Wednesday, December 17, 2014
In the most significant change in US policy toward Cuba since the 1960s, President Obama and Raul Castro spoke Tuesday (the first direct communication between a US and Cuban leader since 1961) about normalizing relations. This announcement follows a series of diplomatic moves to improve the relationship between the two counties, including Cuba’s release of American Alan Gross the US’s freeing of three incarcerated Cubans.
The Obama administration also announced that it plans to re-open the US embassy in Havana and ease restrictions on travel and commerce between the two counties.
Obama’s actions to improve diplomacy between the two counties follow what he called an “outdated approach” to Cuba. “Isolation has not worked. . . It’s time for a new approach.” The administration’s plan is to promote reform in Cuba through engagement, rather than isolation.
Monday, December 15, 2014
The National Law Center on Homelessness and Poverty (NLCHP) recently released its Housing Report Card, giving the United States a failing grade. NLCHP’s report card examines the current level of US compliance with the human right to housing in the context of American homelessness. Specifically, NLCHP assesses steps taken by the federal government to end and prevent homelessness, as well as relevant state and local policies.
Read the full report for detailed information about each category and grade.
Friday, December 12, 2014
Under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, the FBI began collecting data on hate crimes committed on the basis of gender identity last year. The FBI presented that data for the first time in this year’s annual Hate Crimes Statistics for 2013 report. Its findings are underwhelming: for 2013, the FBI reported only 31 hate crimes based on gender identity.
According to the Human Right Campaign, the FBI data “does not paint a complete picture of hate crimes against LGBT Americans because of two significant factors. First, under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, the FBI only began collecting data on hate crimes committed on the basis of gender identity last year and were reported for the first time in this year’s report. HRC remains concerned that the low number of responses for hate crimes based on gender identity and gender non-conformity -- 31 incidents -- suggests that law enforcement are mischaracterizing hate based crimes as ones based on either sexual orientation or gender. Second, current statistics only provide a partial snapshot of hate crimes in America. As in past years, the vast majority of the participating agencies (88%) reported zero hate crimes. This means that law enforcement in those participating agencies affirmatively reported to the FBI that no hate crime incidents occurred in their jurisdiction.”
In its report on hate violence in 2013, the National Coalition of Anti-Violence Programs reported “twelve hate motivated homicides of transgender women of color in 2013, many of them occurring through the months of June through September,” and over 300 incidents of anti-transgender bias.
For a thoughtful and moving discussion of the intersection between violence, race, and gender identity, and a way forward, check out this brief talk by transgender activist, Laverne Cox. Highly recommended.
Tuesday, December 2, 2014
Sunday, November 30, 2014
Our friends at Bar-Ilan University in Israel wish to announce the upcoming international conference on Legisprudence and Legislative Process: From Theory to Practice, which will be held at Bar-Ilan University in Israel on December 6-7, 2014. A brief description of the conference, as well as a link to the conference program, follows:
In recent years, there has been growing literature describing a "crying need" for improvement in the legislative process of legislatures across a wide range of legal systems. At the same time, there has been great development of a separate body of legisprudence scholarship dedicated to developing the concept of "quality of legislation" and ways to improve this quality. Bringing together leading legislation scholars and practitioners from Europe, the U.S. and Israel, this international conference aims to integrate theoretical insights with cross-national practical experience in exploring ways to improve the legislative process. The conference will cover such issues as minorities' legislative power; improving the effectiveness and efficacy of the legislative process; improving the accessibility of legislation; lobbying reform; the role of impact assessment in the legislative process; the role of legislative counsels; and the role of courts in improving the legislative process. The conference, co-organized by Bar-Ilan University Faculty of Law and the Knesset Legal Department, will take place in Israel on December 10-11, 2014.
Monday, November 24, 2014
Marcy Karin runs the Work-Life Law and Policy Clinic at ASU’s Sandra Day O’Connor College of Law. The Work-Life Clinic is an integrated law clinic that works on administrative litigation, legislative and regulatory advocacy, and community education efforts on employment law and policy issues for low-income individuals and nonprofit organizations working on their behalf. This work includes cases and projects related to unemployment insurance, reasonable accommodations for people with disabilities, time off, flexible scheduling, unpaid wages, discrimination, reentry, and civil justice for military families.
