America’s addiction to opioids and heroin have reached epidemic levels. Right now, 78 people die per day from use and overdose of such drugs, forcing the conversation of governors and party leaders to address a strategy that involves treatment of addiction in conjunction with punishment for use and possession of illicit drugs.

The shift in focus as it pertains to treatment rather than solely punishment is something that politicians from the likes of Bernie Sanders to Mitch McConnell can get behind–further highlighting the fact that current solutions and implementations are not working. Read on to learn more about the growing epidemic, brainstormed strategies and example case studies, and what the 2016 presidential candidates are saying America can expect in the future.

Heroin Growth Across the U.S.

The United States represents 5 percent of the world’s population, yet utilizes 80 percent of its opioids, which are known to be the gateway to heroin use. The death toll, reported in 2014, had reached the staggering level of 47,055/year.

No population is immune from the epidemic. Figures show a consistent upward trend from urban and inner-city communities to rural areas in the same fashion. The use and subsequent dependency on legal opioid painkillers has contributed to the growing problem. Workplace accidents and injuries, cyclical familial use, post-surgery procedures, and experimentation with drugs available in the home all serve as contributing factors to the outbreak of heroin use and overdoses in the United States.

States and Municipalities Take the Lead

One prevalent public health worry is that some heroin users use in public. You can find examples readily in the news–in Philadelphia, a man on public transportation during rush hour injected heroin into his hand in full view of all other individuals on the bus. A couple traveling from Indiana who had stopped at a Cincinnati McDonald’s collapsed in front of their children from an overdose. In Cambridge, Massachusetts, a church closed its public bathrooms after several individuals overdosed in those facilities. Drug users are utilizing parks, restaurant bathrooms, hospitals, libraries, vehicles, city transit, churches, and other public places to shoot up, and in turn, are losing consciousness or dying in those public places.

Due to the increasing display of overdoses coupled with the cheap and extremely accessible nature of heroin, states, local authorities, and local organizations are being forced to take action in an effort to battle the widespread heroin use.

Taking Action: Vermont

Governor Peter Shumlin (D) of Vermont took the first step in admitting that Vermont was not equipped to handle the outbreak and consequences of heroin, stating, “I found we were doing almost everything wrong.”

Initially, Vermont began its fight by addressing non-violent offenders, who were provided with an opportunity to enter into a treatment facility instead of serving jail time. Not only did this policy change reduce the number of individuals incarcerated for non-violent drug crimes, but also addressed the need for treatment and long term solutions over punishment. The facilities work with courts and provide the requisite treatment along with ensuring appropriate steps for assimilation back into society and on-going care.

Further, Vermont has taken steps to protect individuals seeking medical assistance from prosecution from possession or intent to sell. Finally, it was the first state to legalize the over-the-counter sale of naloxone–a drug used to “reverse overdoses” and effectively save lives.

However, Schumlin is not naive to believe that the battle will not come with some difficulty. He has already addressed the shortage in supply for doctors and qualified medical personnel and is working diligently to help treat those on waiting lists. Most importantly, Schumlin recognizes the need to more rationally and safely administer prescription drugs, such as OxyContin, which often serve as the gateway to heroin when prescriptions become too difficult to obtain and OxyContin becomes scarce.

Big Steps: Ithaca, New York

While most states share in the challenges faced by Vermont, politicians are taking different approaches to fight the heroin epidemic. Most controversially, the idea of supervised injection facilities has surfaced under the direction of Mayor Svante Myrick of Ithaca, New York. A supervised injection facility would allow an individual to use heroin while monitored by a nurse or caretaker without getting arrested.

This type of facility would, without a doubt, be met with public policy, political, and judicial opposition and doubt, but Myrick stands by his initiative. Abandoned by a drug-addicted father as a young child, Myrick noted, “I have watched for 20 years this system that just doesn’t work. We can’t wait anymore for the federal government. We have people shooting up in alleys. In bathroom stalls. And too many of them are dying.”

Myrick’s facility would utilize a holistic approach and view heroin addiction as a public health issue rather than a criminal justice issue. His rationale reflects a growing belief among the younger American generation that the War on Drugs, dubbed as such by President Richard Nixon in 1971, is a drastic failure.

However, critics are wary. They see the strategy as encouraging people to continue using drugs rather than seeking treatment to free themselves from addiction. Myrick does not disagree, but recognizes the need for new solutions and is working with local prosecutors and police to gain support and insight into his proposed solution. Elected District Attorney, Gwen Wilkinson initially opposed the idea, but has seen the possible benefit and stated, “What brought me around was the realization that this wouldn’t make it more likely that people will use drugs. What it would do is make it less likely that people will die in restaurant bathrooms.”

Myrick’s plan is to ask the New York Health Department to declare the heroin epidemic a state crisis, which would allow for him to take certain steps on a local level without the approval of state legislature. Governor Andrew Cuomo has failed to make any statement regarding such a facility, but has supported needle exchange programs and additional funding for treatment and preventative care in the past.

His inspiration was Canada’s supervised injection site dubbed “Insite,” which opened in Vancouver in 2003. Dr. Patricia Daly, Chief Medical Health Officer at Vancouver Coastal Health operates the facility and has shared that the site has approximately 800 visitors daily, 10-20 of whom overdose each week, but the facility has experienced zero deaths. The number of deaths in the surrounding neighborhoods has dropped by 35 percent and in 2011, Insite gained an unexpected ally in the Canadian Supreme Court who noted the facility’s success in saving lives “with no discernable negative impact.”

Myrick has other plans as well. Under his direction, low-level drug offenders would be sent to treatment, rather than jail and the creation of a drug policy and youth apprenticeship program would provide alternatives for drugs to young people.

While the answer has shifted away from solely jailing drug abusers, the major concern about such a facility is the lack of consequences for drug abusers and its inability to treat and change behavior. Even those opposed to a supervised injection site usually recognize the need for new solutions.

What the 2016 Presidential Candidates Have to Say about the Heroin Epidemic

While many of the 2016 Presidential candidates probably did not expect to be asked questions about the growing heroin epidemic, their presences in places such as New Hampshire, a state hit hard with heroin-related deaths and overdoses, has forced them to take a stance.

Presidential candidate Hillary Clinton unveiled a $10 billion plan to combat and contain substance abuse across the nation. The Democratic candidate is on board to shift focus from pure punishment to treatment, devising federal-state collaboration programs that would allow for states to receive grant money from the federal government in order to boost treatment availability, preventative care, and incarceration alternatives. Tym Rourke, the chair of the New Hampshire Governor’s Commission on Alcohol and Drug Abuse Prevention, Treatment and Recovery shared with the Clinton campaign about the lack of adequate resources and infrastructure to tackle the epidemic. Clinton’s focus on federal-state partnerships would aim to provide the support and resources that many states, like New Hampshire, are experiencing. She is the first candidate to unveil a comprehensive proposal to fight the epidemic.

(Former) Republican candidate, Chris Christie, ran ads highlighting the importance of life and the need to help addicts on a road to recovery. Additionally, he signed a series of bills into New Jersey law that focused on heroin and opioid abuse, requiring the state to:

Put in place a requirement that substance abuse centers submit performance reports; extended immunity to emergency responders and needle-exchange program employees who administer the anti-opioid drug Narcan; and mandated that state agencies provide mental health and substance abuse services to inmates in state prisons.

Another former candidate, Jeb Bush, recognized the value of input from facilities that provide treatment and care for heroin users and announced he was working with such locations in an effort to develop a plan that would address the real issues faced by treatment centers.

Democratic candidate Bernie Sanders has pushed for a decrease in the cost of naloxone, which can serve to reverse the effects of heroin and is most often used to treat an overdose when possible. The expansion of access to such medicine would allow responders and law enforcement to react more efficiently and effectively when witnessing an overdose.

Presidential candidates are identifying the amount of heroin use and heroin-related deaths as a devastating occurrence in the United States and are taking measures to diminish the number of people affected and the number of overdoses and deaths tied to the drug.

Conclusion

It is evident from the local action taking place, as well as the national campaign exposure pertaining to the use of heroin, that leaders within the United States view this problem as an epidemic. The focus of leadership, coupled with the variety of implementations and solutions surfacing into place make one thing starkly clear–a heroin epidemic is taking place in our backyard and the possible solutions are a far cry from additional punishment or prolonged jail time. This time, the ultimate resolution has shifted and it reflects treatment. As the epidemic continues to grow and claim lives, we must wait and see what the election unfolds or work with our communities to put together plausible efforts to minimize the dangers and effects of heroin on our communities. Until then, we depend on state and local leadership and law enforcement to implement actions and procedures that will decrease the number of people dying on a daily basis from heroin overdoses.

Resources

Business Insider: One State Has Shaped the National Debate on Heroin Addiction

The New York Times: Heroin Epidemic Increasingly Seeps Into Public View

New York Post: Upstate New York Mayor Wants Place Where Addicts Can Inject Heroin Safely

The New York Times: How the Epidemic of Drug Overdose Deaths Ripples Across America

The Guardian: Hillary Clinton Proposes $10bn Plan to Combat Substance Abuse ‘Epidemic’

The Guardian: Heroin Crisis: Presidential Candidates Forced to Confront Issue on Campaign Trail

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Heroin: The Epidemic Forcing a Top Campaign Issue appeared first on Law Street.

The American police have taken on a new level of stereotypical behavior–the kind that they have been notoriously alleged to partake in, yet vehemently refuse to admit. However, they do not have to admit it this time–their words, followed by their request for action will provide ample evidence to show that they are working hard to further discriminate against the black population. Their new adversary? Beyonce. Yes, Queen B is being targeted by a number of police unions as an individual unworthy of protection due to her blanketed and generalizing depiction of law enforcement and her advocacy for the #BlackLivesMatter social movement. Sounding ironic? It should be.

Before addressing Beyonce’s advocacy and creative interpretation, I would like to make the following observations: John Lennon worked tirelessly to develop a peaceful revolution through song, performance, and lyric. Paul McCartney continued that very public and non-discreet political picture. U2 and Bono have been devoted, active, and outspoken pioneers for Africa in the fight against HIV-AIDS and promoting education, often times criticizing the lavish lifestyles of the rich and famous and taking a stark political stance. Bruce Springsteen has had a longstanding devotion to his outspoken political views, dedicating songs to his beliefs and publicly providing support for various political candidates. And who could forget the Dixie Chicks’ controversial stance against the War in Iraq?

These megastars represent a short list of artists and performers who have taken a political stance, used performance and creativity to depict political ideologies, or issued a statement based on a personal view or belief. However, none of those artists have suffered the same level of scrutiny and extreme backlash like the Queen B.

On Saturday, February 6, the diva released a video for her first new song since 2014, entitled “Formation.” The video instigated rapid fire responses about Beyonce’s exploitation of a marginalized and traumatized black New Orleans’ community, particularly post Hurricane Katrina, her open representation of southern blackness, more specifically that of a southern black woman, and resistance practices exercised by black individuals and communities.

The next day, she followed up the release of her video with a live Halftime Show performance of the song during Super Bowl 50.

Beyonce’s 2-day delivery was calculated and intense. Her message was important–that formation and organization are necessary to combat racial-based violence and embark on a path of social movement. Yet, her delivery was controversial–utilizing the black tragedy within New Orleans and exploiting the voiceless and marginalized community as her backdrop without ever giving the appropriate credit to those, like Messy Mya–a “household NOLA name” who was shot and killed at the age of 22, that provided Beyonce with the tools to tell a story that she portrayed as her own and solely for the “paper” that she sings so freely about. Whether one agrees with Queen B’s message or her in-your-face delivery, it is quite blatantly open for discussion and debate.

However, what is not readily open for discussion is the number of various police unions that are calling for an outright boycott of law enforcement for Beyonce’s upcoming world tour. While the police state that they would respond should Beyonce need help at any time, they are calling for a boycott that “would involve officers refusing to work paid off-duty security for the event, not refusing to perform regular law enforcement duties.” So why are privately-hired individuals who have the right to turn down a job boycotting under the entity of a police union that is, by law, required to defend and serve? Do they not realize that by boycotting the performance they are also refusing to protect all of the thousands of individuals in attendance? Is this a public entity’s agenda presented within the vehicle of a private sector approach? Is a police union an appropriate outlet for boycott under the circumstances? And more so, what kind of message are the police sending?

Arguably, one could inquire about Beyonce’s message and what she is trying to convey to the American people. Like Rudy Giuliani, we could be critical of her approach and view it as a vicious and very public attack on law enforcement. However, that would be blatantly ignoring the fact that Beyonce is an entertainer protected by the ideologies and legal complexities of free speech who does not possess any kind of duty to the public. She is free to say, create, depict, and perform as she pleases so long as she stays within the confines of legality–which she did.

The police, however, live by a different standard than the pop star. Furthermore, as private individuals hired for a private event to serve as security detail, they can absolutely boycott and not take the job. But is it fair to accuse Beyonce of being a cop-hater and spreading anti-police rhetoric? Does advocacy of the #BlackLivesMatter movement automatically associate one with an anti-law enforcement campaign? Are the two mutually exclusive or can we support the #BlackLivesMatter movement while also appreciating the danger and difficulty with which officers do their jobs?

The Miami Fraternal Order of the Police, the Sergeants Benevolent Association in New York City, as well as the Tamp and Nashville police unions seem to find the two mutually exclusive and have urged their respective associations and organizations to boycott the tour. Other police organizations, such as the Raleigh police, are choosing not to boycott the concert held by Beyonce in their respective state.

Like Giuliani stated, we have “to respect the uniform, not to make it appear as if they are the enemy.” Well, I think that applies to all people, not just “the uniform.” Even celebrities have a right to speak out against issues such as police brutality, regardless of whether we agree or disagree with the delivery of their messages.

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Police Officers Boycotting Beyonce: Isn’t this a Little Ironic? appeared first on Law Street.

The world was rocked by the death of 79-year-old Justice Antonin Scalia on Saturday, February 13, 2016. Scalia, the longest-serving justice on the current bench, was appointed by President Ronald Reagan on June 17, 1986 following the resignation of Chief Justice Warren E. Burger. His three decades on the Court have proven to be legendary and exceptionally influential in the interpretation of law and the Constitution. Even his passing has, fittingly, sparked a constitutionally-based showdown of governmental powers and the appointment of a new justice. Read on to learn more about Justice Scalia’s influential and legendary service to the Court and the politically fused debate regarding the appointment of a new Supreme Court Justice.

Who Was Antonin Scalia?

Justice Antonin Scalia was a conservative originalist powerhouse within the Supreme Court who unapologetically defended the Founding Fathers’ intent and precise wording of the Constitution to his last day. His interpretation was fully vested in originalism, an ideology that deems the Constitution a dead document–one inflexible and unchanging to the environment and developments of the world in which it was created.

Scalia was a master in crafting polarizing opinions which were widely criticized by many and revered by others. His stances on women, abortion, and minorities made him an unfavorable justice among Democrats particularly. His protection for privacy highlighted his commitment to the Constitution. Yet, his ability to artfully and logically decipher complex analyses in a nuanced manner was an undeniable talent; Chief Justice John Roberts dubbed Scalia a “leader of the conservative intellectual renaissance.“

Noteworthy Cases: A Legacy Through Opinion and Text

Here is just a sampling of the many noteworthy cases that define Scalia’s time on the court:

The Second Amendment

Justice Scalia delivered the majority opinion for District of Columbia v. Heller in 2008 in a step-by-step breakdown of the operative clause in the Second Amendment, concluding the right to bear arms extended to the people of the United States beyond the context of “militia” as cited in the Second Amendment. Scalia’s opinion further developed the limitations of the right to bear arms, drawing from a historical context and English implementation. He stated,

[T]here seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms…we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Privacy

Scalia led a crusade for the protection of privacy. Justice Scalia’s 2001 opinion in Kyllo v. United States set a clear limitation on police intrusion. In a 5-4 ruling, police were barred from utilizing thermal-imaging devices to explore the insides of a private home otherwise unknown without physical intrusion as a protection of the Fourth Amendment and unreasonable searches without the requisite warrant. The use of thermal-imaging was deemed to be an “intrusion into a constitutionally protected area.”

