s analysis, limited to a determination of what the legislature would have wanted, fails to do justice to the full scope of equality rights and what is required to remedy violations of such rights. In deciding the remedial issue, the Court should have considered two questions: first, does the leveling down option fully remedy the constitutional injury? And second, does the leveling down response punish and retaliate against the assertion of equality rights?
The Court skates around this first question, but does not give it sufficient attention. The Court implicitly assumes that the equal protection injury begins and ends with the differential treatment of mothers and fathers. Admittedly, the Court rightly acknowledges that the injury extends beyond the tangible benefit itself – the conferral of citizenship – and encompasses the stigma resulting from the differential treatment. Hence, the majority’s disagreement with the two concurring Justices, Justice Thomas and Justice Alito, who would have left the constitutional violation in place because, in their view, striking the differential treatment would not alleviate any injury to the citizen-father, since he would still fail to confer citizenship to his offspring. As the Majority rightly recognizes, the concurring Justices’ approach would leave the stigmatic harm from the differential treatment unremedied. But the majority stops short of discerning a broader injury of stigma and stereotyping that may, conceivably, remain from the discrimination, even when the differential treatment ends. Such harms may continue in the wake of leveling down remedies, as in Jackson, Mississippi, when the swimming pools closed, or when the school in the National Honor Society case denied everyone the privilege of honors recognition. The sting of stereotypes (for example, in the latter example, that “good girls” don’t get pregnant, or in the swimming pool case, that persons of color are not fit to swim with white persons) can remain even when the differential treatment ends.
But leveling down does not always, or necessarily, reinforce stereotypes that are in tension with equality norms. A footnote in the Court’s opinion notes that in Title VII cases invalidating employer policies granting preferential treatment to women – such as gender-specific minimum wages, break times, and leave policies – courts have not required employers to extend such “perks” to male employees. Surely the Court is correct about these cases, but not because the remedy imposed by the courts comported with the defendant’s intentions. The correctness of the result has more to do with the fact that, as the Court noted, such “perks” may have the veneer of favoring women but in reality stigmatize women and make employers less likely to hire them. In these cases, the nullification remedy did not reinforce stereotypes devaluing women workers, but rather sent the message that women belong in the workplace on equal terms as men. That this result also likely conforms to employers’ remedial preferences may be glossing on the remedial cake, but should not be the dispositive factor.
The second consideration is more closely related to legislative intent, but not in the way the Court assumes, asking only what Congress would have intended had it known that a male plaintiff would prevail in lawsuit to strike the offending provision. Instead, the relevant inquiry should ask whether, at least in part, the legislature intends nullification as a way to punish and discourage the assertion of equality rights. To return to the Title VII cases the Court flagged, the remedy nullifying preferential treatment for women was compatible with anti-discrimination norms in those cases partly because it likely did not punish the workers challenging the discrimination. With special treatment nullified, work and wages would be shared more equally, potentially benefiting male workers, who had been left holding the bag when women were given special breaks and benefits. At the same time, as noted above, nullification ended the stigma devaluing women workers as special risks to employers and in need of special rules. On the other hand, in the Title IX example where a school threatens to cut male athletes if women sue for equal sports opportunities, the leveling down threat raises concerns about retaliation if this option is driven in part by a desire to squelch the discrimination claim and punish the women for pressing their rights. Granted, it is not always easy to determine whether a leveling down move is motivated by a retaliatory intent or a legitimate reason—though the difficulty of discerning an actor’s intent is hardly unique to the remedial issue. The point here is that a long string of Supreme Court precedent has recognized that a proscription on retaliation is implicit in the equality norms underpinning anti-discrimination law; courts should ensure that the remedies to discrimination comport with this principle.
The analysis advocated here often eludes easy answers and this case is no exception. My disagreement with the Court is not necessarily that it reached the wrong result, but that it short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights. The touchstone should not be the remedial preference of the discriminator, but an analysis of whether nullification fully remedies the injury of the discrimination and whether it functions to punish the assertion of equality rights. The Court should have considered whether reverting to the stricter residency requirements for all parents fully eradicates the underlying gender stereotypes about the strength of maternal bonds and the low expectations for paternal influence on children’s values. Given that Congress was willing to ease up on the residency requirements for citizen mothers, does its abandonment of the more lenient rule if it had to include fathers reflect a deep-seated resistance to viewing unwed fathers as legitimate parents, regarding them as insufficiently bonded to their children to deserve citizenship-conferral rights? Or would it reflect a judgment, free from gender stereotypes, that the longer residency is appropriate for all parents in order to ensure the transmission of American values? The relationship between the constitutional injury and the remedy may be difficult to parse, but it is not determined merely by asking the question of what the legislature would have wanted.