Over the summer, the ABA changed the definition of what constitutes a clinic when it published Revised Standards for law school accreditation. Specifically, Standard 304 now reads:
Simulation Courses and Law Clinics
(b) a law clinic provides substantial lawyering experience that (1) involves one or more actual clients, and (2) includes the following: (i) advising or representing a client; (ii) direct supervision of the student’s performance by a faculty member; (iii) opportunities for performance, feedback from a faculty member, and self-evaluation; and (iv) a classroom instructional component.
This new rule explicitly requires at least one “actual client” for a course to be considered a clinic. This may have (presumably unintended) consequences for programs that include policy advocacy, community lawyering, or other types of experiential training that may not include client representation, but otherwise meet the ABA’s requirements.
For example, some excellent clinics train students by taking matters and projects on behalf of causes, rather than clients. Among other things, clinics have testified as experts in front of federal, state, local, and tribal legislatures; submitted comments to rulemaking as part of the regulated community; and worked as part of loose coalitions of people in community negotiations or mobilizations. As Kevin Barry and I have written about in the past, this type of cause lawyering is a critical component in training students to meet the standards set forth in paragraph 6 of the Preamble to the ABA Model Rules of Professional Conduct, which states that all lawyers “should cultivate knowledge of the law beyond its use for clients [and] employ that knowledge in reform of the law.”
In striving to meet this ethical standard and fulfill a critical need for lawyering services in different communities, a growing number of faculty have incorporated non-client work into clinic dockets. In addition to law reform, some clinics regularly work in conjunction with partner organizations to offer walk-in legal clinics. These type of drop-in events are usually undertaken without any expectation of entering into a lawyer-client relationship with event partners or the members of the public that attend these sessions for counseling services. Other clinics focus on public education either by participating in “know your rights” workshops, by teaching high school students about the law, or by highlighting a problem that had previously remained in the shadows. Some clinics do this by documenting human rights violations, working on grassroots media campaigns, issuing educational white papers, or volunteering to answer voter questions about how to exercise their rights on election day.
Of course, even litigation-focused clinics may work without clients. Clinics have been asked to serve as amicus by courts on issues within their substantive areas of expertise, train judicial personnel, advocate for best practices or changes in existing judicial procedures or any number of other litigation orientated, but non-client projects.
Many (but not all) of the clinics that participate in these activities are integrated law clinics, which means they likely also have at least “one client” on a docket at any given time. Given this, they would still qualify as a clinic. Nonetheless, the new clinic definition remains problematic: neither the ABA nor the academy should be sending the message that this type of work is not important in my opinion. Nor that this work is not as important as lawyering work performed on behalf of a client. Rather, law schools should have the discretion to offer “clinics” with substantial lawyering opportunities that educate the community about the law, identify problems with it, and/or address how best to reform it.
For the past few months, my colleague Art Hinshaw and I have been having an internal discussion about the potential unintended consequences that this revised standard may have on our clinics. In this September post on the ADR Prof Blog, Art took our conversation public and asked whether this interpretation would be the death knell for mediation clinics like his, where students do not have clients but rather serve as mediators at the behest of our local courts.
His post spurred the mediation community into action, and he is now the co-chair of an ABA Dispute Resolution Section Task Force created specifically to address this issue. To start off their conversations, he has suggested the following revised language for 304(b) to the Task Force:
A law clinic provides a substantial lawyering experience that (1) involves acting in a problem solving role, and (2) includes the following:
- Any of these lawyering activities:
- Advising or representing a client, OR
- Acting as a third party neutral in a dispute involving live disputants, OR
- Direct supervision of the student’s performance by a faculty member
- Opportunities for performance, feedback from a faculty member, and self-evaluation, and
- A classroom instructional component
With this post, I hope to galvanize more clinicians to join the conversation. There is no way that this new definition will be the death of cause lawyering or community education in law school clinics. That said, ABA Standards should reflect the reality that many clinics undertake important non-client based lawyering work and training. The new standards became operational on August 12, 2014, and Standard 304 must be phased in to apply to students who are 1Ls in Fall 2016. This gives us a window of opportunity to help our mediation colleagues improve this new standard.
Given this, what else should be included in the list of proposed lawyering activities? Educating the community about legal rights or processes? Responding to requests for technical assistance from the government? How can we best reflect the diversity in our community with respect to clinic structures and learning opportunities? Share your ideas in the comments!