The Fourth Amendment

Scalia’s conclusion in Florida v. Jardines further cemented the Fourth Amendment definition of a search by finding that the use of a drug-sniffing dog on private property was considered a search and therefore, required a warrant. In 2013, when the Maryland v. King decision granted police the ability to collect and analyze DNA samples from individuals arrested for but not yet convicted of crimes, Justice Scalia delivered a fierce dissent. He stated:

[N]o matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).

He was joined by Justice Ginsburg, Justice Sotomayor, and Justice Kagan in his dissent. Most recently, Justice Scalia supported the decision in Rodriguez v. United States, which extended Fourth Amendment protections for motorists detained for an extended period of time to allow police to conduct a dog-sniff without reasonable suspicion. Such police conduct was found to be in violation of the Fourth Amendment.

Gay Marriage and Rights

Justice Scalia was widely criticized for his conservative  stance on a variety of large-scale issues facing a more progressive America. His dissents regarding LGBTQ rights were particularly controversial. These range from his dissent in United States v. Windsor to his dissent in Lawrence v. Texas in which he stated that the Court had “largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct” when the majority invalidated Texas’ same-sex sodomy ban. In his vehement opposition, Justice Scalia compared homosexuals to drug dealers, prostitutes, and animal abusers, garnering him significant criticism.

Abortion

Justice Scalia continuously criticized the bench on abortion jurisprudence, and stated, in Hodgson v. Minnesota, “I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.”

In 1992, his partial dissent in Planned Parenthood of Southeastern Pennsylvania v. Casey reinforced his stance:

That is, quite simply, the issue in this case: not whether the power of a woman to abort her unborn child is a ‘liberty’ in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the ‘concept of existence, of meaning, of the universe, and of the mystery of human life.’ Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected–because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribe.

After three decades of service, one thing remains starkly clear–Justice Scalia remained dedicated to and bound by the words of the Constitution and what he viewed as the intent of its writers. His stances, often argumentative and unforgiving, remained unwaivering.

Has Justice Scalia’s Passing Caused a Constitution Crisis?

Before Justice Scalia’s passing could properly be mourned, the American public was reminded of the extremely high stakes in the 2016 election as Republicans took to the streets in an effort to prevent President Obama from nominating a justice to fill the current vacancy on the bench. Just thirty minutes after the news of Scalia’s death broke, Ted Cruz took to his Twitter and posted to say: “Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.”

A variety of reasons have been stated for the opposition to nominate Justice Scalia’s replacement. Senator Rand Paul weighed in, finding that a conflict of interest would exist if President Obama made a nomination as he has too many of his own policies before the Court. Conn Caroll, communications director for Utah Republican Mike Lee stated, “What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?” Donald Trump called for the Senate to “delay, delay, delay” and Ted Cruz stated, “the Senate needs to stand strong.” Ohio Governor John Kasich reminded the world, “I just wish we hadn’t run so fast into politics.”

However, Democrats fired back by pointing out that it is written in Article II, Section 2 of the Constitution that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.”

Hillary Clinton commented: “It is outrageous that Republicans in the Senate and on the campaign trail have already pledged to block any replacement that President Obama nominates.” Further reminding the public that President Obama remains in office until January 20, 2017 and has a duty to continue filling his obligations as Commander in Chief. Senator Elizabeth Warren demolished naysayers with the following statement that went viral:

The sudden death of Justice Scalia creates an immediate vacancy on the most important court in the United States. Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did — when President Obama won the 2012 election by five million votes. Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can’t find a clause that says “…except when there’s a year left in the term of a Democratic President.” Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that — empty talk.

President Obama has already pledged that he will fulfill his duty to nominate an individual to fill Justice Scalia’s vacancy and the list of potential nominees includes many extremely qualified individuals. The list includes, but is not limited to: Sri Srinivasan of the District of Columbia Circuit Court of Appeals, Patricia Ann Millett of the D.C. Circuit Court of Appeals, Paul Watford of the Ninth U.S. Circuit Court of Appeals, Merrick Garland, the Chief Justice of the D.C. Circuit Court of Appeals, Attorney General Loretta Lynch, Jane Kelly of the Eighth U.S. Circuit Court of Appeals, and Jacqueline Nguyen of the Ninth U.S. Circuit Court of Appeals.

While it is unclear how the battle between President Obama and the Senate will play out, it is important to note the Senate has never taken more than 125 days to confirm a Presidential Supreme Court nominee. At the time of Justice Scalia’s passing, President Obama still had 342 days left in his term. Since 1900, eight individuals were nominated during election year, six were confirmed. With that said, there is still plenty of time for President Obama to nominate a Supreme Court Justice and for the Senate to confirm–we will just have to wait and see how this constitutional showdown plays out.

Resources

Primary

Cornell Legal Information Institute: District of Columbia v. Heller

 Cornell Legal Information Institute: Texas v. Johnson

Cornell Legal Information Institute: Kyllo v. United States

Oyez: Florida v. Jardines

Cornell Legal Information Institute: Rodriguez v. United States

Cornell Legal Information Institute: United States v. Windsor

 Cornell Legal Information Institute: Lawrence v. Texas

JUSTIA: Hodgson v. Minnesota

Cornell Legal Information Institute: Planned Parenthood of Southeastern Pennsylvania v. Casey

Secondary

Slate: Antonin Scalia Will Be Remembered As One of the Greats

Yahoo! News: Supreme Court Justice Antonin Scalia Found Dead in Texas

Grassfire: Remembering a Titan: The Legacy of Justice Antonin Scalia

 Cornell Legal Information Institute: Bush v. Gore

Atlanta Journal-Constitution: Antonin Scalia: 5 of His Most Famous Decisions

Cornell Legal Information Institute: Planned Parenthood of Southeastern Pennsylvania v. Casey

 Twitter: Ted Cruz

Charters of Freedom: The United States Constitution

Think Progress: It’s a “Conflict of Interest” for Obama to Nominate a Supreme Court Justice

Slate: Could Justice Antonin Scalia’s Death Lead to a Constitutional Crisis?

NDTV: Trump Calls for ‘Delay, Delay, Delay’ on Scalia Successor”

The New York Times: Hillary Clinton Calls Mitch McConnell’s Stance on Supreme Court Nomination ‘Disappointing’

Slate: Obama’s Supreme Court Shortlist

The New York Times: Supreme Court Nominees Considered in Election Year are Usually Confirmed

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post What Does Antonin Scalia’s Death Mean for the Supreme Court? appeared first on Law Street.

The attacks in New York City on 9/11 brought together a nation that every year since has unified on social media and internet outlets under “#9/11” and “#NeverForget.” When a mass shooting at an elementary school in Newtown, Connecticut claimed the lives of 20 children, as well as six adults on December 14, 2012, we prayed and posted: “#PrayForSandyHook” and “SandyHook.” The terrorism in Paris on November 13, 2015 bonded the world through posts and photographs captioning “#PrayForParis.”

“Pray for Paris” courtesy of [Bensun Ho via Flickr]

Following the police shootings and misconduct of Trayvon Martin, Michael Brown, Eric Garner, Tamir Rice, Walter Scott, and so many more, a movement ensued highlighting “#BlackLivesMatter,” which morphed into the debated “#AllLivesMatter” movement. We picketed. We rioted. We protested and stood divided across the nation. We demanded societal change. When a mass shooting claimed the lives of nine people at the Emanuel African Methodist Episcopalian Church, we worked to mend the broken community and sent virtual support with “#PrayforCharleston” demanding more stringent gun control laws and mental health screening.

We have been victims and survivors. We have been divided, yet banded together. We have fought and we have been loud. So where is our unifying and our fighting fervor now? Where is our voice recognizing the 380,000 Nigerian brothers and sisters living within the United States whose families and friends in Nigeria are experiencing sheer terror at the hands of Boko Haram?

Boko Haram, an Islamic militant group whose name loosely translates into “Western education is a sin,” has been waging a murderous war in the poorest part of Nigeria in an effort to overthrow the Nigerian government. While the group has been slowly establishing itself between 2005-2009, it gained worldwide recognition in 2014 when it kidnapped 276 schoolgirls, most of whom have not returned to their families to date.

Mohammed Yusuf, has, over the years, rallied a following to the group through the widespread distribution of his speeches on tapes. So far, his followers have treated human beings like animals–slitting throats without reprieve. In 2009, Yusuf was killed in a security bust, which left the elusive and merciless Abubakar Shekau in charge of Boko Haram. His unforgiving and relentless tactics to make Northern Nigeria an Islamic state have left almost 20,000 people dead–slaughtered. There have been approximately 2.5 million people displaced from their homes and villages, children parentless, mothers widowed, and mass graves full of innocent bodies.

Image courtesy of [EU/ECHO/Isabel Coello via Flickr]

The scariest part? Boko Haram has made good on essentially every threat and every hellish promise made. Most recently, Boko Haram took to bombing the village of Dalori, in the northeastern part of Nigeria, where 86 people were shot, burned, or killed by suicide bombs. A man hiding in a tree heard the shrieks and screams of the children trapped in burning huts as Boko Haram soldiers and supporters destroyed the city. Government troops were unsuccessful in overpowering the militant group.

Boko Haram has pledged its allegiance to ISIS/ISIL and its members have set out to spread terror upon all those who are not willing to join them in their absolutely extremist path to form an Islamic state.

So where is the coverage? Why has the U.S. mainstream media failed to highlight this horrific situation in any detailed capacity? Where are the Twitter feeds and Facebook posts flooding with “#PrayforNigeria” statuses? And where is the action? There has been no lack of military action against ISIS and its ideologies, so where is the same level of response to a terrorist organization that has pledged allegiance to ISIS and has killed thousands? Forget the basic human need and the widespread teachings of terror–are we just willing to help if we have some personal or political interest in mind?

As media dictates the important issues that today’s society will focus on, particularly during election year, has our censorship failed the people of Nigeria?

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Boko Haram and Widespread Terror in Nigeria: Where is the Outrage? appeared first on Law Street.

On January 25, 2016, four years after the major shift that Miller v. Alabama created in juvenile law, the Supreme Court did it again. In a 6-3 decision in Montgomery v. Louisiana, SCOTUS greatly impacted the landscape of juvenile law along with the lives of hundreds of individuals sentenced to a lifetime of prison as young people. The court ruled that Miller retroactively gives juvenile offenders the ability to show that they are “not beyond rehabilitation to become a law-abiding individual” at the time of sentencing.

The much-anticipated present change in juvenile law altered the landscape of the firm stance taken in Miller on June 25, 2012 pertaining to the incarceration of juvenile offenders. At that time, SCOTUS held that sentencing a juvenile homicide offender to life in prison without the possibility of parole was in violation of the Eighth Amendment’s Cruel and Unusual Punishment Clause. The Court’s stance in Miller rounded out a trio of Supreme Court decisions setting up key sentencing protections for juvenile offenders, the first decision was Roper v. Simmons in 2005. In Roper, the Court held that the application of capital punishment and the death penalty was a violation of the Eighth Amendment as applied to juvenile sentencing. Graham v. Florida, decided in 2010, protected juveniles convicted of non-homicidal offenses from being sentenced to life in prison without the possibility of parole under the Eighth Amendment. Continuing its protective trend under the umbrella of the Eighth Amendment, SCOTUS extended the protection identified in Graham to juvenile homicide offenders in Miller.

Read on to learn more about the Miller decision, the changes the Court made on January 25, 2016 in Montgomery v. Louisiana, and what is in store for juvenile offenders sentenced to life without parole prior to June 25, 2012.

A Tale of Tried Teens: Miller v. Alabama

In November 1999, a 14-year-old Kuntrell Jackson (Teen #1) decided to accompany two friends to rob a video store. On the way to the store, Jackson learned that one of his friends had concealed and brought with him a sawed off shot gun in his coat sleeve. Jackson made the decision to stay outside of the store when his friends went in. Ultimately, the store clerk refused to give the young boys the money they demanded and she was shot and killed.

Under Arkansas law, 14-year-old Jackson was charged as an adult for capital felony murder and aggravated robbery. He was convicted of both crimes. A motion was filed to transfer the case to juvenile court, but was subsequently denied by the court and affirmed on appeal. Further, a habeas corpus petition was filed on his behalf after the Roper decision, but was dismissed. While the ruling was on appeal, SCOTUS made the Graham decision. The Arkansas Supreme Court affirmed the dismissal based on both Roper and Graham.

Subsequently, 14-year-old Evan Miller (Teen #2), a troubled young boy bouncing in and out of foster homes who had attempted suicide four times already, was about to have his life changed. Miller and his friend followed Cole Cannon, a drug dealer, to his trailer where they smoked marijuana and played drinking games. When Cannon passed out, the boys stole his wallet and took out $300 to split, but Cannon woke up and a fight ensued. Miller struck Cannon repeatedly with a baseball bat. The boys came back later and lit the trailer on fire, ultimately killing Cannon. Pursuant to Alabama law, Miller had to be charged as a juvenile, but the District Attorney was granted a transfer to adult court. Miller was charged and convicted of murder in the course of arson, which carries a mandatory minimum of life without parole. The Alabama Court of Criminal Appeals confirmed the sentence and the Alabama Supreme Court denied review.

The Supreme Court of the United States granted certiorari and agreed to review both cases together, as one.

In its rationalization, the Court immediately established that children are “constitutionally different from adults for purposes of sentencing” in the sense that they have diminished culpability and have a greater capacity for reform in the future. Further, the Court emphasized key points from Roper and Graham, identifying that children lack maturity and appreciation for responsibility leading to potential reckless behavior and are more vulnerable and impressionable by negative influences. Therefore, a fundamental difference exists when analyzing adult culpability for sentencing purposes and children. For Eighth Amendment purposes, the Court viewed age as a relevant factor for sentencing.

The Court ultimately held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.”

Montgomery v. Louisiana

Now, for the case that was just decided in 2016, we need to flash back to 1963 when 17-year-old Henry Montgomery killed a deputy sheriff in East Baton Rouge, Louisiana. Montgomery was found guilty and sentenced to death. Shortly thereafter, the Louisiana Supreme Court reversed his conviction finding that the public nature of the trial and public prejudice prevented Montgomery from having a fair trial.

The case was retried and the jury returned a verdict of “guilty without capital punishment,” which required the sentence to be life without the possibility of parole.

Flash forward to when Henry Montgomery is 69-years-old. He has spent the last 53 years in custody and behind bars, even facing the emotional journey that comes with being sentenced to death at one point. Up until 2012, Henry Montgomery was prepared to die in prison until a little bit of hope cloaked in the form of Miller v. Alabama surfaced to light.

Most relevant to Montgomery’s case is the fact that the Miller decision noted the importance of youth and age on an offense: “by making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, mandatory life without parole poses too great a risk of disproportionate punishment.” Thus, the disconnect between a juvenile offense and the harsh punishments of life in prison without the opportunity for parole created cruel and excessive penalties for individuals unable to fully understand the culpability of their actions.

Following the Miller decision, Montgomery filed a motion for collateral review on the basis that life without parole for a juvenile offender constituted an illegal sentence. The trial court denied Montgomery’s motion on the ground that the Miller Court did not make a decision that was to be applied retroactively–or applied to cases that were conducted and offenders that had received final sentences prior to June 25, 2012. The Louisiana Supreme Court subsequently denied Montgomery’s application for a supervisory writ.