The second consideration raised by leveling down remedies – that such responses can function as retaliation – also lacks the virtue of simplicity. Assuming the Court is right about Congress’ preference for nullification in the event of constitutional infirmity, does that preference stem from a desire to punish and deter challengers? Or is it because Congress determined that the longer residency period would best ensure the conferral of American values that should attach to citizenship? Again, this question may not lead to obvious answers (though it is perhaps no more elusive, in the end – indeed, the Second Circuit below opted for a different reading of legislative intent), but it is a different question than that of what Congress intended.
In the final analysis, perhaps the difficulty of these questions justifies a preference for extension over nullification, placing the burden on the defendant to prove that nullification neither perpetuates the stigmatic and stereotyping injuries of the underlying discrimination nor retaliates against the challengers. A more complete analysis of leveling down remedies might have helped flesh out the normative underpinnings of the preference for extension acknowledged, but not ultimately applied, by the Court, and its relationship to legislative intent.
By limiting the inquiry to a search for legislative intent, the Court did a disservice to the development of equality law. The Court’s analysis of the remedial issue in Morales-Santana leaves intact the force of leveling down as a strategy for derailing equality rights, primed to resurface and perpetuate inequality, and punish those who challenge it, on another day, in another case.
Editors' note: Part 1 of this blog is available here. This is one of a series of blogs analyzing the decision in Sessions v. Morales-Santana from a range of perspectives. Other entries in the series can be found here , here and here.
Wednesday, June 14, 2017
by Deborah L. Brake, Professor of Law and John E. Murray Faculty Scholar, University of Pittsburgh School of Law, guest contributor
Luis Ramon Morales-Santana, the son of a U.S. citizen father and an alien mother who were not married at the time Morales-Santana was born outside of the United States, succeeded in challenging the constitutionality of the Immigration and Nationality Act (INA), which required a longer U.S. residency period for citizen fathers than citizen mothers to confer citizenship to their natural born children in such circumstances. Although Morales-Santana won his case, Sessions v. Morales-Santana, in a Supreme Court decision handed down on June 12, 2017, he emerged from his victory no better off than if he had lost. Moreover, after the Court’s ruling, unless Congress takes action to legislate a different result, children born to U.S. citizen mothers in the future in similar circumstances—outside the United States to unmarried parents including one U.S. citizen and one alien—will have their U.S. citizenship determined under the stricter set of rules that previously applied only to citizen-fathers.
Morales-Santana, who was born in the Dominican Republic in 1962 and has lived in the United States since the age of thirteen, would not now be facing deportation for his troubles with the law if his father had been subject to the same rules that the INA applied to U.S. citizen mothers in transmitting citizenship to their children. Although the Court held that the sex-based different treatment of fathers violated the equal protection clause, it decided that the proper remedy is to nullify the more lenient residency rules that the INA applied to unwed citizen mothers rather than extend that leniency to unwed citizen fathers.
The remedy that the Court ordered – nullification rather extension of the more favored treatment – is a classic example of leveling down in response to a violation of equality rights. The problem of leveling down – that everyone can be made worse off from the successful invocation of equality rights – is endemic to equality law, whether its source is constitutional or statutory. One of the most famous examples of leveling down occurred when Jackson, Mississippi, after losing a case challenging the city’s operation of racially segregated swimming pools, decided to close the pools rather than integrate them. The disappointed African American residents of Jackson sued, challenging the pool closure as a violation of the equal protection clause. The Court disagreed, finding the city’s response, closing the pools for everyone, was racially neutral and ended differential treatment.