Two Princeton researchers, Martin Gilens and Benjamin Page, recently released a study, arguing that America's political system has changed from a democracy into an oligarchy controlled by the wealthy and privileged. "The central point that emerges from our research is that economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy," they write, "while mass-based interest groups and average citizens have little or no independent influence." An article on the Princeton report is available here.
What do you think? Sound off to the Legislation Law Prof Blog editors!
Thursday, November 20, 2014
Following a Supreme Court decision, same-sex marriage will be allowed to continue in South Carolina. This morning, the Supreme Court denied a stay request from South Carolina Attorney General Alan Wilson. South Carolina’s AG asked the Supreme Court to block a lower court’s ruling, which overturned South Carolina’s same-sex marriage ban. In overturning the same-sex marriage ban, Federal District Court Judge Richard Gergel stated South Carolina is bound by recent 4th Circuit Court of appeals decision striking down Virginia’s same-sex marriage ban.
The Supreme Court’s decision makes South Carolina the 35th state in which same-sex marriage is legal.
Do ATF stings target criminals? Or poor people of color?
The New York Times today posted an interesting article about the Bureau of Alcohol, Tabacco, Firearms, and Explosive's increasing use of "sting" operations purportedly designed to capture "hardened criminals." However, critics say that these tactics are racially discriminatory and target minorities regardless of prior evidence of criminality. As the NYT article reports, a California federal judge recently agreed, describing the Bureau's efforts as “trawling for crooks in seedy, poverty-ridden areas — all without an iota of suspicion that any particular person has committed similar conduct in the past.” The entire NYT article can be found here.
Wednesday, November 19, 2014
The Supreme Court recently granted certiorari in the case of King v. Burwell. Under this grant, the Court will again take up the issue of the constitutionality of the Affordable Care Act. This will be second time the Court has examined the constitutionality of the ACA (the first being in 2012 when it determined the ACA to be constitutional).
Under King v. Burwell, the Court will decide whether the government has the ability to authorize subsidies for insurance purchased on federally-run exchanges. The language of the ACA authorizes subsidies for insurance purchased on exchanges “established by the state.” ACA challengers argue that the plain language of the statute does not give the government the ability to provide subsidies to individuals who purchase insurance on exchanges run by the federal government. Supporters of the ACA argue that the intent of the law is to provide subsidies to all individuals who purchase insurance through the exchanges and that the law would not have otherwise authorized the federal government to establish exchanges when states refused to do so.
To date, nearly five million individuals have received federal subsidies to purchase insurance through a federally-run health exchange. The average subsidy is approximately $4,700 a person. There are currently 14 State-based exchanges, 3 federally-supported exchanges, 7 State-partnership exchanges, and 27 Federally-facilitated exchanges.
The Court’s grant came despite the fact that US Court of Appeals for the DC circuit was scheduled to hear arguments on the subsidy issue in December. As a result, some see the Court’s decision to take up the issue as inappropriately political.
Monday, November 17, 2014
If you're an avid reader of Politico, you may've noticed an article last week introducing the State Innovation Exchange, or SiX. The New York Times followed up, asking whether, in the wake of the midterm elections, "Is it Too Late for a Democratic ALEC?"
As we noted a couple weeks ago, conservatives now control two-thirds of the state legislative chambers nationwide. Progressives seem to have taken note. Politico reported this morning that during last week's Democracy Alliance meeting of progressive donors, there was agreement to focus more on state-level races. The story quotes a progressive operative as saying “Overall, there’s a growing understanding — at least at the Democracy Alliance level — that state and local races matter.”
So, what role might SiX play in this new focus on the states?
First -- and to explain the equation in the title to this post -- it's worth noting that SiX combines the resources of three organizations: the American Legislative and Issue Campaign Exchange (ALICE), the Progressive States Network (PSN), and the Center for State Innovation (CSI).
In a recent email to supporters, SiX executive director Nick Rathod outlined what the new organization will do:
SiX is a new, state-focused "action tank" that looks beyond Washington to build a powerful and permanent infrastructure for progressives. Our communications, policy and political strategies focus on passing state laws that reflect progressive values.
When we launch in December, we will waste no time in continuing the work of ALICE and the Progressive States Network -- the groups that came before us which so powerfully paved the way for this next stage of progressive policy making... SiX will act as an expert resource for legislators and their staffs to lift up the essential work being done in the states which advances progressive values and policies.
If you've been a user of the materials on the ALICE website, don't worry. All the content of the ALICE Library will be available soon at our new home -- www.stateinnovation.org. When that goes live, we'll be sure to let you know!