Upon review by the Supreme Court, they held that Miller was, in fact, retroactive, stating “like other substantive rules, Miller is retroactive because it necessarily carr[ies] a significant risk that a defendant – here, the vast majority of juvenile offenders – faces a punishment that the law cannot impose upon him.” The Court recognized the grave risk in disproportionate sentencing for which detention may be in violation of the Constitution on January 25, 2016.

How Does This Affect Other Juvenile Homicide Offenders?

The Supreme Court’s ruling on January 25, 2016 opened the door to hundreds of miracles. While it did not give all juveniles sentenced to prison for life without parole prior to June 25, 2012 a free pass, it gave them the right to re-sentencing hearings, if they are able to provide proof of rehabilitation, change, and evidence of good behavior during their time behind bars. It will be up to the states to review the case and make a decision as to whether the individual may be released or resentenced under the new Supreme Court holding.

This ruling was considered a win for juvenile law advocates who have been fighting to give a second chance at life to those individuals that entered prison as young teens and have only know life as an incarcerated person for twenty, thirty, even fifty years. They were overjoyed at the victory in the form of applicable retroactivity.

However, it does not come without criticism. Since the Supreme Court reviewed the case from a state court and took a moment to note that Montgomery has, in fact, turned his life around in the last 53 years, they did not and could not rule on that basis. The state controls his release. While Montgomery is likely to be released or in some way benefit from this case outcome, other juvenile inmates could be in trouble if Louisiana amends its state laws regarding post-conviction relief. Louisiana could flex its state muscle and amend its laws to prohibit post-conviction review of cases based on federal, rather than state law. In that case, any individual within that state that was sentenced to life in prison without parole as a juvenile would not have access to a resentencing hearing. Currently, Pennsylvania, Louisiana, and Michigan have the highest amount of juveniles sentences to life without parole. Only time will tell what action Louisiana and other states with similar laws will opt to do.

Resources

Primary

Supreme Court of the United States: Montgomery v. Louisiana

Additional

Cornell University Law School – Legal Information Institute: Miller v. Alabama 

Cornell University Law School – Legal Information Institute: Romper v. Simmons

Cornell University Law School – Legal Information Institute: Graham v. Florida

SCOTUSblog: Further Limit on Life Sentences for Youthful Offenders

 MLive: The Supreme Court Just Gave Juvenile Lifers a Shot at Parole

 Juvenile Law Center: Montgomery v. Louisiana

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Juveniles with Life Sentences: Will They Get Second Chances Thanks to SCOTUS? appeared first on Law Street.

Racial discrimination by law enforcement has been a long standing issue in the United States. However, in the last couple of years, beginning with the dire situation in Ferguson, Missouri and the mirror images in Maryland, Illinois, New York, and a number of other locations across the country, the public at large has become increasingly aware of the systemic abuse against minorities.

A small piece of victory was served for individuals experiencing systemic abuses by law enforcement as Daniel Holtzclaw, an Oklahoma City police officer, was sentenced to 263 years in prison on January 22, 2015. His trial commenced on November 2, 2015 and was highly criticized for having an all white jury. However, approximately one month before being sentenced, Holtzclaw was convicted by that jury for 18 out of the 36 counts for which he was charged. The sentence, which is to be served consecutively as opposed to concurrently, seeks to rectify the wrongs done to Holtzclaw’s 13 victims (ranging from a 17-year-old teenager to a 57-year-old grandmother), including four counts of first-degree rape and four counts of forced oral sodomy.

The frightening part–Holtzclaw had a strategy to his clearly calculated rapes and sexual assaults. He targeted black women in one of Oklahoma City’s poorest neighborhoods who he knew had criminal histories, predominantly drug and prostitution records, which he could leverage against them should they threaten to approach authorities for his abusive behavior. Which worked…until it didn’t.

Jannie Ligons, a 57-year-old grandmother of 12, was stopped at approximately 2 AM on June 18, 2015 driving through the poor neighborhood in which many of his other victims had been confronted. Holtzclaw made a huge mistake in assuming that Ligons was a resident of the neighborhood, had a low social status, and had reasons to fear the authorities. Quite the costly “mistake” if you ask me. Her testimony recounted the graphic and horrifying details following Holtzclaw’s stop. I do have to issue a warning, as it is graphic.

Returning home from a game of dominoes with a friend, Ligons was stopped by Holtzclaw who was ending his shift. Due to a broken driver-side window, Ligons was directed to the rear passenger side seat of the vehicle and was asked if she had been drinking or if there was anything in her vehicle that she was hiding. She denied possessing anything illegal or to have been drinking. Holtzclaw did not believe her. He demanded that she get out of her vehicle so that he could check her. Holtzclaw demanded that she lift her shirt, which she did, to reveal her stomach. After telling her that was not good enough as something could be hiding in her bra, he forced her to lift her shirt and bra and shone a light on her exposed breasts.

As she noticed Holtzclaw playing with his penis at this time, she heard him instruct her to stand up and pull her pants down. Leaving her underwear on, Holtzclaw shone the light in her private area and demanded she sit back down. She obliged, distressed, only to look up and see his penis in her face. “Please don’t do this…you’re not supposed to do this,” she begged as he forced himself into her mouth. Ligons thought he was going to kill her. He threatened to follow her home, but as she pulled into a driveway to do a U-turn, Holtzclaw took off unexpectedly.

Ligons called the police when she got home. When no one at the police station answered, she and her daughter drove to the station to file the assault. Ligons was taken to the hospital with Kim Davis, an officer of the Oklahoma City Police Sex Crimes Unit, and underwent a sexual assault medical forensic exam. The report filed by Ligons led the Sex Crimes Unit to an unsolved report, and ultimately, to the discovery of a number of victims subjected to Holtzclaw’s sexual abuses, assaults, and rapes.

Other women have recollected their experiences with Holtzclaw, depicting the clear fear for their lives while in his custody. A woman identified as “T.M.,” a known drug user and prostitute, was forced to perform oral sex in order to avoid jail and ended up screaming for her life when Holtzclaw drove her to an open park area, fearing rape and potentially, death. The GPS recorder on Holtzclaw’s police car matched T.M’s testimony.

Further, Holtzclaw violated police protocol for searches of females and even went so far as to touch the bare breasts of victims while conducting searches, stating that they needed to “just play by my rules,” in order to avoid further charges or jail time. Holtzclaw even proceeded to go to the home of one of the victims and harass her at home, while with her family, which ultimately led to the stalking charges against him. Several other victims reported that Holtzclaw entered their homes and raped them while inside. He even raped 24-year-old Sade Hill in her hospital bed as she was detoxing from a spout of intoxication.

As if the killing of innocent and unarmed young black men has not been a frightening and infuriating display of racial discrimination by police, the case against Holtzclaw uncovers an even more troubling layer of abuse–vulnerable black women of low socioeconomic status unable to defend themselves, particularly due to their criminal histories and fear of authorities. Minorities of low socioeconomic status appear to be dispensable scapegoats to law enforcement at this day in age and frankly, it is an unacceptable and outrageous display of power by those trained to protect and serve. While the citizens of the United States continue to protest, demand change, and incite much needed action, a little solace can be taken in the fact that individuals like Holtzclaw and those who abuse their authority and prey on people incapable of fighting sometimes get the cosmic dose of karma their actions deserve.

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Daniel Holtzclaw Sentenced to 263 Years in Prison appeared first on Law Street.

President Barack Obama is set to face the gauntlet as the Supreme Court gears up to hear a case that challenges the President’s use of executive power, has the potential to wreck havoc on the 2016 Presidential election, and may go beyond judicial power by granting states more rights and control than the national government on a notoriously federally controlled area of law and politics–immigration. Twenty-six states are challenging the President’s executive actions relating to immigration implementations made in 2014 as an abuse of power and an attempt to circumvent Capitol Hill on policy making.

To date, the case is scheduled to be resolved by the court in June 2016 as the Supreme Court issued that it would review the case, thereby granting the President the authority to execute the programs prior to leaving office, should he be victorious. Read on to learn more about the executive actions in question, the procedural posture and legal history of the case, and what it all could mean for U.S. citizens and aliens in the future.

DAPA and DACA: The Troublesome Two

On November 20, 2014, an executive order was issued expanding the rights of individuals within the Deferred Action for Childhood Arrivals (DACA) program and introduced the creation of Deferred Action for Parents of Americans (DAPA).

DACA, a program created in 2012, allows undocumented young people who came to the U.S. as children relief from deportation so long as specific criteria are met. These criteria include: 1) must be under 31 years of age as of June 15, 2012; 2) must have entered the U.S. under the age of 16; 3) must show continuous residence in the U.S. from June 15, 2007 until the present; 4) entered the U.S. without inspection (EWI) or fell out of a lawful visa status before June 15, 2012; 5) were physically present in the U.S. when applying for consideration of deferred action; 6) are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces; 7) have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors; and 8) do not pose a threat to national security or public safety.

Initially, DACA was available for a period of two years at a time–meaning that individuals were only granted temporary relief for two years before they had to re-apply and be approved by the government again. DACA also included a work authorization for those approved, but the executive action of 2014 made it and the work authorization renewable in three-year increments. Additionally, the requirement that the individual be under 31 years old as of June 15, 2012 or now no longer applies. The new DACA provisions do not discriminate against those currently over 31 years old. Further, the eligibility cut-off date was moved from June 15, 2007 to January 1, 2010. Anyone applying must show physical presence in the U.S. prior to January 1, 2010 and during the time of application.

DAPA, unlike DACA, did not have a predecessor. Under DAPA, individuals that have children who are U.S. citizens or lawful permanent residents (LPRs) may obtain relief from removal should they meet the following criteria: 1) as of November 20, 2014, have a son or daughter who is a citizen or LPR; 2) have continuously resided in the U.S. since or before January 1, 2010; 3) are physically present in the U.S. as of November 20, 2014 and during their application for consideration; 4) have no lawful status as of November 20, 2014; 5) are not an enforcement priority; and 5) present no additional factors that would deem the granting of their application inappropriate.

Deferred action is an administrative mechanism used by the U.S. government to de-prioritize individual cases for removal for “humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission.” It is a way for the government to categorize the urgency with which individuals be removed from the country. Generally speaking, deferred action carries great discretion. It can be terminated at any point should the U.S. Department of Homeland Security deem termination appropriate and necessary. Furthermore, receiving DACA or DAPA does not provide legal status, a pathway to citizenship, or a pathway to obtain a green card, but rather permits for an individual to be legally present within the U.S. for a specified period of time. In order to be a valid permission, deferred action applications must be considered on a case-by-case basis and do not apply as all-inclusive or sweeping legal policies. An application process is required and permission must be granted for an individual to continue to stay within the U.S.

Substantive rights, immigration status, and pathways to citizenship are under the control of Congress. Only Congress can confer such rights and policies upon individuals within the confines of the U.S. However, the Executive Branch has the authority to set forth policies under prosecutorial discretion and deferred action so long as they fall within the framework of existing law.

The 26 states named in the lawsuit are greatly dissatisfied by the way that President Obama has taken to resolving the many pitfalls of current immigration policy and justice. A major point of contention for the states is that the President allegedly worked to circumvent Congressional authority and undermined the importance of the notice-and-comment process pursuant to administrative law. Notice-and-comment is an informal rule-making process, codified in the Administrative Procedure Act (APA) under § 553. It requires the agency proposing the rule to publish its proposal in the Federal Register and grant opponents or supporters of the proposed rule to comment, amend, present data and evidence for or against, and generally speaking, participate in the development of a newly proposed rule.

Additionally, while immigration is an issue controlled by federal law, the states fear that the changes made to federal immigration laws will place a great burden on the states to change their laws and be forced to provide services they are unable or unwilling to provide to individuals lacking legal status. Specifically, some states worry that the quasi-legal status and work authorizations will require the states to provide “state-subsidized driver’s licenses and unemployment insurance.”

Image Courtesy Of [Nevele Otseog via Flickr]

History of Legal Action: The Procedural Posture

Shortly after President Obama’s executive action on November 20, 2014, the highly publicized Maricopa County Sheriff, Joe Arpaio, challenged the action on behalf of Arizona in a case called Arpaio v. Obama. Arpaio’s lawsuit was dismissed by the Washington, D.C. federal court and upheld unanimously by the D.C. Circuit Court of Appeals on August 14, 2015. That decision has not been appealed to the Supreme Court.

Following in Sheriff Arpaio’s footsteps, 17 states filed a lawsuit, with 9 states joining thereafter, challenging President Obama in Texas v. United States. The President held the support of 15 states and D.C., who filed “friend of the court” briefs on his behalf. Ultimately, the Texas federal court blocked President Obama’s initiatives on a procedural basis on February 16, 2015. U.S. District Court Judge Andrew Hanen found that Texas had standing, or legal capacity and authority, to sue and that the President did not comply with the requirements of the APA, particularly the requisite need for notice-and-comment. It rationalized that the changes enacted by President Obama were substantive rules rather than simple alterations to existing and general policy, which required a specific procedural process.

The Department of Justice subsequently appealed the lower court’s decision and argued the case in front of the Fifth Circuit Court of Appeals on July 10, 2015. In a split decision, the Fifth Circuit upheld the lower court’s ruling, 2-1. The majority decision, authored by Judge Jerry E. Smith, found that Texas did, in fact, have standing to sue and that the changes to policy would greatly increase state costs and burden the states with additional processes and services as required by the national law. While it recognized that judicial review was unavailable under the APA in matters pertaining to agency discretion, it noted that the changes made to DACA and DAPA required notice-and-comment rule-making, and therefore, were non-discretionary. Further, the court ruled on an issue unaddressed by the district court and found that the President’s interpretation of the Immigration and Nationality Act (INA) was misguided and inaccurate because it vested great authority to the Secretary of U.S. Department of Homeland Security. This indirectly re-classified the specified classifications of immigrants codified in the INA and those petitioning to enter, all in violation of the Act itself.

Judge Carolyn King of the Fifth Circuit delivered a blunt dissent, ultimately stating, “I have a firm and definite conviction that a mistake has been made.” Further, Judge King argued that the case should have been dismissed as it follows prosecutorial discretion and therefore, not subject to review by federal courts. In criticism of her colleagues, she penned that allowing states to dictate national policy, particularly in areas solely within federal control, would be a great intrusion to the long-standing separations between government and state. Judge King added that the President’s executive actions were matters of general policy not subject to notice-and-comment procedure and that the interpretation of law under the INA actually sought to further the Department of Homeland Security’s mission in “[e]stablishing national immigration enforcement policies and priorities.”

Critics of the decision, including Judge King herself, highlighted the fact that the expedited appeal was anything but, as the Fifth Circuit took a very long time to render an opinion, likely in an effort to place the case under review by the Supreme Court after the conclusion of President Obama’s term in office.

The Petition Filed by the Department of Justice

In a writ of certiorari petition filed on November 20, 2015, exactly one year from the President’s executive actions, the Department of Justice sought review of U.S. v. Texas by the Supreme Court. While the Court has yet to make a decision as to whether it will review the case or not, the petition outlined key elements of President Obama’s argument demanding for review of this extremely crucial issue.

The DOJ Claims Valid Authority for Action Over States

The Department of Justice highlighted that the authority to make any and all immigration laws and policies is vested in the federal government, particularly under the control of the Secretary of the Department of Homeland Security, who hold authority to establish regulations pertaining to removal and admissibility rules. The Department has broad discretion over enforcement of immigration laws and the ability to prioritize which offenses or conduct deems immediate removal and which groups are not the top priority of government funds allocated for removal and enforcement. While 11 million removable aliens are estimated to live in the United States, the Department can only remove approximately 4 percent of those individuals within a given year. Congress has granted the Department $1.6 billion to remove those convicted of deportable crimes, thereby committing to the Secretary’s discretion in handling these cases in the most efficient manner possible. Therefore, prioritizing is of utmost importance to best allocate funding.