This tried and true tactic is not merely a remnant of segregation. Leveling down surfaces periodically as a response to equality claims. In Title IX litigation challenging unequal opportunities for girls and women in sports, schools often threaten that such claims will only result in their taking opportunities from male athletes, ending the discrimination with no benefit to female athletes, and leaving them holding the blame for making male athletes worse off. In an example from another case, a pregnant girl who was kicked out of the school’s National Honor’s Society for becoming pregnant successfully sued her school for sex discrimination. Instead of responding by letting the girl participate, the school ended its participation in the National Honor Society altogether – it leveled down. Left unchecked, leveling down can be an effective strategy for de-railing equality claims altogether. Worse yet, in some cases (though not all), the leveling down can exacerbate the stereotypes and injuries from the original discrimination. In Jackson, Mississippi, for example, the empty swimming pools likely compounded the sting of the stigma from the original segregation.
Leveling down is a thorny and under-analyzed response to discrimination, and one that courts often fail to give sufficient attention. The Morales-Santana decision is no exception. Justice Ginsburg’s opinion for the Court discerns two principles for deciding between nullification and extension. One the one hand, the Court identifies a general preference for extension. On the other hand, the Court confidently asserts that the choice between nullification and extension turns on legislative intent, and how the legislature, had it known that the offending provision would be found unconstitutional, would cure the violation. The Court’s invocation of these two principles is somewhat mystifying. The Court does not identify any source from which a preference for extension derives, other than to cite its own cases blithely asserting that such a preference exists (again, without identifying its source). Nor does the Court attempt to square the preference for extension with the decisive role it gives to legislative intent. If legislatures are more likely to favor extension over nullification in their intent, there is no attempt to prove this as an empirical matter. In the end, the preference for extension seems to drop out of the picture in the face of the Court’s discernment of a legislative intent to nullify rather than extend the favored treatment.
By retreating to congressional intent and abandoning the general preference for extension, the Court does a disservice to the development of equality law, leaving no discernible check on leveling down where the entity that discriminated (in this case, the Congress) desires to remedy the violation by removing the benefit from all rather than extending it to the disfavored group. Because the Court viewed Congressional intent as dispositive, the Court treated the remedy as a closed issue, having discerned a congressional preference for nullification.
Tomorrow, in part two of this post, I will offer two considerations that should have informed the Court’s decision, and argue that the analysis advocated here comes closer than the Court’s approach to ensuring that leveling down remedies are compatible with the principles of equality law.
Tuesday, June 13, 2017
by Nancy Dowd, guest contributor, University of Florida School of Law, Fulbright Distinguished Professor, Raoul Wallenberg Institute
Sessions v. Morales-Santana implicates fatherhood, nonmarital families, and children’s citizenship. I focus my comment on its implications for how we think about fathers and fatherhood.
It is possible to fit this case within the mosaic of U.S. Supreme Court cases on fatherhood and try to make it all make sense. See, e.g., Stanley v. Illinois, 405 U.S. 645 (1972); Quilloin v Walcott, 434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380 (1979); Lehr v. Robertson, 463 U.S. 248 (1983); Michael H. v Gerald D., 491 U.S. 110 (1989); Nguyen v. INS, 533 U.S. 53 (2001); Flores v. Villar, 564 U.S. --- (2011).Those cases revolve around a differential standard for non-marital biological fathers and mothers in terms of constitutional protection for their role as parents. Mothers have full constitutional status from the birth of their child; fathers do not. These cases are built on a stereotyped foundation that assumes fathers in general, but particularly non-marital fathers, are uninvolved in the care of their children. Because of that assumption, fathers have neither responsibilities nor privileges. Statutes may confer equivalent status if they choose, but it is not constitutionally required. Non-marital fathers gain constitutional status and protection only if they have done something more than simply have a biological connection to a child, the so-called “biology plus” standard.
In the immigration setting, based on Nguyen v INS, this has made it permissible for the federal government to differentiate between citizen mothers and citizen fathers in terms of conferring citizenship on their children. In Nguyen, the requirement that fathers legitimate their child, establish paternity, or have a paternity order judicially entered, prior to the child’s eighteenth birthday, was justified based on the differential circumstances of the parent’s knowledge of the child’s birth and therefore the opportunity to establish a relationship deemed important to transfer of citizenship. The rationale for the case was founded in stereotypic language that assumed fathers heedlessly create children (or are misled into doing so by conniving mothers), and are unlikely to engage in their care even if they have knowledge of their existence. Requiring a father to do something, then, is necessary to counter this default assumption of how they will behave, and “equalize” them as parents to non-marital mothers. Interestingly, despite the articulated state interest in the relationship between the citizen father and the child, no actual relationship is required. Ironically, of course, the case involved a citizen father who was involved in raising his child as a single parent father. Nevertheless, not only did the Court accept this differentiation but also applied a relaxed standard of review closer to the lowest standard of equal protection analysis, rather than the heightened scrutiny of the Court’s sex discrimination cases.