Thursday, November 13, 2014
In the wake of the child sex abuse scandal at Penn State in 2011, several states have passed so-called “Penn State laws” that amend their state mandated reporter statutes to include higher education employees. The problem? Some of those higher education employees are lawyers, namely, clinical law professors. As discussed in this blog post, Connecticut’s expanded mandated reporter law, which took effect in October of this year, appears to make mandated reporters of all higher education employees, including clinical law professors. For more information on whether your state names higher education officials as mandated reporters (and whether it contains an exception for information obtained in the course of providing legal representation), see this 2013 Report from the U.S. Department of Health and Human Services, Children’s Bureau.
Wednesday, November 12, 2014
Veteran’s Day is an appropriate time to reflect on the unfortunate prevalence of homelessness among America’s veteran population. The National Alliance to End Homelessness recently reported on the progress of their Never Another Homeless Veteran education campaign, “a two-year effort by the Alliance and its partners to build and leverage public support to end veteran homelessness.” The NAEH reports that “in the last three years, 15 of the country's largest metropolitan areas, including New York and New Orleans, have cut their numbers of veterans experiencing homelessness by more than 50 percent.” You can find out more about these success stories in this You Tube video.
Yesterday, the Washington Post reflected on the reported progress in reducing veteran homelessness, calling these indicators of success “a bright spot in [a] tough battle against homelessness.” But the Post persisted in asking why—during the same period of time—the homeless family population has increased so drastically (“[s]ince 2011, while veterans homelessness has plummeted, the number of homeless residents in families increased 41 percent.”).
Perhaps the indications of success with reducing veteran homelessness can illuminate the way for similar successes reducing homelessness among families.
Thursday, November 6, 2014
In case you missed the news, the Republican party swept the midterm elections this past Tuesday.
Much of the post-election media coverage has been about how the Republicans picked up seven seats and gained control in the U.S. Senate. But the sweep extended to the states as well. Republicans won governors races in Arkansas, Illinois, Maryland, and Massachusetts (but lost the statehouse in Pennsylvania). And Ballotopedia reports that as of Thursday afternoon, ten state legislative chambers have flipped from Democratic to Republican control (results in two additional chambers are still pending).
This means that 31 states now have Republican governors, and the GOP controls 67 of the 99 state legislative chambers nationwide. And news reports suggests that state Republican leaders are emboldened to act on what they see as a mandate coming out of the elections. In Wisconsin, Governor Scott Walker met with his cabinet the day after the election and told them that "We're gonna be even more aggressive now" in pushing the Republican agenda.
The other news coming out of the elections was the results of ballot initiatives. Around the country, citizens even in traditionally red states voted to raise the minimum wage and legalize marijuana. As NPR reports, voters in Alaska, Arkansas, Nebraska, and South Dakota all voted in binding referenda to raise the state minimum wage above the federal level. (In Illinois, a nonbinding referendum to raise the minimum wage to $10/hour passed overwhelmingly, even as voters elected a gubernatorial candidate who had once favored eliminating it entirely.) And voters in Alaska and Oregon chose to legalize marijuana for recreational use, while the District of Columbia legalized possession of up to two ounces of the plant.
These apparently contradictory trends -- conservatives sweeping into elected office, even as voters support ballot referenda that enact laws often seen as progressive -- speak to the power of the initiative process. As part of some research we've been doing for a report that will be released in coming months, we've been mapping out how the initiative process works in states around the country. Based on data from NCSL, we've built the map below. Even as the map of party control turns more red, this map suggests a more complex future, should the trend toward advancing progressive policy via the initiative process hold in coming years.
Tuesday, November 4, 2014
If history is any guide, turnout on this midterm election day won’t top 45% of eligible voters. (It hasn’t since 1970.) Over half of Americans, apparently, simply don’t feel it’s worth the trouble to vote in a midterm election.
What if we made it easier to vote? WhyTuesday.org notes that in the last census, 27% of nonvoters said they were too busy or couldn’t get the time off to vote. This has long been the number one reason that Americans have said they don’t make it to the polls. How might things be different if Election Day were a national holiday, or if we moved voting to the weekend? Countries that vote on the weekend do have much higher rates of turnout: France (67.3%), Germany (80.2%), Thailand (82.1%), Russia (56.6%), Japan (68.7%).