Additionally, the Department emphasized that continued presence through deferred action does not violate any criminal laws, as removal and inadmissibility under immigration laws is civil in nature. Deferred action has been an “exercise in administrative discretion,” that can be revoked at any point in time. It does not offer any legal status to those that fall within its classification. What is offered under deferred action, however, is work authorization protecting such individuals from exploitation under U.S. labor laws, subjecting them to taxation, Social Security, and welfare payments, and providing them with a way to make ends meet so they do not become a burden on U.S. citizens and society. Only “qualified” aliens are entitled to public benefits provided by the state in which they reside, and individuals lawfully allowed to stay within the U.S. under deferred action status are not deemed “qualified,” therefore, they are not entitled to public benefits unless their state specifically provides those under its own laws.

The Sticking Points: Substantive Arguments Against the States

Deferred action has been utilized in a variety of ways to grant individuals lawful presence in the U.S. Examples include individuals who petitioned under the Violence Against Women Act of 1994 and individuals whose lawful family members were killed on September 11, 2001 or in combat were granted temporary relief from deportation under deferred action. Decisions made based on deferred action have legally and historically been barred from judicial review.

Key elements of the petition included the Secretary’s discretion in enforcing immigration laws under resource constraints, the historical utilization of deferred action and its revocability, the security and economic interests in paying fees and applying for work authorization, and the effect that the divided Court of Appeals decision could have on the States’ ability to “frustrate the federal government’s enforcement of the Nation’s immigration laws.”

The petition discussed the lack of standing or authority by the states to bring the lawsuit, stating that private parties lack any “judicially cognizable interest” in the enforcement of immigration laws that are not threatened by prosecution, nor do collateral consequences of federal immigration policy grant a state standing to bring suit. Further, the Department of Justice noted that even if the states were able to show standing to sue, they would have to identify injury resulting from the specified policy that affects it in an “individual way.” Such an expansive reading of state standing would open a door for many more federal-state disputes in the long run and give states far-reaching and independent authority to challenge federal laws with more regularity.

The government further argued that the states lack a valid claim under the Administrative Procedure Act, as the Act does not allow suit by every individual “suffering an injury in fact,” and strictly limits the scope of judicial review to those who are “adversely affected or aggrieved by agency action.” Additionally, the government noted that the agency’s discretion in deferred action is not reviewable by the courts as there is “no meaningful standard against which to judge the agency’s exercise of discretion.”

An entire section of the petition offered examples of the Secretary’s authority to implement deferred action without challenge due to the long-standing history and nation of this power. Ultimately, the Department of Justice pointed to the authority vested in the Secretary to implement the executive actions as lawful within the scope of his power. Finally, the petition outlines the reasoning for why the deferred action is not subject to notice-and-comment rule-making as required by the APA because the actions were “general statements of policy” exempt from such procedural requirements.

What Could It All Mean?

Should the Supreme Court uphold the Fifth Circuit’s decision, great authority would be vested onto the states over a historically federal issue, making it inexplicably difficult to pass any immigration laws on a national level. It would force millions of people, subject to removal but not removal priorities, to continue living in the U.S., working off the books or not working at all, potentially creating a burden on society in the long run. Further, it could ultimately punish the individuals that gained temporary lawful relief under the 2012 DACA provisions that have never been challenged by any of the 26 states in question. The decisions spanning over the last year could potentially invalidate the 2012 DACA actions as well.

While the importance of review is undoubtedly clear, from an administrative law aspect, a constitutional law aspect, as well as a separation of powers aspect, it is unclear exactly what the fruit of review will be. If history were any indication, President Obama would be victorious in his challenge. However, the lower courts have addressed key issues that fall squarely within the context of interpretation and interestingly added some of their own issues, which remain undecided by the district court. How the Supreme Court reads and interprets the statutes in question, as well as its analysis of the interworkings of several federal laws will be determinative for its decision. This may ultimately be a case about procedure and the process of implementation rather than power and constitutionality of law.

Resources

Primary

United States of America v. Texas: Writ of Certiorari

 U.S. Department of Homeland Security: Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children and With Respect to Certain Individuals Who are Parents of U.S. Citizens or Permanent Residents

Additional

Politico: Obama Administration Takes Immigration Battle to Supreme Court

Politico: SCOTUS Keeps Obama Immigration Case on Track For Ruling by Summer

Cornell University Law School – Legal Information Institute: 5 U.S. Code § 553 – Rule Making

Immigration Equality: Deferred Action for Childhood Arrivals

 The Atlantic: A Ruling Against the Obama Administration on Immigration

 The New York Times: Appeals Court Deals Blow to Obama’s Immigration Plans

American Immigration Council: Understanding the Legal Challenges to Executive Action

 National Public Radio (NPR): Supreme Court Agrees to Hear Case on Obama’s Immigration Actions

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post The Federal Government’s Immigration Showdown: SCOTUS Will Decide appeared first on Law Street.

Schools have become a frightening place for parents to send their children. From the horrors of lives lost at Sandy Hook Elementary, to those mourned at Columbine, to the controversies faced with “No Child Left Behind” and the Common Core curriculum, there’s now the terror that the people who take care of and teach our children could sexually abuse such innocent and unsuspecting lives.

On December 23, 2015, St. George’s School, an elite Newport, Rhode Island prep school unveiled an investigative report recognizing that 26 credible witnesses/individuals have come forward “strongly suggesting” that there were six perpetrators, who were employees of St. George’s School, that “engaged in sexual misconduct” with a number of students. Firsthand accounts and corroborating evidence depict that there were a total of 23 victims. The scope of the scandal has greatly increased since the release of the report, as a rising total of at least 40 St. George’s alumni have since come forth with credible accounts of sexual misconduct, even allegations of rape, by a total of seven St. George employees.

While St. George’s sincerely apologized to the victims in the report it released and offered immediate counseling to the individuals that underwent traumatic events as a result of unreported sexual misconduct spanning several decades, victims demanded more. Some of the victims viewed the investigation conducted by St. George to be “a sanitized version of events and said it was not truly independent because it was conducted by a lawyer, Will Hannum, whose partner is the school’s counsel.” As such, a new, comprehensive, and independent investigation will be conducted into the allegations of sexual misconduct–it was just announced that Scott Harshburger, a former Attorney General of Massachusetts, will be the investigator.

The discrepancies in the total number of victims, as well as the number of perpetrators, suggest that there could be unchecked allegations pertaining to the longstanding reporting of the alleged incidents. Leslie Heaney, a 1992 graduate of St. George and current chairwoman of the school’s board of trustees stated, “the board is committed to a truly impartial investigation. There is nothing more important to us than that the review be thorough and exhaustive, and that its findings are found to be reliable and credible by all parties, particularly the victims.”

Reports suggest that the sexual misconduct took place from 1974-2004. Of the seven former St. George’s employees reported to have been involved in sexual misconduct, only four are still alive. Furthermore, the misconduct resulting in the termination of each former employee was allegedly never reported to any authorities nor were potential future employers, other schools and educational settings, warned about the sexual misconduct against minors done at the hands of the perpetrators that they potentially hired. The victims’ attorneys have noted that the Massachusetts legislature is currently considering what is known as the “pass the trash” bill–which refers to the practice of passing on teachers that have been terminated or dismissed for inappropriate conduct and behavior unbecoming of a professional in an education setting without reporting such problems and potentially putting others in jeopardy. The bill would work to criminalize a failure to report a complaint of sexual misconduct in private and public schools–maybe it would be worth considering a similar act in other states.

Victims are calling for the head of the school, Eric Peterson, to resign. They believe that he has played a part in covering up the incidents and being quite unresponsive to the complaints made against St. George’s former employees. However, the school has indicated that Peterson will not resign or be required to resign, that he has greatly supported the “vigorous investigation of alleged sexual abuse,” and has been very compassionate and empathetic toward all of the victims that have come forward about with allegations of sexual misconduct.

Sexual abuse of children in the education system, particularly in private schools that have the discretion to report such misconduct, is becoming the boogeyman of primary education concerns as media coverage of such incidents continues to increase. Even more frightening is the fact that the perpetrators of sexual misconduct of students and children tend to be individuals either employed or associated with schools–i.e. teachers, coaches, student aides and workers, as well as administrative staff. Additionally, state legislatures’ decisions can create very unsettling gaps in protection from sexual misconduct against students. For example, in New York State, where there are approximately 2,161 private schools attended by over 492,000 children, private school students are excluded from the State’s Education Law 23-B, entitled “Child Abuse in an Educational Setting” which only applies to public and charter schools, leaving private school students subject to sexual misconduct abuses without protection. Various organizations have taken on lobbying efforts to raise awareness of such gaps and mend the system to include private school students in the states that exclude such students from their laws.

The issue of sexual misconduct in a school setting has taken center stage in the media as the new, comprehensive investigation gets underway for St. George School. As the investigation continues and potential victims continue to come forward, St. George School will be under a microscope to see how the situation is handled and how schools in general react to their findings in providing greater protections for students. All we can do is wait to see how the tragedy in Rhode Island plays out, hope that justice is served for all victims who suffered great trauma due to the horrendous acts of school employees, and rally for a change in school policies relating to sexual misconduct and the protections offered to students.

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post St. George’s: Sex Abuse Scandal Rocks a Rhode Island Town appeared first on Law Street.

On December 28, 2015, South Korea and Japan entered into a monumental agreement as the countries addressed the injustices made against “comfort women“–approximately 200,000 South Korean women who were recruited into prostitution and servitude by the Imperial Japanese Army during World War II. Women, some as young as 11, were kidnapped during this time, forced into sexual bondage and servitude where they were raped, tortured, and subjected to extreme violence by Japanese soldiers in “comfort stations” found in Japanese military camps. To date, this barbaric and horrific behavior left an open, festering, and unaddressed wound causing heavy tensions between the two nations for several decades.

The agreement reached required action on both sides as Japan admitted that it was “painfully aware of responsibilities from this perspective,” referring to the attack on the women of South Korea’s honor and dignity. Japan sincerely apologized–something it was not willing to do before as it questioned whether it was responsible for the development of “comfort women,” and additionally, it agreed to provide ¥1 billion ($8.3 million) in government funds to the South Korean women subjected to prostitution during WWII by the Japanese Army. In compliance with the agreement, South Korea agreed to accept the monetary compensation through a fund rather than a direct compensation to the women who had suffered so that the “money didn’t represent direct compensation for wrongdoing.” Critics of the agreement noted that the development of a fund rather than direct compensation was Japan’s way of avoiding the recognition that the women recruited into prostitution were done so “by the Japanese government and military systematically.”

Regardless of criticism, the landmark agreement reached between Japan and South Korea is a big deal for human rights. While forced prostitution, sex slaves, and human trafficking in Asia may not call for direct attention from the West, the trade is a massive violation of human rights and a booming business–as it is “the fastest growing industry in the world, and the second largest business after arms dealing in the 21st century.” Read on to learn more about “comfort women,” the wound left by the Imperial Japanese Army following WWII, and the attention that comfort women have brought to the human trafficking violations occurring today.

“Comfort Women” Beginnings

In August of 1910, Japan annexed the sovereign nation of what once was Korea and begun its 35-year-long imperial hold over the area and its people. In 1931, Japan launched what presumably would be noted as the start of WWII with its invasion of Manchuria, which ultimately led to its progression through China and Southeast Asia.

During this time, Japanese soldiers began to develop areas within their military camps dubbed “comfort stations” where they would be able unwind after long days of fighting and obtain sexual services. These stations were full of kidnapped and imprisoned women that were raped and forced to service soldiers dozens of times per day.

Japanese soldiers largely recruited women from Korean communities by luring them with promises of good jobs in big cities. Their dreams quickly came crashing down as they were locked up in three foot by five foot rooms in Japanese military bases and suffered the harshest of conditions–forced into sexual servitude, which at certain times could reach up to 60-70 encounters with soldiers per day. As war ensued, the Japanese military’s numbers increased and the soldiers began raiding villages and simply taking women as they pleased and killed anyone that stood in their way or protested against their behavior. The more need or desire that was expressed by the soldiers, the more brutal and barbaric the recruitment and treatment of comfort women became. Furthermore, women were cramped into tight spaces only separated by a tatami or a mat that did not reach the floor leaving the women exposed to others during rapes and beatings and allowing for sound to travel easily from cubicle to cubicle.

Accordingly, to ensure that a young woman was a virgin or of very immature sexual status and development, Japanese soldiers specifically targeted young women between the ages of 14-18. Women who tried to fight for themselves ended up dead or sterilized. Survivors of these horrendous crimes recounted the following:

We had to serve over 5,000 Japanese soldiers as sex slaves every day – up to 40 men per day. Each time I protested, they hit me or stuffed rags in my mouth. One held a matchstick to my private parts until I obeyed him. One Korean girl caught a venereal disease from being raped so often and, as a result, over 50 Japanese soldiers were infected. In order to stop the disease from spreading and to ’sterilize’ the Korean girl, they stuck a hot iron bar in her private parts. –Testimony of Chong Ok Sun

One day, a new girl was put in the compartment next to me. She tried to resist the men and bit one of them in his arm. She was then taken to the courtyard and in front of all of us, her head was cut off with a sword and her body was cut into small pieces. –Testimony of Hwang So Gyun

Venereal disease and fear of pregnancy plagued the women that were forced to service Japanese soldiers. One woman recollected that her son was born mentally handicapped because of the numerous diseases she had caught during her servitude. They were also expected to continue serving even through their menstrual cycle. The “Ten Day Report of the 21st Army Unit of the Japanese Army stationed at Kwandong, China, from 11 to 21 April 1939″ highlighted the fact that approximately 1,000 “comfort women” served 100,000 soldiers in that specified region during that time. Their service was required even in the harshest, most unacceptable of conditions, otherwise, these women met death.

Due to the lack of specific and official documentation, many of the injustices done to the young women kidnapped from their homes in Korea during WWII were not addressed. Very few documents throughout the course of history have directly been linked to the Imperial Japanese soldiers’ barbaric behaviors and actions. The substantive and now recognized facts pertaining to the recruitment and treatment of comfort women during this time was easily refuted post WWII as it was only recollected testimony from the victims and survivors themselves.

This is precisely why Japan long refused to acknowledge that it was responsible for the horrors done to comfort women. As decades passed and South Korean survivors demanded an apology without avail, Japan continued to ignore or defend its soldiers’ reprehensible acts. This emotional and dark past drove territorial disputes and in some cases caused the nations to work against each other on issues that threatened both due to geographical and geopolitical standing, such as “North Korean belligerence and Chinese assertiveness.” Japan and South Korea’s move to formulate an agreement and put the dark past behind them has allowed for some people of South Korea to feel as if justice was finally served and granted the two nations the ability to move forward in cooperation.

Modern Day Slavery: Sex and Labor Trafficking

It’s very difficult to estimate the exact number of modern-day human trafficking victims however, current data finds that approximately 36 million people are being trafficked, nearly 2/3 coming from Asia. While this industry is dark and dirty, it keeps growing because the revenue generated has totaled approximately $150 billion in profit. The international community has, to date, been unsuccessful in tackling human trafficking, both sex and labor trafficking, due to its inability to decipher the populations being affected, the geographical locations that face the most dire circumstances, how to properly define the issue, and how to enforce the agreements that have been in place but fail to be followed by local law enforcement of the regions suffering. The fact that it took Japan several decades to recognize its injustices and begin the reconciliation process with South Korea and its victims highlights the difficulty in showing harm done and getting all parties to listen for a meaningful resolution.