The issue in Morales-Santana allows the Court to bypass this thorny ground of its jurisprudence on fathers, and Justice Ginsburg's decision is careful to make this distinction. The case is focused on differential periods of residence in the United States in order to confer citizenship on one’s child. The comparison between fathers and mothers in the case has to do with the parents’ strength of attachment to their country. Mothers establish that attachment sufficiently in a year, while fathers need 10 years. The case revolves around this issue of the timing necessary to attain the status to confer citizenship on one’s children. Unlike Nguyen, it has nothing to do with assumptions about caregiving or parent-child relationships as a foundation for conferring essential citizenship values. Nevertheless, as the opinion acknowledges. the differential standard implicitly takes its cue from the view that non-marital children are the child of the mother, or that men might potentially generate a host of children because of presumed sexual activity and irresponsibility, so therefore a stricter standard is justifiable. So on the one hand, a decision in this case, unfortunately, does not herald an opportunity to revisit the case law about fathers that is steeped in stereotypes; on the other hand, it seems unmistakable that stereotypes about men and fatherhood pervade the case.
Differentiating between fathers and mothers is an issue that deserves reexamination. The biology plus standard both asks too much and asks too little. It asks too much because it requires something more than biological connection to recognize fathers as equal constitutional parents after birth. The biological link (and perhaps other non-biological links, like intent and social fatherhood) should be sufficient to trigger procedural protection to notice and an opportunity to be heard, and the opportunity to qualify for substantive rights. Because substantive rights must be balanced against the rights of the mother and the rights of the child, typically addressed by the best interests standard, this does not mean automatic substantive rights. Biology alone, however, should be sufficient for this triggering function to notice and an opportunity to be heard.
At the same time, the biology plus standard asks for too little. Grounded in a time when gender roles imagined a breadwinner, economic father uninvolved in the social care of his children, very little is represented in the cases as satisfying the “plus” standard. Indeed, no meaningful discussion of the standard has occurred. We should ask that fathers meet the same high standard of care that is expected of mothers.
In Morales Santana, a standard of gender neutrality from birth forward would mean equal privileges between fathers and mothers to confer citizenship on their children. Whatever standard is applied in addition to genetic connection should be applied to both mothers and fathers.
Morales Santana may not be the vehicle to address this the broader issue of fathers’ rights, but it reminds us that these issues remain and undermine efforts to equalize parenting for mothers and fathers, to engage fathers in a more meaningful standard of care, and to reorient masculinities more generally. The opinion's strong statement of gender equality may yet be helpful in the future to move toward that end, to the benefit of fathers, mothers, and most importantly, children.
This blog is part of our Scholarly Voices symposium on Sessions v. Morales-Santana. The first entry, Sessions v. Morales: Two Cheers for Equality, is here. For Deborah Brake's insightful analysis of the remedial issue in the case, look here and here. Rachel Rosenbloom's expert analysis from an immigration perspective is here.
Monday, June 12, 2017
On Monday, June 12, the Supreme Court released its opinion in Sessions v. Morales-Santana, an equal protection challenge to sex-based distinctions in citizenship law -- specifically, differential requirements regarding physical presence in the US of the citizen parents seeking to transmit citizenship to an out of wedlock, foreign born child. The 6-2 opinion by Justice Ginsburg striking down the sex-based distinctions runs through the full litany of the Court's sex discrimination cases, most of which the Justice had a hand in one way or another -- from Reed v. Reed, where she argued as amicus, to U.S. v. Virginia, which she wrote as a justice. Justices Thomas and Alito dissented, arguing that the Court should not have reached the merits.