Some states – including Delaware, Hawaii, Kentucky, Montana, New Jersey, New York, Ohio, West Virginia, and the territory of Puerto Rico – have made Election Day a civic holiday, meaning state employees get the day off. Congressman Steve Israel (D-NY) has introduced The Weekend Voting Act, H.R.1641, in the U.S. House of Representatives, where govtrack gives it a 1% chance of being enacted. (You can learn about other reforms that would make it easier to vote or increase turnout here, and sign a White House petition to make Election Day a holiday here.)
Even with these attempts at reform, it’s worth asking: is the United States in fact the greatest democracy in the world? At least in terms of voter turnout, it definitely isn’t. Indeed, with just 47.7% average turnout since 1945, the U.S. ranks dead last among G8 countries, and 138th out of the world's 172 countries. The numbers are enough to make one wonder if there might be some people in the United States who like it this way, and would prefer not to have more Americans at the polls.
But what if things were different? What if we not only got time off work to vote, but we were also expected to vote as one of our civic duties?
In 1996, Professor Arendt Lijphart used his Presidential Address to the American Political Science Association to think through these questions. He reasoned that low voter turnout is a serious democratic problem, because, among other things, it systematically biases the vote against less well-to-do citizens, and it leads to unequal political influence. After considering possible reforms like weekend voting, Lijphart concluded that, in the end, compulsory voting is the better option – its advantages “far outweigh the normative and practical objections to it.” If you think low turnout is problematic -- or, especially, if you don't -- the speech is worth a read.
From time to time, Americans have actually experimented with making voting a legal duty. From 1777 to 1789, the Georgia state constitution required people to vote (at least those white men who then had the franchise). And during the early 1890s, Kansas City required its residents to vote. In 1896, the Missouri Supreme Court struck down the provision in Kansas City v. Whipple, but as former White House counsel John Dean has pointed out, that case didn't resolve the question of whether it would be permissible under the U.S. Constitution to require citizens to vote.
Looking around the world, there are 22 countries that require their citizens to vote (though not all of them enforce the requirement). These include Greece, Belgium, Mexico, most of the countries in South America, and even the Democratic Republic of the Congo. In Australia, where voting has been mandatory since 1924, voter turnout rates are regularly between 93 and 95 percent.
So when you head to the polls today – and we at ALICE certainly hope you do – take a moment to think about whether the U.S. should join the club. Would it be un-American to require our fellow citizens to participate in choosing our elected representatives? Or is it more un-American to be okay with the fact that in midterm elections, most of them don’t?
The Legislation Law Prof Blog urges everyone to GET OUT AND VOTE! What types of issues are most pressing on your ballots? In King County, Washington, we've got gun control and education funding as highlights on the ballot.
As followers of the LLP Blog may recall, we often post on the Ban the Box effort. In California, voters will decide today on a ballot measure that could make it easier for people with felony convinctions to find a job. Here's an excerpt from Five Thirty Eight Economic's coverage on California's Proposition 47:
Proposition 47 would reclassify some drug and property crimes as misdemeanors rather than felonies. Proponents of the measure have focused primarily on the cost savings from sending fewer people to prison, but they argue it would also help non-violent offenders like Martin become productive members of society.2
Opponents counter that any benefits aren’t worth the tradeoffs. The initiative would reclassify possession of date-rape drugs and the theft of many firearms as misdemeanors, which some law enforcement officials argue could result in the release of violent or potentially violent offenders.
But beyond the specifics of Proposition 47, there is an emerging consensus from across the political spectrum that some sort of reform is necessary to help millions of Americans with criminal records find work. Attorney General Eric Holder and other Democrats have spoken frequently about the issue, but so have conservatives such as Rand Paul and New Gingrich, who penned an op-ed in the Los Angeles Times supporting the California initiative.
One reason the issue has become so pressing is the large and growing number of Americans who have criminal records — and the evidence that many of those Americans are effectively shut out of the job market. According to one 2010 study, 12 million to 14 million people had felony convictions in 2008, about half of whom spent time in prison.3 The National Employment Law Project estimates that 70 million people — a quarter of U.S. adults — have an arrest history that can show up on a background check, whether or not they were convicted. Ex-offenders are disproportionately poor, less educated and black or Hispanic — groups that often struggle to find work even without criminal records. The slow economic recovery has made it even harder.
What do you think? Would you vote for Prop 47? Do you have a similar or related ballot measure on your table right now?