Weak national legislation and corrupt government conduct has contributed to the growing human trafficking problem in Asia. For example, all Association of Southeast Asian Nations, or ASEAN, are part of the “Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime,” which is a non-binding and voluntary forum created in 2002 that is co-chaired by the governments of Indonesia and Australia. Even with their involvement in such forums, and considering the fact there are only a few ASEAN nations that have yet to pass anti-trafficking laws, there is still a growing challenge in getting these countries to take practical action to combat human trafficking–funding for projects that are not a priority is next to impossible. Trying to find funding for such projects in nations where poverty levels are high and government funds depleted poses a significant challenge to victimized and suffering communities.

Human trafficking is not simply a problem to throw money at–it requires a plan with a solution, education of victims and law enforcement, and an adequately functioning government that will enforce the laws and procedures that it has agreed to regarding trafficking. The issue ultimately becomes local level enforcement, something that the international community has desperately failed to resolve.

Conclusion

While absolutely nothing will free these survivors of the grotesque crimes they endured, Japan’s recognition of the injustices done to South Korean women during WWII is a step forward in reconciling the deep and unapologetic wound left by Japanese soldiers, one that had thus far been denied altogether or swept under history’s rug. The agreement made between Japan and South Korea at the end of December not only sought to right the wrongs made at the hands of Japanese soldiers, but brought to light the horrors of human trafficking and modern day slavery that still largely exists in Asia.

Regardless of the difficulties that human trafficking presents for both survivors and advocates, it is clear that the agreement between South Korea and Japan has placed the horrors of sex trafficking and forced prostitution on a recognizable world stage, particularly by the West. It has worked to restore a sense of dignity and humility back into the lives of former comfort women that are still living today with the scars of a dark and unimaginable past and sought to provide funding to survivors in South Korea for the wrongs endured.

Resources

Primary

The Wall Street Journal: Full Text – Japan-South Korea Statement on “Comfort Women”

Additional

Yahoo! News: South Korea, Japan Agree to Irreversibly End “Comfort Women” Row

The Wall Street Journal: Japan, South Korea Agree to Aid for “Comfort Women”

The Huffington Post: The History of ‘Comfort Women’: A WWII Tragedy We Can’t Forget

 Vox: “Comfort Women”: Japan’s 70-Year Sex Slavery Controversy, Explained

United Nations: Economic and Social Council

 National Public Radio (NPR): Elise Goes East!: Revisiting a UN Report on ‘Comfort Women’ as Shinzo Abe Tours the US

Heritage: Combating Human Trafficking in Asia Requires U.S. Leadership

IRIN: Analysis: Southeast Asia’s Human Trafficking Conundrum

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Human Rights Justice Served as Japan and South Korea Address Violations Against “Comfort Women” appeared first on Law Street.

Puerto Rico received a rather unwelcome and tightly wrapped Christmas gift this year from the United States as it was reminded, in a brief filed by Solicitor General Donald B. Verrilli Jr., that it is not a sovereign state regardless of the fact that it has its own Constitution and is much more independent than a colony or territory.

The United States, taking a substantial interest in the outcome of the two cases reaching the Supreme Court in January 2016 regarding Puerto Rico’s political status and future, just planted its feet firmly in the argument that Puerto Rico does not self-govern and is actually a territory with a limited ability and authority to govern over its own interests, disputes, and affairs. The brief has created a media frenzy in Puerto Rico and has even involved the United Nations through an appeal highlighting human rights issues pertaining to self-determination.

Image Courtesy Of [Vxla via Flickr]

Historically speaking, Puerto Rico was ceded to the United States by Spain in 1898 following the conclusion of the Spanish-American War pursuant to the Treaty of Paris signed on December 10, 1898. Following several years of constructing Puerto Rico’s government, legislature, and judiciary, it was finally provided a bill of rights by Congress in 1917, and the people of Puerto Rico were granted U.S. citizenship. In 1950, Congress gave Puerto Rico the right to create its own Constitution to be adopted by its government so long as it “provided a republican form of government” and “include[d] a bill of rights.” Puerto Rico’s Constitution was approved by Congress in 1952 following several changes and revisions. Since then, Puerto Rico has enjoyed a level of autonomy and sovereignty similar to that of the states. Constitutionally speaking however, Congress has directly managed and overseen Puerto Rico’s affairs under the Territory Clause of Article IV of the Constitution.

The cases to be heard by the Supreme Court, while narrow in focus, will directly address the debate over Puerto Rico’s constitutional and political future–a bigger picture effect, if you will. One case addresses whether the United States and Puerto Rico are separate sovereign nations for the purposes of Double Jeopardy under the Fifth Amendment of the U.S. Constitution. Due to the fact that the Double Jeopardy Clause prohibits individuals from being tried for the same offense twice, Puerto Rico would have to have sovereignty and operate in an autonomous fashion to charge individuals for the same crimes they were convicted of in federal court. While the federal U.S. government and the states are considered separate sovereigns for the purposes of Double Jeopardy, in its brief, the U.S., who is not a party to the case, submitted support for the Respondents in Commonwealth of Puerto Rico v. Luis M. Sanchez Valle, concluding that Puerto Rico is not a separate sovereign entity and therefore, Puerto Rico’s individual and independent prosecution of the individuals convicted in federal court violates the Double Jeopardy Clause of the Fifth Amendment.

The second case to be heard by the Supreme Court centers around Puerto Rico’s catastrophic public debt of approximately $72 billion, which it wants to be able to control and restructure in the same way each individual state can, but is not able to under the Bankruptcy Code of U.S. law. The debt incorporates $20 billion for public utilities, used by the people of Puerto Rico including 3.5 million Americans, which Puerto Rico is unable to pay. It is urging the Supreme Court to grant Puerto Rico the right to enact laws allowing for restructuring. This desperate measure comes on the heels of a 2014 decision by the U.S. Court of Appeals for the First Circuit that struck down Puerto Rico’s Recovery Act, which allowed for Puerto Rico to fill the gaps of Chapter 9 of the Bankruptcy Code that had excluded any part of Puerto Rico’s government to take part in restructuring. As such, the Recovery Act was found to be in direct opposition to U.S. law and deemed unconstitutional. The financial crisis in Puerto Rico has brought the small island to the brink of an economic meltdown.

Puerto Rico’s Governor, Alejandro García Padilla, issued an impassioned and assertive statement following Verrilli’s brief filing, stating that the Solicitor General’s stance is “contrary to all Supreme Court jurisprudence” and that Verrilli’s position is “at odds with prior postures by his office with regards to the sovereignty of the Commonwealth.” As far as Padilla is concerned, using the term “colony” to describe Puerto Rico’s current political status, well, those were fighting words.

While the upcoming Supreme Court cases both carry the answer to a long-lasting debate about Puerto Rico’s constitutional and political future, it appears that both sides want their cake and to eat it too. Padilla does not support either statehood or independence for Puerto Rico and wants U.S. financial and legal support on his own terms. The U.S. has received many benefits from its relationship with Puerto Rico, yet it fails to address the major pitfalls threatening the territory and is unwilling to be flexible in order to address dire concerns that only it can to date. Nothing is for certain except this–come early 2016, the Supreme Court will tackle the issue as to whether Puerto Rico is separate and sovereign from the United States. Until then, all we can do is wait and hope that Puerto Rico works with the United States to come up with additional solutions to the major problems at hand.

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Puerto Rico: A Sovereign State or Still a U.S. Colony? appeared first on Law Street.

Hold on to your holsters, folks–there’s a new gun law in Texas. As of January 1, 2016, licensed owners of firearms will be able to carry them in plain view in most places. People will actually be able to flaunt and parade their firearms in belt and shoulder holsters in public…at restaurants, bars, parks, and stores–for every person to witness. It begs the question, is it necessary to expose one’s weapon in public spaces in light of laws allowing for weapons to be carried so long as they are concealed? And if it is necessary, why?

Earlier this year, on June 13, 2015, Governor Greg Abbott (R) signed the open carry bill into law. It passed in the Texas House by a margin of 102-43 votes and in the Senate by 20-11, divided by party lines with Democrats opposing the bill. Visible handguns have been banned in Texas since just after the Civil War, but that will change with the new law taking effect by the start of the New Year.

Despite its Wild West history of cowboys, bandits, John Wayne, and fairly lax gun laws, Texas is pretty late to flex the open carry facet of its Second Amendment arm. Surprisingly, it is the 45th state to enact such legislation, but only after a provision barring law enforcement from asking Texas residents whether they were licensed or had a proper license to carry firearms visibly was removed from the bill. Texas is by far the most populous state with the open carry laws, with nearly 850,000 concealed license holders, thereby making it a notable change regarding the nation’s gun laws as a whole.

Thankfully, the law allows for private businesses and establishments to ban open carry and many have been on the fence about the direction in which they will go. A number of family-based restaurants have geared up to ban visible weapons within their establishments. They fear that families with children and other customers would be “a little uncomfortable” coming to a restaurant that has firearms in plain view. Additionally, H-E-B, a grocery store chain with 316 stores in 150 Texas communities, has also decided to ban open carry within its store. Largely staying out of the debate, H-E-B noted that it sells alcoholic beverages and are acting in accordance to state regulations on that basis. The store, for years, has maintained the policy that long guns and unlicensed guns are prohibited on its property. But it allows concealed weapons and will continue to do so. Whole Foods and Randall’s have followed H-E-B’s suit in banning open carry within their stores.

Other organizations have taken a different stance. Kroger, another grocery chain, will allow open carry within its stores, as will the First Baptist Church of Arlington, near Dallas, Texas. Senior Pastor Dennis Wiles, who sees approximately 2,500 worshipers on Sundays, noted that he came to the decision after meeting with the church’s legal team, congregants, and police officers. Wiles further recognized that the church will re-assess the situation in a couple of months to see if there are any issues to be address, however, he is confident that there won’t be much of a noticeable difference. Executive Director Charley Wilkison of the Combined Law Enforcement Associations of Texas does not agree. Wilkison stated that, “[p]eople will drive without a license…[a]nd we can sure count on them to carry a weapon without training or license.”

But we still don’t know why. Why is this necessary? Intimidation? Self defense? Fashion? What good will come of this? Furthermore, if individuals are entitled to carry concealed weapons, why the additional need to flaunt those weapons, particularly at a time when citizens have been plagued by mass shootings, police brutality, racial discrimination, and religious intolerance? Placing firearm intimidation on the forefront of unstable societal, racial, and economic tensions does not sound like positive and commendable progression toward stability in such a gun weary and gun polarized nation.

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post The Wild Wild West: “Open Carry” Law in Texas Rings in the New Year appeared first on Law Street.

Teachers are the key to educating and developing the minds of future generations. They are an invaluable asset to break down barriers, open minds, distill fear and misunderstanding, and to bridge the gaps across cultural, ethnic, racial, and gender disparities. Teachers are sometimes the only individuals within a child’s life, apart from parents or grandparents, that take on a quasi-parental role and are provided with an opportunity to teach children much more than a couple of history lessons. They can greatly influence the lens through which children see the world in adulthood, which can both be excellent and scary all in the same breath. This is especially true during times of great uncertainty–during times of terrorism and fear, teachers’ personal beliefs may end up being at issue as well.

In light of the growing rate of Islamophobia within the United States, the general population has become more aware, more critical, and more concerned with safety, particularly in the context of religious interaction. Accordingly, parents have been more demanding of the schools in which their children spend most of their time and the individuals who assume the roles of caretakers in school settings. Due to the heightened awareness and concern, regardless if justified, a Muslim New Jersey teacher named Sireen Hashem was reportedly fired for showing her class a video about Malala Yousafazi, a young advocate for children’s education worldwide and the youngest person to ever win a Nobel Peace Prize for her advocacy. Read on for a look at the case, including the Muslim teacher who was fired, the circumstances of her employment at Hunterdon Central Regional High School, and her lawsuit under Title VII of the Civil Rights Act of 1964 for discrimination.

The Discrimination Battle

On December 14, 2015, Sireen Hashem filed a civil complaint against  Hunterdon County, the Board of Education, Hunterdon Central Regional High School, and four named individuals including the history department’s supervisor–Robert Zywicki, and Principal Suzanne Cooley. Here are the facts her complaint alleges:

Sireen Hashem, a Muslim American of Palestinian descent, had joined the Hunterdon Central Regional High School’s history department in September 2013. No stranger to criticism, Hashem has shared that she had experienced several complaints regarding her lesson plans, which she alleges were no different than and followed the same curriculum as her fellow history coworkers. Furthermore, the video about Malala that Hashem showed to her class, subsequent her own screening to make sure it fell in line with her lesson for the day, was suggested by her non-Arab, non-Muslim, and non-Palestinian coworker, Lindsay Wagner, who had shown the exact same video in her class on the same day. Yet Hashem alleges she was the only teacher to suffer any reprimand.

According to her lawyers, many of the complaints against Hashem do not revolve around the lessons taught to her own classroom, but rather pertain to her assistance and help provided to other teachers. Hashem had been asked by a coworker to translate an interview of a Palestinian subject. She had also been asked to take part in a discussion about “The Lemon Tree” and assist in translating a Skype conversation that the students were able to have with a Palestinian character featured in the book, with which she complied. Parents were allegedly unhappy about Hashem’s participation in the Skype conversation.

Further, Hashem was allegedly criticized for her essay question asking students to “compare the actions of John Brown at Harper’s Ferry to the actions of Osama bin Laden on September 11, 2001”–a document-based question used by a number of teachers across the United States. Despite her desire to help her coworkers to bridge gaps and build understanding across cultural, ethnic, and religious norms by engaging discussion around current events and educating her students to minimize misunderstanding, Hashem’s actions were allegedly interpreted to have political overtones and misrepresented agendas. As such, Hashem claims that she was subject to a heightened level of discrimination by the school relative to her coworkers and became the target for egregious public posts on a student Facebook wall stating that Hashem’s brother was a terrorist, that she was anti-Israel, and that she threatened students who had different opinions and views.

According to her complaint, eleven days after showing her class the Malala video, Hashem was called into her supervisor’s office who told her that because of her religion, national origin, and background, she was not allowed to teach current events in the same ways that her coworkers did. She says that was further told that she “she should not mention Islam or the Middle East in her class” and that she was not to “bring her culture, life experience or background into the classroom” by the principal.

Hashem received a written notice on April 21, 2015 that her contract with the school would not be renewed. Subsequently, she was informed of the reasons and provided an opportunity to speak in front of the Board of Education for review. She appeared in front of the board on June 15, 2015, with approximately 60 students present to show support for Hashem, however they were not allowed to enter the deliberations and only five could speak on her behalf. Deliberations were held behind closed doors. On June 17, 2015, Hashem received notice that her employment and contract would be terminated on June 30, 2015. Approximately one month later, two Federal Bureau of Investigation (FBI) agents appeared at Hashem’s home because of an alleged threat she had made to the Board during her meeting for review.

Hunterdon County District has rejected all accusations made by Hashem as “brazenly false” and “frivolous.” It went on to explain that Hashem’s contract was simply not renewed and that the reasons for the non-renewal were explained to her, asserting that those reasons had nothing to do with religion or national origin as Hashem claims. The district expressed that “the board and the administration respect and embrace the diversity of the district’s employee and student population, and value the relationships it enjoys amongst persons of all faiths.” No further details have been provided by the district or any of the other defendants named as of yet.

The Complaint and Its Legalities

The complaint filed on behalf of Hashem is the first legal step to starting the lawsuit against Hunterdon Central Regional High School and the others named in the suit. The nature of action in the complaint filed is for employment discrimination, disparate treatment, and disparate impact under Title VII of the Civil Rights Act of 1964 as well as the New Jersey Law Against Discrimination.