Importantly for US human rights activists, the opinion took human rights law seriously. For example, the government had argued that sex-based distinctions in US citizenship law were needed in order to avoid statelessness for some mothers. The opinion rejects that rationale, citing at length the campaign of the UN High Commissioner on Refugees to address sex-discrimination in nationality laws as a component of its campaign against statelessness:
Sunday, June 11, 2017
by Guest Blogger David Sloss
June 12, 2017, is the fiftieth anniversary of the Supreme Court decision in Loving v. Virginia. In Loving, the Court held that state laws prohibiting inter-racial marriage are unconstitutional. Many legal scholars would say that Loving was part of a constitutional revolution that occurred under the leadership of Chief Justice Earl Warren. I don’t disagree, but I want to offer a slightly different perspective. I think Loving can be explained as part of a process in which the United States aligned federal law with the human rights principles articulated in the Universal Declaration of Human Rights.
The Declaration of Independence says that all men are endowed by their creator with certain unalienable rights. Similarly, the Universal Declaration of Human Rights proclaims “the equal and inalienable rights of all members of the human family.” The two documents are similar in that respect. However, the men who wrote the U.S. Constitution assumed that it was the responsibility of state governments, not the federal government, to protect the inalienable rights of their citizens. Although the Bill of Rights was adopted in 1791, the consensus view for more than 150 years was that the Bill of Rights protected human rights against the federal government, but it did not protect human rights from infringement by state governments.
Under this view, each state government was free to decide for itself which human rights are “inalienable,” and therefore which rights are protected against infringement by the state. Before the Supreme Court decided Loving in 1967, 34 states allowed inter-racial marriage and 16 states prohibited inter-racial marriage. Under the traditional view, marriage was governed entirely by state law, not federal law.
The idea that human rights protection is governed by state law in the United States began to change in the late 1940s, at about the same time that the United Nations adopted the Universal Declaration. In 1947, in Adamson v. California, Justice Hugo Black argued in a dissenting opinion that the Fourteenth Amendment made the Bill of Rights binding on state governments, and gave the Supreme Court the responsibility to ensure that state governments did not violate the rights codified in the Bill of Rights. Justice Black lost in Adamson. However, his view became more influential over the next 20 years. By the time the Supreme Court decided Loving in 1967, virtually every Justice agreed that the Court had the power to strike down state laws that violated fundamental human rights.
Under Supreme Court doctrine, as it developed in the 1950s and 1960s, if a right was classified as “fundamental,” the Court would strike down state laws violating that right. But if a right was deemed to be “not fundamental,” states were free to make their own rules. Under Supreme Court doctrine, some of the rights included in the Bill of Rights qualified as “fundamental,” but others did not. Moreover, some rights qualified as “fundamental,” even though they were not included in the Bill of Rights.
As I explain in more detail in a recent publication, the result of Supreme Court decisions between about 1948 and 1971 can be summarized briefly as follows: civil and political rights codified in the Universal Declaration of Human Rights qualified as “fundamental rights,” but rights that were not included in the Universal Declaration were not deemed to be “fundamental.” The Supreme Court did not cite the Universal Declaration as part of its rationale for deciding that a particular right should be classified as “fundamental.” But the actual results of Supreme Court decisions aligned more closely with the civil and political rights listed in the Universal Declaration than they did with the rights codified in the U.S. Bill of Rights.
Loving v. Virginia illustrates this point. The Supreme Court said explicitly in Loving that marriage is a fundamental right. However, the U.S. Bill of Rights does not mention a right to marry whomever one chooses. In contrast, the Universal Declaration of Human Rights says: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry.” Therefore, Loving should be understood as one of a series of Supreme Court decisions between about 1948 and 1971 in which the Court gradually aligned U.S. constitutional law with the human rights norms codified in the Universal Declaration.
Thursday, June 8, 2017
Just in time for the new round of litigation challenging state-level restrictions on safe communities (i.e., sanctuary cities), the Opportunity Agenda and the Program on Human Rights and the Global Economy of Northeastern Law School have posted the revised handbook on Human Rights in State Courts on SSRN. You can check it out here.
On the federal level, a recent update is Rivero v. Montgomery Co., Maryland, 2017 WL 1684618 (D. Md.). There, the federal court cited a report that the Maryland Legal Aid submitted to the UN Special Rapporteur on Extreme Poverty and Human Rights which documented incidents in which farm owners and law enforcement prevented Legal Aid workers from conducting outreach to migrant farmworkers. This evidence helped the farmworkers overcome a Motion to Dismiss their first amendment complaint arising from the incidents. MDLAB's work on the Special Rapporteur submission was supported by the Local Human Rights Project of the Center for Human Rights and Humanitarian Law of the Washington College of Law, American University.