Happy vote day, everyone.
Friday, October 31, 2014
In a recent report, Richard Rothstein, an Economic Policy Institute (EPI) Research Associate, "showed that government actions such as racially explicit zoning, public housing segregation, and federal requirements for white-only suburbs systematically segregated African Americans—and set the stage for the protests and racial tension following Michael Brown’s death."
On Thursday, November 13 at 11:00 a.m. ET, the NAACP Legal Defense Fund (LDF) and the Economic Policy Institute (EPI) will host a forum that continues to examine policies that led to the events in Ferguson. Rothstein and Sherrilyn Ifill, LDF Director-Counsel, will "discuss how a century of purposeful federal, state, and local policy to segregate the St. Louis metropolitan area by race was at the root of the events in Ferguson. They will also detail how these policies were not unique to Ferguson and St. Louis, but national in application."
Wednesday, October 29, 2014
Like most folks over the past few weeks, I've heard alot of news and commentary on the potential spread of Ebola through commercial airplane travel. The article below (a post from lawfareblog.com) outlines our country's plans to increase airport screening of passengers arriving in the United States and considers some of the legal and policy issues related to this plan. What do you think?
By Paul Rosenzweig
Thursday, October 9, 2014 at 7:00 AM
A few days ago President Obama announced his intention to do greater screening of passengers arriving in the United States, as a way of interdicting the spread of the Ebola virus. According to the Washington Post, the new procedures will include “entry” screening – that is screening upon arrival in the United States – layered on top of the already existing “exit” screening that is being conducted at airports in West Africa. “The new screening possibilities being considered by the administration include taking the temperature of travelers from affected countries upon their arrival at major U.S. airports and more-closely tracking travel histories for international travelers arriving in the United States.” According to an NPR story today, the new screening will happen at the top 5 airports in the US (including Dulles) and will at least in part also involve CBP officers “looking at patients for signs of distress.” [Traffic to the US from West Africa typically transits Europe. Given the current African focus of Ebola the other 4 airports being covered are also European-focused: JFK, Atlanta, O’Hare and Newark. Note that this still leaves large transit hubs like Miami and Dallas uncovered for now.]
It is useful, as this plan moves forward, to consider both some of the legal issues involved in such screening and some of the practical/policy considerations that are likely driving the discussion. Herewith a short synopsis [with the caveat that my own experience is exclusively in the DHS/homeland security law space – there are applicable public health laws, with which I’m generally familiar, but I lack expertise and may misstate slightly – corrections welcome]:
In dealing with a pandemic from overseas, HHS has, pursuant to the Public Health Service Act, 42 U.S.C. 201 et seq., statutory and regulatory responsibility for preventing the introduction, transmission, and spread of communicable disease from foreign countries into the United States. Applicable HHS regulations are found in 42 C.F.R. Parts 34 and 71. These responsibilities are delegated to the Centers for Disease Control and Prevention (CDC), National Center for Infectious Diseases, Division of Quarantine.
HHS also has primary statutory authority, pursuant to 42 U.S.C. 269, to designate and post medical officers overseas, to require that conveyances produce a clean bill of health before being permitted to depart from a foreign port for the United States, and to prescribe additional regulations for preventing the introduction of communicable disease into the United States.
Under the Aviation and Transportation Security Act, the Transportation Security Administration (TSA) is “responsible for security in all modes of transportation. . . .” 49 U.S.C. 114(d). Specific authorities to carry out this responsibility include “coordinating countermeasures with appropriate departments, agencies, and instrumentalities of the United States,” 49 U.S.C. 114(f)(4), and issuing and revising security-related regulations and requirements, “including issuing regulations and security directives without notice or comment . . . as are necessary to carry out TSA functions.” 49 U.S.C. 114(l)(1) and (2). Accordingly, (assuming we characterize disease as a security risk), TSA may assist in preventing the introduction or spread of quarantinable disease through the transportation system. Finally, pursuant to 42 U.S.C. 268(b), “[i]t shall be the duty of the customs officers and of Coast Guard officers to aid in the enforcement of quarantine rules and regulations.” Personnel of both CBP and U.S. Immigration and Customs Enforcement (ICE) exercise customs authorities and therefore qualify as “customs officers” under this provision, as do most Coast Guard officers under 19 U.S.C. 1401.