Under Title VII of the Civil Rights Act of 1964, an employer is prohibited from failing or refusing “to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Accordingly, the employer cannot engage in practices that treat individuals differently based on protected classes that include one’s race, color, religion, sex, or national origin. Such practices are classified as disparate treatment, are against the law, and can serve as the basis of a Title VII lawsuit. In order to prove disparate treatment, the employee must show that he or she was treated differently by his or her employer on the basis of the protected characteristics mentioned above. However, an employer can explain, but is not required to prove, that there is a legitimate, non-discriminatory reason for the treatment to which the employee must show that the employer’s reasoning is a pretext for discrimination, or a false reason that hides the true intentions of the employer.

Additionally, discriminatory consequences of employment practices are also considered in a Title VII legal analysis under disparate treatment, which allows the court to look beyond the isolated treatment of the individual and dive into employment practices that appear to be facially neutral (not discriminatory as a policy or on their face), but in practice subject a certain protected class to discrimination. Essentially, an employee must prove that a neutral policy or practice of an employer has a disproportionate effect on a protected group, which can sometimes be difficult as the courts do not have a specific threshold test or analysis but rather assess each situation on a case-by-case basis. However, if an employee is able to show adverse and discriminatory affects on a protected class, then the employer has to prove that its policies and conduct were justified as a business necessity.

The New Jersey Law Against Discrimination provides for a greater amount of protected characteristics including “race, creed, color, national origin, ancestry, age, marital status, familial status, sex or sexual orientation, atypical cellular or blood trait, generic information, or service in the armed forces.” Further, employers are not allowed to discriminate on the basis of handicap, unless such a handicap would prohibit the employee from carrying out the essential functions of the job. Under New Jersey law, an individual is likely to have a successful claim if they are able to show that 1) they are in a protected class, 2) they were working up to the expectations of their employer, 3) they suffered adverse job action such as suspension or termination, and 4) they were replaced by an individual not in the protected class of the employee or that the adverse employment action was directly related to the employee’s protected status.

Hashem’s complaint outlined additional causes for her action including conspiracy to discriminate, deprivation of rights under the First and Fourteenth Amendments, unlawful discharge with malice, and defamation per se.

What’s Next?

While the lawsuit is still in its beginning stages, supporters of Hashem suggest that in disallowing her to teach students the same curriculum and in the same manner as her non-Arab, non-Muslim, and non-Palestinian coworkers, she was discriminated against on the basis of her race, religion, and national origin pursuant to federal law. Further, her attorneys allege that she has been treated less favorably than her colleagues, particularly pertaining to the discriminatory nature of what she was and was not allowed to teach her students.

The complaint filed on behalf of Hashem and her recollection of Hunterdon’s restrictions suggest that all of the prohibited lessons centered around current events, books, and influential people had a connection to Islam. Hashem claims that she taught in compliance and accordance to the school’s curriculum and the criticism she endured was often because of her assistance to other teachers for her specific skill set. Hashem’s supporters highlight that she was trying to help other teachers and provide insight and understanding that other teachers did not have, which is precisely why they came to her and asked for her help; that she was trying to bridge educational and cultural gaps while hoping for a more compassionate and understanding future generation.

Ironically, in trying to join the common cause to advocate for children’s education and showing Malala’s video, Sireen Hashem was allegedly fired for her educational implementation on the basis of race, national origin, and religion. We will have to wait and see how the lawsuit unravels and what is in store for Sireen Hashem pursuant to Title VII and the New Jersey Law Against Discrimination.

Resources

Primary

Hashem v. Hunterdon Central Regional High School

U.S. Equal Opportunity Employment Commission: Title VII of the Civil Rights Act of 1964

Employment Law New Jersey: New Jersey Law Against Discrimination

Additional

The Huffington Post: Mother Upset Over School Assignment About Islam

The Malala Fund: Malala’s Story

The Daily Beast: Muslim Teacher Fired After Showing Malala Video

 Sandy Tolan: The Lemon Tree

 RT: Muslim Teacher Sues NJ School District for Pattern of Discrimination Over Her Religion

 The Huffington Post: New Jersey Teacher Says She Was Fired After Showing a Video of Malala

The New York Times: New Jersey School District Rejects Claim of Anti-Muslim Firing

FindLaw: Disparate Impact Discrimination

 McDermott, Will, & Emery: New EEOC Rule Significantly Increases Employer Burdens in ADEA Disparate Impact Cases

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Sireen Hashem: Was her Firing Discriminatory? appeared first on Law Street.

On December 14, 2015, Serena Williams was named the Sports Illustrated “Sportsperson of the Year.” But, despite the fact that Williams went 53-3 in the 2015 season and earned five titles including Wimbledon, the Australian Open, and the French Open, and despite the well-earned SI title for her dominant performance in tennis, Williams’ accomplishments haven’t been without severe criticism and personal attack.

Quite noteworthy is the fact that a woman has not achieved this title by herself in over 30 years–since 1983. Yet, to the dismissal of such an empowering feminine feat and celebratory cause, the public lost their bananas that American Pharaoh, the Triple Crown winning horse, did not win “Sportsperson of the Year.”

Huh? Excuse me for not understanding, but why would a horse trump a person for the Sportsperson award? How does that make any sense? The outrage over Williams’ triumph is actually quite ridiculous–that in and of itself is the outrage–that people cannot support a strong, confident, independent woman who is setting an impeccable example of dreaming, hard work, and success for young women and athletes around the world.

Further adding insult to injury, not only did the haters loudly and colorfully express their disdain that Williams won SI’s “Sportsperson” award, claiming that American Pharaoh was at a disadvantage because he “couldn’t display sportsmanship,” something that can only be done by a person, but critics further lashed out at the magazine’s cover rolling out the royal treatment to highlight the award’s recipient. Critics actually defended and made an argument for American Pharaoh under an affirmative action basis–that the criteria and policy used by Sports Illustrated placed American Pharaoh at a disadvantaged position to show sportsmanship and be the “Sportsperson of the Year.” What? Ridiculous. As the queen of tennis sat on her gold throne, dazzling in black lace, looking as powerful and dominant as ever, the persistent and consistent racist, dehumanizing, and body-shaming critics trolled in. Williams, a developing and trending fashion icon who has her own HSN line and has graced the covers of various magazines, including Vogue (twice), and is no stranger to criticism, took the cynics on in stride like the lady that she is, stating:

I’ve had people look down on me. I’ve had people put me down because I didn’t look like them, I look stronger. I’ve had people look past me because of the color of my skin. I’ve had people overlook me because I was a woman. I had critics say I will never win another Grand Slam when I was only at number seven and now here I stand today with 21 Grand Slam titles and I’m still going.

Serena Williams used a platform built out of negativity, stereotypes, racism, misogyny, and hate to spread a positive and inspiring message to women and people of color–chase your dreams and do not for a minute focus on what other people say about you because they will talk regardless. “You have to believe in yourself…sometimes you have to be your own cheerleader,” Williams stated in her speech posted above.

Her point is proven in the fact that she has consistently dealt with body-shaming critics, some saying that she is too large, too muscular, too masculine, and overly built, which drastically separated her in appearance from her opponents. It did separate her from her opponents most notably in her performance and domination of the sport, and her own opponents began to highlight her different appearance in negative ways. In 2012, Caroline Wozniacki stuffed her chest and behind area with towels to imitate Serena Williams against Maria Sharapova.

Most recently, it has been said that Williams’ SI cover makes her thighs look too skinny or that she is buying into the idea that sex sells and spreading the ideology, against feminism and women, that sexiness in marketing is required to get attention and recognition as a female athlete. However, the double standard holds true–men gracing the cover of SI for the “Sportsperson of the Year” award have never had to worry whether their cover would be seen as too sexy or too suggestive. How exactly is a woman supposed to present herself when she is told she is too large and too masculine one minute and too sexy the next? Is there a happy medium?

Regardless of the haters, Serena Williams deserves to be the Sports Illustrated “Sportsperson of the Year.” Her domination in tennis highlights her as one of the best female tennis players in history. She is a strong and independent woman who is setting an incredible example for young women and female athletes. Let us silence the neigh-sayers because this queen absolutely deserves her throne.

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Serena Williams Served Up Backlash and Criticism for “Sportsperson of the Year” Win appeared first on Law Street.

Drunk driving has left parents childless, spouses widowed, and siblings as only children. In 2013 alone, 10,076 people were killed in drunk driving crashes. It has claimed the lives of thousands of people over the years and sparked lobbyist action, which has forced stricter regulation of drunk driving on both the federal and state levels. Most recently, the Supreme Court has agreed to hear a group of three cases, a sequel per se to its 2013 drunk driving decision, in an effort to review warrantless drunk driving tests as a violation of Fourth Amendment rights and the criminalization of a refusal to take a drunk driving test. Read on to learn more about the development of drunk driving as a crime and what the new cases hold for the future.

History of Regulating Alcohol Consumption

Despite its widely accepted consumption, alcohol is still a drug and one that not only endangers the drinker, but in some cases the lives of others. The federal government and state governments have long been involved with the regulation of alcohol. Mothers Against Drunk Drivers, or MADD, incorporated in September 1980, has been a forefront lobbyist in terms of pressuring the government for stricter and more consequential laws for drunk drivers. Following MADD’s influence, the federal government signed into law the Federal Uniform Drinking Age Act of 1984, which established a uniform drinking age of 21 in the United States and governed state implementation of the Act through apportionment of funding for highway construction, repair, and maintenance. While states have flexibility and control over alcohol policy development and enforcement, the federal government maintains regulation over whether alcohol is sold in the state, whether it can be imported into the state, its distribution, and its possession.

Furthermore, states control the laws pertaining to drunk drivers and the potential consequences and punishment suffered by those charged with drinking and driving. In a breaking development on Friday, December 11, the Supreme Court agreed to review three cases all dealing with the same ultimate issue–“whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test.” The upcoming Supreme Court decision will have a nationwide effect regarding drunk driving roadside manner as 13 states make it a crime to refuse to take a drunk driving test. The three cases chosen for review were picked out of 13 submitted because they involved 3 different scenarios regarding drunk testing and hail from both North Dakota and Minnesota.

The Important Legalities of Drunk Driving

While the evolution of drunk driving policy and law-making has a rich history on both a state and federal level, we will focus on post-2000 development. One of the most noteworthy nationwide implementations was finalized in 2004 with the adoption, by all 50 states, of the .08 blood alcohol concentration (BAC) standard and implementation of the per se laws. Such laws establish that if an individual is tested and their BAC is .08 or over, no additional evidence of intoxication is required–that individual is considered intoxicated by law.

Image courtesy of [Ashleigh Jackson/KOMUnews via Flickr]

However, in 2013, the Supreme Court reviewed Missouri v. McNeely which found that in a routine drunk driving investigation where no additional factors existed which created a special circumstance, exception, or emergency situation, save for the natural dissipation of alcohol within one’s body, a non-consensual and warrantless forced blood test violated the Fourth Amendment right to be free from unreasonable searches of one’s person. The facts of McNeely were straightforward–Tyler McNeely was stopped shortly after 2AM, had admitted to having a few beers, failed a field sobriety test, smelled of alcohol, declined to take a breathalyzer test, and was placed under arrest. The officer did not secure a search warrant prior to taking McNeely to the local hospital where he asked for signed consent for a blood test, which McNeely denied. A lab technician, under the direction of the officer, was told to collect a blood sample from McNeely despite not obtaining consent to do so. McNeely’s BAC was 0.154, almost double the legal limit, and he was subsequently charged with driving while intoxicated.

The Court in McNeely recognized that Fourth Amendment precedent allows for warrantless searches of a person only if the search falls within a recognized exception. A number of exceptions give rise to an exigent circumstance including an emergent need to provide assistance to someone in a home, chasing and pursuing a fleeing suspect, to enter a burning building or investigate a fire, or to prevent the destruction of evidence, among other factors. While the time restraint on testing a blood alcohol level could present an exigent circumstance not only because of the natural dissipation of alcohol, but also for the time required to obtain a warrant, the Court had to analyze the full picture regarding McNeely’s specific situation. They ultimately decided that the State’s argument–that the natural dissipation of alcohol from a driver’s body is considered an exigent circumstance in every case–was unsupported and unfounded on a Fourth Amendment basis. Essentially, the fact that the test may not be accurate hours later after the alcohol wore off was not a good enough reason to perform a warrantless test.

The Statistics of Drunk Driving 

Despite the legal disputes around drunk driving policies, statistics have come to show a significant decline in the number of drunk driving deaths from 1982 to 2014. The rate of drunk driving is highest among individuals between the ages of 21-25 with drunk driving costs reaching an upward of $199 billion a year. Furthermore, over 1.2 million people were arrested in 2011 for driving drunk and approximately one-third of those arrested or convicted of drunk driving were repeat offenders. Needless to say, there is work to be done to further drop those statistical reports.

The Supreme Court’s Upcoming Drunk Driving Review

Despite the ruling in Missouri v. McNeely, the Supreme Court is tackling the warrantless blood or breathalyzer test again in addition to assessing the constitutionality of criminalizing the refusal of a driver to submit or consent to a test. Of the three cases taken up for review, two come from North Dakota where it is a crime to refuse a blood, breath, or urine test, one punishable to the same extent as a conviction for drunk driving.  The lead appeal comes from Danny Birchfield, who in 2013, drove his car off the road, failed a breathalyzer test, and subsequently refused to take a blood test. Birchfield pled guilty to a misdemeanor charge, but reserved his right to appeal.

The third case operates under Minnesota law, which makes it a crime to refuse an officer’s request to take a blood test, if a valid arrest has been made for drunk driving. William Bernard Jr. was arrested and charged with two felony counts of refusing to submit to a sobriety field test, blood, or breath test. Witnesses reported Mr. Bernard after his truck was struck trying to pull a boat out of the water. Police requested he submit to a test because he smelled strongly of alcohol and was driving the truck–he denied the test and was arrested under Minnesota’s “implied consent law,” agreed to when a driver obtains his or her drivers license and criminalizes a refusal to take a test. Ultimately, Bernard was convicted–a conviction that is in conflict with Missouri v. McNeely because it allowed for warrantless drunk testing and an arrest without the presence of additional factors or emergent circumstances.

Image Courtesy Of [grendelkhan via Flickr]

Conclusion

The Supreme Court review of the upcoming cases is expected to clarify the issues that McNeely did not, such a bright line rule pertaining to warrantless demands for drunk testing and exigent circumstances, as well as addressing the criminalization of refusal through implied consent laws. Although the Supreme Court may be wary of completely controlling process and punishment of drunk driving, a long-term power of the states, it will have to develop a more clear requirement since the number of cases challenging drunk driving test procedures under Fourth Amendment claims continues to grow, particularly in the 13 states with implied consent laws. Many state rulings allowing for warrantless testing are in direct conflict with McNeely–it is therefore imperative, for continuity and consistency, that the Court create a bright line rule for drunk driving test procedures. Whether it will or not in the upcoming case review is to be determined.

Resources

Primary

98th Congress: Federal Uniform Drinking Age Act of 1984

FindLaw: Per Se DUI Laws

Justia: Missouri v. McNeely

Additional

SCOTUSblog: Court to Rule on Drunk-Driving Tests

National Institute on Alcohol Abuse and Alcoholism: Alcohol Policy

Foundation for Advancing Alcohol Responsibility: .08 BAC Legal Limit

Mothers Against Drunk Drivers

 Mothers Against Drunk Drivers: Drunk Driving Deaths 1982-2014

Mothers Against Drunk Drivers: Drunk Driving Statistics

 Bring Me the News: No Warrant Needed: Ruling OKs Arrest if You Refuse Drunk Driving Test

The Chicago Tribune: Supreme Court to Review Blood-Test Requirement for DWI Cases

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Drunk Driving on Trial at the Supreme Court appeared first on Law Street.