Wednesday, June 7, 2017
President Trump's announcement that the US will withdraw from the Paris Accord may play into the hands of the plaintiffs in one of those pesky federal lawsuits being considered by one of those "so-called" federal judges.
In August 2015, a group of 21 activist youth and supporters initiated Juliana v. United States, a lawsuit against the US government for its failures to address climate change and shift away from fossil fuels to renewable alternatives. The government quickly sought to dismiss the case, which argues that the government policies violate substantive due process rights, equal protection, the people's rights under the 9th amendment, and the public trust doctrine. In November 2016, the federal judge in Oregon denied the motion in a thoughtful opinion that some framed in human rights terms. Her decision cleared the way for trial preparation. Meanwhile, the government has sought to certify review of the opinion by the 9th circuit court of appeals, a move that has not been supported by several of the industry defendants.
Ultimate success on the Constitutional grounds in the novel Juliana case will require heavy lifting by the plaintiffs, but the withdrawal from the Paris Agreement will certainly contribute to the factual underpinnings of their suit, and perhaps to the substantive claims as well. As a result of advocacy during the negotiation process, human rights are explicitly cited as a basis for the Paris Agreement. While the operative provisions do not include human rights language, some argue that references to the Sustainable Development Goals, which incorporate human rights norms, bring human rights into operative processes of the Paris Agreement as well. As a result, at least expert says that whatever its legality under the terms of the treaty itself, leaving the Paris Accord is a breach of US human rights obligations.
This explicit identification of climate action with universal human rights norms developed with US input, will help support that argument that environmental stewardship is "fundamental to our scheme of ordered liberty and is deeply rooted in this nation's history and tradition" -- a critical component of the 5th amendment claim put forward by the Juliana plaintiffs.
Tuesday, June 6, 2017
The Earth does not have an unlimited ability to sustain its inhabitants. President Trump either does not care or does not understand this urgency.
Ten governors have pledged to continue compliance with the 2015 Paris Agreement despite the announcement of recent US plans to withdraw. The states have formed the bipartisan US Climate Change Alliance. The Alliance pledges to reach the goal of reducing greenhouse emissions by 26-28% of 2005 levels by 2025. This would ensure compliance with the goals of the Clean Power Plan, a plan that is now under review per the order of the President.
The governors join mayors, companies and universities that have organized and plan to file reports with the UN in lieu of those typically filed by member national governments. The collaborative was the idea of former NY Mayor Bloomberg who has pledged $15 million of his own money to the replace the US contribution that would have been made to fund the UN's costs in operating the UN Framework Convention on Climate Change.
Local US advocates have assumed leadership in the human rights movement. This was a topic of discussion at the recent HR conference held at Columbia University.
The International Red Cross and several other partners have announced their second annual essay contest on International and Comparative Disaster Law. Short abstracts are due July 7, from which 5 will be selected to make full submissions. Topics must involve international law or a comparison of laws or legal issues in two or more countries.
Here is an excerpt from the background material on the essay contest:
"Scholarship about legal and regulatory frameworks for reducing disaster risks, responding to disasters and recovering from them, is still in its infancy. Yet states are increasingly turning to legal tools to fight disasters, at the national, regional and international levels. Are they learning from each other about what works well and what does not? Are international instruments meeting their potential to increase cooperation in disaster risk management and humanitarian response? Are international legal tools being translated effectively to the national level in terms of implementation and enforcement? Further details about disaster law, together with details of the key binding and non-binding legal instruments, are available at www.ifrc.org/dl and http://www.ieudl.eu/databases/
This essay contest aims to stimulate creative thinking and analysis about disaster law, in relation to these and other questions, from an international and/or comparative perspective. The first annual contest, held in 2015, drew submissions from 12 countries. The winning essay was: Giovanni Sciaccaluga, whose paper was entitled Climate change related disasters and human displacement: towards an effective management system (2015)."
Monday, June 5, 2017
Much discussion among judges and lawyers these days is devoted to access to justice. The growing divide in the US between those with resources and those without is particularly apparent in access to legal services. Hourly billing at rates of $400.00 and up are unaffordable even for those previously considered middle class. In many cases, Judges report litigants self-representing in up to 80% of cases that involve family law and housing. More and more of those in need of legal services to protect basic human needs are unable to find legal help. Particularly hard pressed are those who do not qualify for help from Legal Services organizations and those who do not have funds for significant retainers.