In practice, for arriving passengers at American airports, this means that DHS will work with HHS to ensure that aliens carrying a quarantinable disease such as pandemic influenza are found inadmissible to the United States – and therefore returned to their point of origin on the next flight. DHS has general authority under Section 212(a)(1) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(a)(1)) to find inadmissible any alien “who is determined (in accordance with the regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance.” One gap is that Ebola is not (at least as I understand it) on the current regulatory prescribed list – though I imagine that is changing rapidly.
A more difficult issue is with regard to U.S. citizens carrying a quarantinable disease. There is no legal authority to turn back a U.S. citizen determined to have such a disease. HHS regulations, however, do provide for the isolation, quarantine, or surveillance of a person, regardless of citizenship, suspected of having a quarantinable disease. Note that this authority is limited to the CDC, but one suspects that were such a person to arrive at a port of entry where there are no officials from CDC, the courts would uphold a reasonable temporary detention of possibly ill individuals by CBP officers until a health determination could be made.
Buried in this challenge are dozens of difficult policy/practicality/implementation questions and issues. One could (and, indeed, I’m sure someone at DHS and/or CDS is busy as we speak) write reams on the various topics. Here are just a few to highlight as matters that must be going through the minds of decision-makers:
- How reliable is exit screening in origin countries? To date roughly 100 boarding passengers have reportedly been denied the right to leave West Africa. We have no real data on how many more might have been permitted to travel but should not have (as with the Texas victim who passed away this week). In the absence of pre-negotiated screening agreements with foreign nations and training of their public health staff we are, essentially relying on their assurances.
- How effective will entry screening be? For one thing, one of the reasons that the initial deployment is limited to 5 major airports is that there aren’t that many trained CDC officers available to conduct screening. Though CDC has more than 6,500 officers, they are shared and spread among nearly two dozen agencies – and not all have the relevant medical experience. Pre-crisis, their work load at airports is generally “one-off” cases, not systematic screening of all arriving passengers. More importantly, do we have any models or experience with assessing how successful a combination of observation, questioning and testing will be. We will, I think, be fortunate, if the trained screening identifies 90% of those who should be identified. Lower success rates are highly likely.
- Can CBP be a force multiplier? CBP officers are now screening arrivals for “obvious signs” of Ebola. I don’t know what these are, myself. Even with training, however, well-meaning CBP officers are not trained health professionals. They can follow checklists, but they will inevitably make mistakes in judgment. Whatever their effectiveness, we know it will be less than that of their CDC colleagues.
- Given these efficacy concerns, can we improve our success in screening by funneling air traffic to major airports with a robust CDC presence? It would seem so – but only at some significant economic cost. There are, right now, as I said, no direct flights from West Africa to the US. Thus, almost all arrivals from infected areas have transited Europe. The US-Europe air bridge is the largest single component of our air traffic – thinking about re-routing those flights (and therefore, say, prohibiting flights from Amsterdam to DFW) is pretty disrupting.
- Can we do more than screening by limiting or conditioning travel from West Africa? Maybe. For non-resident aliens traveling from affected areas, options could include a series of escalating measures from voluntary travel restrictions to health certification requirements at exit ports, to mandatory travel restrictions and exclusion from the United States. For U.S. citizens/legal permanent residents, however, we can’t eliminate their right to return. For them we might require predicate screening, quarantine, treatment, and other prophylaxis measures to reduce the risk of transmission of to the domestic United States population – but we cannot reject them altogether.
- Can we even identify all the passengers arriving from West Africa? Probably not. If a passenger purchases a through ticket (from, say Liberia to Paris to JFK) the entire itinerary is visible to CBP in its automated arrival system. If, however, the tickets were purchased separately, or there was a break in travel, then only the Paris to JFK leg will appear. Only with much deeper and more detailed information on arriving passengers (information to which the US is not generally entitled under existing rules governing flights from Europe) could the broader travel pattern be discovered. I’ve seen estimates that 150 passengers arrive each day in the US, having recently been in West Africa. My guess is that something like ¼ are on itineraries that don’t reflect the country of origin. How likely they are to disclose that origin in response to questioning is anybody’s guess – but if I were trying to get to the US for treatment, I wouldn’t risk being turned back.
- What do we do with flights carrying an infected individual? Imagine that a plane arrives and an Ebola-infected passenger is found to be on board. What do we do with all the =other= people on the plane. Do we impose mandatory quarantine on them all at the airport? Do we allow them to go home and assume they will abide by a home quarantine order? Do we apply these rules to all the passengers or only those seated within some distance (3 rows? 5?) of the infected individual?