Charming to some. Smug to others. Abrasive to most. But even with such mixed feelings and emotional reactions invoked at the mention of his name, Donald Trump is leading the Republican polls. Most recently, Trump called for a temporary ban on Muslims entering the United States–which he further explained did not apply to U.S. citizens who were Muslim and would only last until the incompetent politicians on the hill can get themselves together. What that means is unclear, but it is evident from his interview with CNN’s Don Lemon that Trump, along with much of America, is not pleased with the lack of progress, law-making, and reform taking place in Washington, D.C.

Yes Mr. Trump, give yourself a pat on the back for creating a dialogue on an issue that is quite important and one that most Americans are less than educated about. However, you get points off for spreading extra bigotry. The American public needs to be wary of what Trump’s proposal actually means and the kind of law-making it reflects before we nod in agreement like the political pawns we are expected to be.

Apart from the blatant unconstitutional basis for this proposal, such a ban as the one proposed by Trump is problematic for a number of reasons. First and foremost, to ban a group of people from entering the United States on the basis of religion would be next to impossible in practice. There are approximately 1.6 billion Muslims in the world, equaling about 23 percent of the world’s population. These are 1.6 billion people coming from the Asian-Pacific region, the Middle East, Europe, Northern Africa as well as other African nations, just to name a few. These are people that do not share many physical characteristics and are not identifiable by a singular trait as they encompass anybody and everybody.

So how exactly would one prove he or she is not Muslim? Would people carry around affidavits sworn by their pastors? Would wearing a cross save you from categorical discrimination on the basis of religion? And what about the atheists of the world who practice no religion at all? How would they convince those around them that they are not Muslim? Additionally, do we really think ISIS members or other radical extremists would volunteer information about their practices to U.S. Customs Officers? These questions might sound absurd, but they are real and only highlight the ridiculousness of Trump’s proposal.

Secondly, there are a large number of Muslim businessmen and women, doctors, scientists, and academics that frequently travel to the United States and greatly contribute to the technological, educational, medical, economic, and scientific growth and advancement of the U.S.–areas of practice and study that have been decreasing in domestic educational interest for years. To ban them from entry into a country that they have been actively and positively contributing to would not only serve to offend them and turn them off from future engagements and endeavors, but it would be just plain stupid. Punishing Muslim innovators and educators due to the actions of a few–people whose behaviors they condemn and find absolutely reprehensible–is a waste of invaluable resources on an unfounded basis.

Thirdly, Trump’s ban is reminiscent of much darker times in history–i.e. when Jews were forced to wear badges identifying their faith under Adolf Hitler’s leadership and when Japanese-Americans were placed into internment camps following the attack on Pearl Harbor. One would assume that many lessons had been learned following the colossal tragedies that resulted out of such blatant and unfounded discrimination, but yet, with Trump’s rhetoric, it appears we have not. This Nazi-esque type of discrimination and exclusion based on religious beliefs has been condemned by parties on all sides and was even dubbed “un-American” by former Vice President Dick Cheney.

Finally, Trump seeks to confuse the issue at hand and puts the U.S. into an action-based response that is anticipated, wanted, and planned by extremist groups such as ISIS. The point of terrorism is to create terror, to stir up emotions of fear and irrational reactions used to isolate, alienate, and leave people vulnerable, open to great influence–exactly what the likes of ISIS would welcome, large groups of Muslim people feeling abandoned, isolated, and unwelcomed by the very societies they have set out to enrich, contribute positively to, and raise families in as model citizens. ISIS wants to build a “complete society” with men and women alike and they will recruit. Those vulnerable and rejected by Western societies are likely targets.

Trump’s rhetoric is dangerous two-fold. Not only does it seek to alienate and isolate Muslims from Western societies, leaving the doors open for ISIS recruitment, but it also works to confuse Islam with terrorism, dangerously perpetuating the idea that the two are interchangeable when they are absolutely not. Trump is promoting a display of Islamophobia that would be considered disgusting for anyone, much less a possible Republican Presidential candidate.

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post The Dangerous Rhetoric of Donald Trump appeared first on Law Street.

This holiday season is bringing much more than gifts and cheer for children as the Every Student Succeeds Act (ESSA), a graduated, more sophisticated, and polished version of No Child Left Behind (NCLB), was passed by the House of Representatives. The much-needed update was passed by a 359-64 majority in the House and will be voted on by the Senate in the coming week. The overwhelming bipartisan support for the bill reinforces the likelihood that it will ultimately be signed into law by President Barack Obama.

The overhaul and revision of NCLB, which resulted in the creation of ESSA, comes as a welcomed and advocated-for change to remove the federal grip over the requirements and implementation of public education and move it toward a state-based ideology that narrows the focus and tailors implementation to resources and needs within a specified state. Additionally, ESSA seeks to evolve past the sole focus on standardized testing and opens up consideration for other factors such as student/teacher engagements, success in advanced coursework, and career readiness. The main goal is a holistic approach to standardize primary education through a variety of measurable and functional factors through a more tailored, state-focused lens.  Read on to learn more about the evolution of measurable standards within primary education, what ESSA holds for future generations, and the potential impact of the pending legislation.

The Evolution of Standardized Primary Education

Education is a cornerstone in a progressive, self-sustaining society. It provides for the social and economic advancement, as well as the stability of people that allows for growth, development, creativity, and forward movement and innovation. Education is the bedrock of a society and its importance has been highlighted throughout the history of the United States in a variety of ways as evidenced by its evolution in law and implementation.

In 1965, President Lyndon B. Johnson sought to mend the “achievement gap” in the United States by implementing the Elementary and Secondary Education Act (ESEA). ESEA allocated a substantial amount of federal funding into bridging the gap in the educational disparity based on race and poverty–a disparity highlighting that minorities, low-income students, immigrant students, and those from rural/neglected areas were not receiving the same level of quality education and therefore were not achieving at the same levels or percentage rates as students outside of those statistical and categorical confines. While ESEA shifted focus onto a federally controlled education policy and allowed the government involvement in implementation through funding, it also provided “Title I” designation to schools with over 40 percent of students designated low-income through federal standards. Such a designation provided schools, mainly elementary schools, with federal-based funding to make education more accessible to low-income families and to increase resources available to schools. The Act gave young students a pathway out of institutionalized poverty through encouraged and standardized academic advancement, which was monitored through testing benchmarks and requirements.

ESEA underwent several reauthorizations, none more prominent and controversial than the No Child Left Behind Act of 2001 (NCLB), which was signed into law by President George W. Bush on January 8, 2002. NCLB was authored and instituted out of concern that the United States was losing academic advantage on an international scale and applied testing standards and progress tracking to all students, not just the low-income students identified by ESEA. While NCLB sought to bring academic progress and responsibility as applied to all students, it carved out specific standards and a focus on students with special needs, those learning English as a second language, and those below the poverty line, as well as minorities, as these groups of children in primary schools tended to test lower than their classmates. The law provided required benchmarks for academic achievement, testing students from the third grade through high school. It also marked the 2013-2014 school year as the goal year to have all schools testing at a “proficient level,” marked by results and scores defined by each individual state. It is important to note that by the end of the 2015 school year, no school had gotten all 100 percent of its students above the required proficient level. Additionally, teachers were required to have certain qualifications and schools were required to reach specific testing goals and provide yearly progress reports that would subject them to serious sanctions if the goals set were not met.

While NCLB was a positive step and evolution from the outdated versions of ESEA, it was laced with great controversy and consequently, great criticism. One of the major criticisms of NCLB was the heavy focus on standardized testing in math and reading, which ultimately resulted in less investment on subjects such as social studies that were not empirically tested and measured, as well as an increase in cheating in order to meet required results. The desire to increase educational standards ironically did the opposite in order to meet them. The focus on test scores also created an “educational marketplace” out of federal funding, forcing schools to compete in a survival-of-the-fittest atmosphere, rather than a collegiate and collective one. Another criticism of the law was that remedies for the low performing students–free tutoring and the opportunity to transfer to a better performing school–were completely underutilized by the students and facilities they were available to. When given the free choice and the transportation to get a better education, families opted to keep their children in what was familiar, even if what was familiar was not performing at an acceptable level. Finally, NCLB was criticized as being underfunded. Although annual funding for Title I was supposed to rise to $25 billion, it had only reached $14.5 billion by 2015 highlighting the fact that federal funding never reached the lofty goals it had set for the law as well.

In 2011, in recognizing the failure of NCLB, President Obama instituted waivers that allowed states struggling to meet the standards outlined by the law to set their own standards in an effort to adequately prepare students for higher education and the workforce. The need for reform in education policy was crystal clear. It was up to Congress to take action.

Every Student Succeeds Act: What is in Store

Last week, the House of Representatives got the ball rolling in Congress on education policy and the support for the Every Student Succeeds Act (ESSA) was overwhelming. While the Senate will be voting on the bill within the week, the support strongly suggests that it will be signed into law following the vote.

ESSA aims to address the concerns, criticisms, failures, and restrictions highlighted by NCLB by primarily honing in on a state-centered emphasis, which would allow for more flexibility in the implementation and assessment of academic achievement. Rather than just analyzing test scores and graduation rates, ESSA will take a more holistic approach to assess educational success by looking at additional factors such as “student and teacher engagements, success in advanced coursework, and school climate and safety,” as well as performance on college prep and Advanced Placement (AP) courses, career readiness, and specialized certificates.

However, the shift back to a more state-based system of control and implementation will not be without federal regulation. States will still have to test students and report findings in order to be held accountable for the way the programs are being instituted, absorbed, and utilized, still tracking positive academic achievement benchmarks. ESSA still provides safeguards by integrating the availability of waivers for schools performing below desired levels and grant programs that will offer schools more resources to meet goals if they qualify. The bill initiates additional programs that focus on over-testing research, the importance of effective and quality early childhood education practices, and the equal distribution of funding within districts.

While ESSA is certainly a more polished and advanced version of its predecessor, it is subject to its own criticisms. The main critique this early in its life is the fact that it is silent in terms of upgrading, updating, and elevating the status quo for the profession of teaching. Although authors of the bill did not utilize this opportunity to address the modernization of teaching, qualification requirements, and experience of the individuals working within its confines–teachers, the bill successfully sets out to update a largely outdated system that has failed the children and teachers in the United States.

Conclusion: A Welcomed Change That’s Long Overdue

No Child Left Behind had officially expired in 2007. It is now December 2015. Surprisingly, despite its eight-year expiration, NCLB had maintained its grip on implementation control as no alternative methods and bills had been proposed and implemented with success in Congress. In an effort to circumvent the failing aspects of NCLB and loosen the regulatory grip over state implementation, most states were working under waivers granted by President Obama, providing them with the necessary flexibility to implement more successful educational policy options for their specific circumstances. States have had temporary and remote control over educational policy following NCLB’s expiration.

And while critics are emphatic that ESSA’s authors dropped the ball in addressing a refocused lens on increasing and updating teaching standards as well as standardized education, the bill did take big steps in initiating additional programs to reform education policy, elevated expectations and implementation of a revitalized policy, and works to ensure fair and equally distributed system of federal funding. Additionally, the bill provides the opportunity for volunteer partnerships, but prohibits any state to be influenced, provided incentives, or coerced into accepting and adopting Common Core principles. While criticisms will exist on both political sides, particularly within the idea that the federal government is simply punting the education problem to the states to fix, the overwhelming bipartisan support for the Every Student Succeeds Act shows the importance of quality education in this country for all students alike.

The steps taken to eliminate NCLB and reinvent the bill in a new form is a commendable and welcomed progression in education policy.

Resources

Primary

House of Representatives: Every Student Succeeds Act

107th Congress: No Child Left Behind

Additional

 U.S. News: Leaving Behind No Child Left Behind

LAWS: Elementary and Secondary Education Act

 Education Week: No Child Left Behind: An Overview

National Public Radio (NPR): Former ‘No Child Left Behind’ Advocate Turns Critic

 CBS DFW: A Major Overhaul of No Child Left Behind is in the Works

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Graduating From “No Child Left Behind” appeared first on Law Street.

When we take a moment to think about women in combat, oftentimes a picture of the 1997 Demi Moore film, “G.I. Jane” comes to mind with a scene that looks a little something like this:

However, women have not been allowed to work in all combat units despite G.I. Jane’s portrayal implying it was possible…that is, until December 3, 2015.

“There will be no exceptions,” stated Defense Secretary Ashton B. Carter in his announcement, during which he informed United States officials and citizens that women would be able to hold positions and jobs within all combat units of the military. Secretary Carter went on to address that women would have these opportunities so long as “they qualify and meet the standards,” marking a significant and positively well-earned turn in the tide for the rights of women within the military.

The breaking and encouraging news comes on the heels of the first two women, Kristen Griest and Shaye Haver, who graduated the grueling Ranger training on August 21, 2015 and were not allowed to join a combat unit following their training and the acquisition of their new titles like their male counterparts. Now, for the likes of women like Ms. Griest and Ms. Haver, they will finally have the well-deserved opportunity to put their training into practical use.

The secretary excitingly highlighted the ability of the military to utilize a level of skill, insight, and point of view that had yet to infiltrate combat units thus far–the sensible woman’s touch, if you will. Secretary Carter was supported by all of the top leaders in the Army, Navy, and Air Force in his decision, but met negotiating terms by the Marines in which he refused to indulge special requests or exceptions, stating that his decision would apply to all branches of the military equally.

General Joseph Dunford, a commandant in the Marines, provided the Secretary with a detailed recommendation and data pertaining to mixed-gender units versus all-male units, showing that women were more likely to get injured in the training process and did not perform better than the men. However, Secretary Carter was not swayed, due to his own “evidence-based” research, and found that mitigating factors during the implementation process would account for any of the issues outlined by the Marines. General Dunford was not present for the announcement, but the secretary assured that the general would take full part in the implementation process.

Image courtesy Of [Utah National Guard via Flickr]

So how exactly will this change be implemented?

That seems to be the question that everyone is pressing Secretary Carter to answer. The secretary has not provided a concrete answer. However, he has provided a timeline: January 1, 2016 is the due date for plans to be submitted on how to open up the combat jobs to women and April 1, 2016 is the date by which those plans have to start being integrated into military procedure. We will have to wait for the start of the New Year to see how plans and integration unfold.

Now up for debate–will women be subject to the draft as a consequence of participating in combat units and what is the constitutionality of the decision if they are not?  Women, ages 18-26, are the only group entirely exempt from the military draft under the Military Selective Service Act–even non-U.S. citizens, such as male refugees between the ages of 18-26, are subject to the draft in a time of war when troops are short-handed. The Military Service Act’s constitutionality was challenged under the Fifth Amendment in Rostker v. Goldberg. The Supreme Court upheld its constitutionality finding that Congress acted within its constitutional authority to raise and regulate armies and navies when it proposed and authorized the registration of men and not women. Justice William Rehnquist, in authoring the opinion, noted that Congress’ decision to exempt women from registering for the draft stood as women were not in combat at the time. Justice Thurgood Marshall dissented in Rostker, stating that the exemption “categorically excludes women from a fundamental civic obligation.” Since the combat restrictions no longer exist, the issue may be revisited in legal dispute as a violation of the Equal Protection Clause within the Fifth Amendment.

So we wait. We wait for the plans and implementation to unfold and to see if a constitutional challenge is brought against the Military Service Act in light of Secretary Carter’s decision to open combat unit jobs to women.

But while we wait, we can share in Rep. Martha McSally’s (R-Ariz.) sentiments on the underlying change in combat units:

It’s about damn time…Women have been fighting and dying for our country since its earliest wars. They have shown they can compete with the best of the best, and succeed. We are a country that looks at people as individuals, not groups. We select the best man for the job, even if it’s a woman.”