Addressing the need for affordable legal services is part of the education of human rights lawyers. When viewed through a human rights lens, adjusting ones practice to provide low cost, yet competent representation, permits clients to secure the principles voiced in the Universal Declaration of Human Rights.
The ability to make a living while protecting clients' human rights must be incorporated into legal education. Technology permits lawyers to reduce overhead in many ways, including the ability to work from home and renting a conference room as needed. Technology also broadens the geographical range one can build a client base, now that video conferencing is routine. Technology has made the delivery of services to those of limited means a realistic option. One way to create Human Rights lawyers is to show students and new graduates how to have a practice that will address crucial human rights and sustain them financially. Bill Henderson and others have written extensively on changing the delivery of legal services. His arguments and advice also support human rights lawyering.
Sunday, June 4, 2017
by Martha Davis, Northeastern University School of Law
By now, most US legal mavens will know that the Supreme Court is considering the US government's petition for certiorari in cases from the 4th and 9th circuit courts of appeals addressing the Executive Order known as the travel ban. The 4th circuit affirmed a lower court's injunction staying implementation of the Administration's travel ban; the 9th circuit case is still awaiting decision by that court of appeals. Briefing before the Supreme Court is ongoing, with papers opposing the Court's review due on June 12. Four justices' votes are needed to grant the review.
As challenges to the ban have moved through the courts around the country, much of the focus has been on whether there is sufficient evidence of discriminatory intent to find that the purpose of the revised travel ban is indeed to bar certain religious and ethnic groups. President Trump's tweets as a candidate and while in office have been key to that inquiry. And the offensive tweets continued this past weekend in the wake of the most recent London attacks.
However, as the travel ban litigation edges toward the Supreme Court, it's important to remember that the President's discriminatory intent is not the only issue. Earlier this year, Stanford Law Professor James Cavallaro and law student Rebecca Mears co-authored an op-ed in the NY Daily News reminding readers about the relevant provisions of the Refugee Convention and the United States' obligations under the treaty. Steve Elzie, a lecturer at USC law school, has posted a more detailed outline of an argument invoking the Youngstown factors to analyze presidential power in this area in light of Congress's ratification of the Refugee Convention and its implementation of the Convention through the Refugee Act. As Elzie points out, in the past, the Court has been wary of extending executive power even in the face of apparent Congressional inaction; in Medellin v. Texas, for example, five Justices, led by Chief Justice Roberts, disallowed the President's efforts to implement the nation's Vienna Convention obligations through Executive Order when Congress had not taken action to execute on the treaty through domestic implementation. In this case, then, in an instance where Congress has taken affirmative acts to implement US obligations to participate in the international refugee agreement, the President's power in the area would seem to be at its lowest ebb.
A group of international law scholars have already been filing an amicus brief in a number of the pending travel ban cases making the affirmative argument that the Executive Order violates human rights norms embodied in the Universal Declaration of Human Rights and other human rights documents. As the travel ban cases proceed, it will be important to more fully develop the argument arising from US international and domestic obligations under the Refugee Convention.
Thursday, June 1, 2017
An international team -- Alexandra Huneeus of Wisconsin Law School and Mikael Rask Madsen of the Copenhagen Law Faculty -- has just posted a new comparative study of regional human rights systems. The title and abstract are below, and the SSRN link is here.
Abstract: Regional human rights have been heralded as one of the greatest innovations of international law of the 20th century. And yet, the broader debate on the history of human rights has paid surprisingly little attention to regional human rights systems, thereby missing some of the most salient strands of the larger history. This article represents a first systematic attempt to compare the institutional histories of the regional human rights systems in Europe, the Americas and Africa. It reveals how the regional rights systems’ evolution has been shaped in part by the same geopolitical dynamics, and how, in many ways, they have explicitly and implicitly worked in tandem, linked by common challenges, and notably by shared ideas and practices. Our story also uncovers that the paths of influence between the regional rights systems are not, as is often assumed, simply unidirectional: while it is undoubtedly the case that the European human rights system became influential in its region earlier, the Latin American and African systems have also contributed to the making of the broader international human rights order.