- Can we even implement a mandatory quarantine at an airport if we wanted to? Most airports have room for a few (less than a dozen) people to be isolated. They aren’t hospital wards. Some of the challenges of mandatory isolation and quarantine of travelers at this stage would include the following: limited HHS presence at U.S. international airports; limited number of quarantine stations; training requirements for DHS and other airport personnel; and the logistical support required for quarantined travelers (e.g., food, shelter, medical care, communications, etc.).
- What are the costs? The costs of screening are potentially large, but essentially unmeasurable. Initially they will be limited to the costs of delay at airports. Consider it this way – in 2011 (the last year for which the Department of Commerce has statistics) nearly 72 million passengers arrived in the US from other countries (excluding Canada). If the additional screening we are contemplating adds only 10 seconds to each interaction between CBP and the arriving public, the law of large number quickly overwhelms you. A good rule of thumb is that 10 more seconds/person is an extra hour of screening for each large arriving airliner. Either things slow down, or we incur a lot of overtime for CBP officers to handle the delay in throughput. Either way, travel disruption can grow to become a significant factor. Of course, to the extent we wind up having large quarantine costs or hospital-based treatment costs on the public health side, those will probably outweigh travel delay costs – but I know much less about those and can’t really even begin to estimate them.
- Will cargo be effected? It probably shouldn’t be (given my limited knowledge of Ebola’s transmission methods, cargo does not seem to be a vector of contamination). But if it is, then the costs of additional screening just increased substantially. Granted, we probably get little cargo from West Africa – but, as I said, most of it transits Europe. And if European cargo is generally subject to more scrutiny, now we are talking about significant business disruption. The domestic macroeconomic impact is potentially an economy-breaker – and the ripple effect globally would also be notable.
- Here’s another chestnut: What about diplomats from West Africa? Can they be interdicted? One suspects their governments would object.
- Don’t even get me started on the land border …. The difficulty of screening there is immensely greater than at airports.
- Is the game even worth the candle? Back when I was at DHS some public health professionals did models of the effectiveness of screening and interdiction on the spread of pandemic influenza – like avian flu. Now, granted, there are =huge= differences between Ebola and avian flu. Different diseases; different infectious pathways etc. I have no idea if the modelling results are even relevant within an order of magnitude. Still, for the flu the results back then were sobering. If I recall correctly (and I may not be exact but on this I =am= in the right order of magnitude), screening that was 90% effective (which would probably be a huge success in most contexts) delayed arrival of the pandemic in the US by 1-2 weeks. Nothing more. Maybe Ebola’s different – maybe 90% effective screening can, for the most part, keep it off shore. But I wonder.
Attorneys general are some of the most powerful political figures in American politics. And yet, unlike many other elected officials, AGs can be lobbied "to drop investigations, change policies, negotiate favorable settlements or pressure federal regulators" without facing the same rules, restrictions, or public scrutiny.
According to an ongoing investigation by the New York Times, these conditions allow for attorneys general to be increasingly and unduly influenced by private interests. In today's article, Lobbyists, Bearing Gifts, Pursue Attorneys General, the NYT reports on the results of reviewing over 6,000 emails in over 20 states that suggest corporate lobbyists have persistent and often invisible influence over the positions and actions of attorneys general. Such influences might be fueled by favors, money, trips, or pro bono "assistance" like "writing drafts of legal filings that attorneys general have used almost verbatim."
Are attorneys general for sale?
Friday, October 24, 2014
A recent report published in the JAMA Pediatrics highlights a new low for the US: childhood poverty has reached a 20 year high. In the report, Dr. Glenn Flores and Bruce Lesley call on lawmakers to enact policy to successfully address 10 urgent priorities for the health and health care of US children. These priorities include poverty, food insufficiency, lack of health insurance, child abuse and neglect, overweight and obesity, firearm deaths and injuries, mental health, racial/ethnic disparities, immigration, and research.
It is critical that lawmakers address these issues to stop a cycle that creates negative health consequences across generations.
"Childhood poverty is associated with substantially higher mortality rates in adults, regardless of adult socioeconomic status (ie, even affluent adults who were poor as children have elevated death rates), and this increased mortality risk extends across 2 generations."
Visit here to read the full report.