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Women in Combat: Making Moves Toward Gender Equality appeared first on Law Street.

Women have, for centuries, been fighting a battle to obtain equal rights and autonomy within the patriarchal society in which we live. From voting rights, equal pay, gender equality, and financial independence to stigmatized domestic violence ideologies and highly controversial contraceptive and reproductive rights, women continue to strive toward a gender equilibrium.

While their history is bountiful, reproductive rights–specifically those focused on abortion–have morphed from a religious, hot-button voting issue and politically polarizing topic of interest into a women’s rights and equality war zone, which has mixed reviews even from within. For years, various states have been testing the limitations of abortion laws by trying to implement restrictions to access, mandatory and burdensome requirements, and regulations upon women and healthcare providers. Most have not passed muster, however, in early November 2015, the Supreme Court agreed to hear a major and consequential abortion rights case for the first time since 2007. Read on to learn more about the history of abortion rights, the important facts of Whole Women’s Health v. Cole, and what it could mean for future generations of women.

A “Brief” History of Abortion Rights

Laws pertaining to contraception came to the Supreme Court in 1965 with Griswold v. Connecticut, where the court found that a state statute forbidding the use of contraceptives, punishable by fine and imprisonment, was unconstitutional. Justice William O. Douglas crafted the “penumbra” argument, stating that, “…the First Amendment has a penumbra where privacy is protected from government intrusion,” finding that “the sacred precincts of marital bedrooms” is not a place that is subject to government control and infringement. Marital privacy was to remain private. The curtain would remained closed on the intimacies of married life.

Image Courtesy Of [Kate Ausburn via Flickr]

In 1973, the Supreme Court decided the landmark abortion case, Roe v. Wade. Justice Harry Blackmun, a conservative father to three daughters who served as resident counsel in the Mayo Clinic (1950-1959), authored the weighty opinion. The importance of the right to privacy and a woman’s autonomy over her pregnancy led him and the Court to find the restrictive Texas statute unconstitutional and abortion a private legal matter encompassing a woman’s right to choose. The Court quoted the Texas District Court below, agreeing that the “fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment.” However, the opinion explained vested interests in abortion proceedings and outlined different levels of state interests in regulating abortion procedures in the second and third trimester.

While 1992 brought United States citizens “Aladdin,” Windows 3.1, and the birth of Miley Cyrus, it also bestowed upon us the sequel to Roe v. Wade in the form of Planned Parenthood of Southeastern Pennsylvania v. Casey—a complex multi-part decision that ultimately addressed what regulations were and were not acceptable by the states regarding abortion procedures under a undue burden/substantial obstacle analysis. The Court reaffirmed its Roe holding by adhering to the three major principles in Roe: 

1. That a woman has the right to abort prior to viability “without undue interference from the State:”
2. That the State has the right to restrict abortions after fetal viability so long as its laws contain exceptions for any pregnancy that endangers the life or health of a woman; and
3. That the State has a “legitimate interest” in the pregnancy to protect the life of the woman and fetus.

Planned Parenthood v. Casey challenged five provisions of the Pennsylvania Abortion Control Act of 1982. One required women, prior to getting an abortion, to obtain informed consent. Informed consent is a process in which a woman is provided with the risks of abortion, fetal development, gestational age of the fetus, whether the fetus can feel pain during the procedure, and that personhood begins at conception, etc. The act also require women to wait a mandatory 24 hours following signed consent to proceed with the procedure, obtain parental consent for minors with the allowance of a judicial bypass, and obtain signed spousal consent. Additionally, the act defined a “medical emergency” within the context of abortion procedures and set out specific reporting requirements by the facilities performing abortion services. The Court, in a plurality decision, upheld the central holding in Roe, but did however, overturn Roe’s trimester analysis framework and only found one provision–requiring spousal consent–burdensome and an unconstitutional regulation on a woman’s right to choose. The rest of the provisions were upheld.

Legal discourse pertaining to abortion did not end there.  In 2000, Stenberg v. Carhart surfaced to challenge a Nebraska statute prohibiting and criminalizing “partial birth abortions,” also known as “dilation and extraction” in the medical community. The court’s scientifically detailed opinion ultimately held that the Nebraska statute was unconstitutional and therefore could not be enforced as it did not carve out an exception for the “preservation of the health of the mother.” Additionally, the statute, with its ambiguous wording and terminology, unduly burdened the mother’s ability to choose an abortion, noting that in certain situations and in the presence of specific circumstances, partial birth abortions were “safer” than alternative procedures and methods.

In 2003, Congress and President George W. Bush signed into law the Federal Partial Birth Abortion Ban Act which expressively banned the “dilation and extraction” abortion method cited in Stenberg. Advocates that challenged the federal statute in lower courts had the statute struck down, but the challenge to the federal statute did not reach the Supreme Court until 2007 in Gonzales v. Carhart.

The court in Gonzales v. Carhart addressed the issue of whether the federal statute imposed a substantial obstacle for late-term pre-viability abortions and found it to be constitutional. The act directly outlined the procedure prohibited–the delivery of a viable/living fetus to an anatomical landmark which required an additional “overt act,” an act separate from the delivery usually involving piercing or crushing the fetal skull, to be taken in order to kill the partially delivered fetus, hence countering any argument that the statute was “vague.” Further, the court addressed the possibility of other legal abortion options and stated that, “if intact [dilation and extraction] is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act’s prohibition only applies to the delivery of ‘a living fetus.'” Here, Congress sought, and the court agreed, to create a hard line between abortion and infanticide.

Since Gonzales, states have taken to further testing the limitations of abortion regulation, introducing “fetal pain” laws. Fetal pain laws proceed to assert that a fetus can feel pain at 20 weeks of gestation and therefore abortion should be prohibited after 20 weeks of pregnancy, but no challenges pertaining to these laws have reached the Supreme Court yet. In fact, Whole Woman’s Health v. Cole will be the first major abortion case to be reviewed by the Supreme Court since 2007.

Sifting Through Whole Women’s Health v. Cole

In 2013, the state of Texas passed into law House Bill 2 (H.B. 2), in an effort to “raise the standard and quality of care for women seeking abortions.” The statute, which contained four primary provisions pertaining to abortion regulation, is currently being challenged for two of its provisions. The first is a requirement of physicians performing abortions to have admitting privileges at a hospital located within a radius of 30 miles from where the abortion is being performed. The second provision being challenged requires abortion clinics to comply with the same set of standards applicable to ambulatory surgical centers (ASCs) along with compliance to standards set for abortion clinics.

The challenger? Whole Woman’s Health, a privately-owned women’s healthcare facility that offers comprehensive gynecology services, including abortion, and provides a holistic approach for the care of their patients. The organization was founded in 2003 by Amy Hagstrom Miller who saw a need in the communities of women to address pregnancy and reproductive choice not only as a medical matter, but also as something that requires a woman to evaluate her identity, goals, and future plans–an emotional and weighty process.  Whole Woman’s Health has seven offices within the United States and assists over 30,000 women per year for a variety of reproductive healthcare reasons.

Image Courtesy Of [Ann Harkness via Flickr]

At the time of trial, seven ASCs, located in five major Texas cities, were licensed to perform abortion services and would be able to comply with H.B. 2. Although Texas had over 40 abortion clinics prior to the law taking effect, it was stipulated that, at most, eight abortion-providing centers would be able to comply with the ASCs provision of H.B. 2, subjecting women exercising their right to choose to increased travel and transportation costs. During trial, the State offered expert testimony to suggest that the regulation would be “medically beneficial,” but did not prove necessity, and as such, the District Court found that the ASC requirement, in its entirety, was overly burdensome. Furthermore, the District Court also found that the physician privilege requirement “was not medically justifiable and that the burdens it imposed were not outweighed by any potential health benefits.”

The United States Court of Appeals for the Fifth Circuit found that res judicata barred any facial challenge and as-applied challenge (under a different analysis) on the admitting privilege and ASC compliance provisions of H.B. 2 and that the District Court erred in rejecting the State’s res judicata defense during the motion to dismiss stage of proceedings. Essentially, due to a previous lawsuit that was still pending a decision when Whole Women’s Health challenged H.B. 2 but was shortly thereafter decided, the Plaintiffs could not challenge the bill again as any injury arose out of the same claim and the parties had a legal relationship with one another.

The Court did, however, provide an analysis on the merits as well concluding that:

1. The Plaintiffs failed to prove that H.B. 2 was enacted with an “improper purpose,” mainly to close a majority of abortion clinics in Texas;
2. That the District Court incorrectly analyzed legislative factfinding of information that led to the passage of the Texas law under the “rational basis review,” which solely calls for the court to presume the law in question is valid and inquire whether that law is “rationally related to a legitimate state interest;”
3. The District Court’s analysis and the Plaintiff’s evidence did not satisfy the “large fraction test,” requiring a showing that the law imposes a substantial obstacle on a large fraction of women in Texas;
4. That the abortion services offered at the McAllen Whole Woman’s Health location, a clinic not complying with ASC standards, and lack of a “qualified” clinic for 235 miles created a substantial obstacle for a woman to obtain an abortion and therefore was granted injunctive relief until a licensed facility opened closer to the Rio Grand Valley;
5. That the Plaintiffs offered a considerable amount of evidence showing that the physicians at the McAllen location were denied privileges at the local hospital for reasons “other than their competence,” and were therefore granted injunctive relief enjoining the State of Texas from enforcing the privilege requirement; and
6. That the El Paso clinic was not granted injunctive relief based on an undue burden of women to travel over 550 miles to the nearest Texas abortion clinic in San Antonio because they could travel across state lines to Santa Teresa, New Mexico, which shares a metropolitan area with El Paso to obtain the procedure.

The Fifth Circuit largely upheld the challenged provisions of H.B. 2.

So…What Could That Mean for the Rest of Us?

H.B. 2 showed the level of impact that such abortion regulation could have on the availability of abortion services, bringing down the 40+ available abortion clinics in Texas to a mere 8-10 as outlined in the United States Court of Appeals for the Fifth Circuit decision. Such legislation could create a large and costly barrier, not only to the 5.4 million women in Texas, the second largest female populated state in the country, but to all women in the United States.

In four states–Mississippi, North Dakota, South Dakota, and Wyoming–only one abortion clinic remains and it is unclear whether or not those clinics would be able to survive with the Texas-based legislation.

If such regulation passed muster in the Supreme Court, there could be an increase in self-attempted abortion and risky abortion procedures, which was noted, by the Plaintiffs in Whole Women’s Health, as a growing trend after H.B. 2 was passed in Texas. Additionally, costs would increase in travel, transportation, lodging, and in the procedure itself, potentially costing women their actual right to choose. Qualified abortion clinics would be overwhelmed, appointments would be scarce and harder to coordinate with travel and work schedules, and ultimately, those most impacted would be individuals in poverty and those with transitioning immigration status. Such legislation would force an unhealthy psychological effect on woman already making a difficult decision and consequently impose a great burden on a major woman’s right without proof that the abortion clinics functioning today are doing so at a sub-par or dangerous level.

So, one question remains–what’s next for abortion regulations in the United States?

RESOURCES

Primary

FindLaw: Whole Women’s Health v. Cole

JUSTIA: Griswold v. Connecticut

JUSTIA: Roe v. Wade

JUSTIA: Stenberg v. Carhart

JUSTIA: Gonzales v. Carhart

Legal Information Institute: 18 U.S. Code § 1531

State of Texas Legislature: House Bill 2

Additional

The New York Times: Supreme Court to Hear Texas Abortion Law Case

Planned Parenthood: Federal and State Bans and Restrictions on Abortion

Linda Greenhouse: Becoming Justice Blackmun

Guttmacher Institute: State Policies in Brief – Counseling and Waiting Periods for Abortion

USA Today: Idaho First State to have Fetal Pain Law Rejected

National Public Radio (NPR): High Court’s Pass on ‘Fetal Pain’ Abortion Case Unlikely to Cool Debate

Whole Woman’s Health

Bloomberg: The Vanishing U.S. Abortion Clinic

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Whole Woman’s Health v. Cole: What’s Next for Abortion Rights? appeared first on Law Street.

On November 18, 2015, the House voted 289-137 in favor of the the newly proposed “American Security Against Foreign Enemies Act,” or “SAFE Act,” with a larger than expected number of Democrats (47) joining the Republicans in passing the legislation. The major issue it seeks to address is national security in the wake of the Paris terrorist attacks and the Syrian refugee crisis that has been plaguing Europe for the last few months.

The act itself calls for a more in-depth screening process for “covered aliens,” granting the Director of the Federal Bureau of Investigation (FBI) the power to “take all actions necessary” in order to ensure a squeaky clean security clearance prior to admission as a refugee. What this means for the general population and the citizens of the United States is nothing more than a little security blanket we can drag around made out of taxpayer dollars. What this means for Syrian and Iraqi refugees, a group that already endures the most stringent admission into the United States lasting from 18-24 months, is more time in hell as we idly stand by bureaucratic red tape and paperwork that, statistically speaking, is not likely to affect us. Particularly insulting to this irrational and illogical spread of institutionalized fear and propaganda is that the Paris terrorists that have thus been identified are of French and Belgian nationalities. So naturally, Syrian refugees bear the weight of consequence.

Image courtesy Of [Dominic Chavez/World Bank via Flickr]

What most catches the eye in the “SAFE” Act is the use of “covered alien,” which is defined as “any alien applying for admission to the United States as a refugee who A) is a national or resident of Iraq or Syria; B) has no nationality and whose last habitual residence was Iraq or Syria; or C) has been present in Iraq or Syria at any time on or after March 1, 2011.” While the ironic use of “covered alien” is unmistakable, the inclusion of Iraqi refugees in a discussion about national security pertaining to the admission of Syrian refugees into the United States is questionable.

American interests in Iraq have been evident long before President George W. Bush invaded the country on March 19, 2003. Following that date, the United States embarked on the longest invasion since the Vietnam War, costing an upward of $815.8 billion, claiming the lives of 149,053 civilians, as well as 4,637 military members, a majority of whom were United States soldiers, and resulting in a large migration of Iraqi people to find peace and refuge. While there is no question that many innocent Iraqi people were displaced during the invasion of Iraq for which U.S. decision-makers are responsible and have an obligation to, it appears that policy and lawmakers are, in part, trying to circumvent that obligation by lumping Iraqi refugees into a national security issue that has only been applied to Syrian refugees in an effort to cut some weight off of dues owed.

Iraqi refugees, who are not at the forefront of discussion in the Syrian refugee crisis, have now not only been displaced as a collateral consequence to the U.S. invasion, but are being further unjustly treated through cunning deceit by the hands of the very people that displaced them from their homes.

What is the political agenda here? United States citizens need to recognize the misguided policy-making taking place. The Syrian and Iraqi people are individuals trying desperately to survive. These are human beings that the United States has the capability to keep alive and an obligation to do so. Refugees are not the enemy and should not be treated as such, particularly through sloppy policy. While the focus stays on the “covered aliens,” citizens needs to be prudent and work to uncover policy truths.

While it is imprudent to say with certainty what is in store for the “SAFE” Act, speculation can be made on the basis of what has occurred. It remains unclear whether the Senate will indulge in any legislative discourse or action pertaining to the act, but if the bill were to pass Congress, President Obama has made clear that he would use his veto power to stop the act from becoming law. The problem with President Obama’s pledge is that the House only needs 290 votes, only one more than the last time it voted on the act, to override the president’s veto (with the Senate’s help too, of course). Only one thing is certain–this could lead to a power showdown between Congress and the Commander-in-Chief.

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post The “Covered Alien?”: House Votes for the SAFE Act appeared first on Law Street.