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Tidal Wave: On-Demand Music Streaming is Displacing Physical Album Sales By: Devan Byrd

Tidal Wave:  On-Demand Music Streaming is Displacing Physical Album Sales

By: Devan Byrd

The technology of the day has everything to do with the tidal wave of change that is revolutionizing the music industry through the way music listeners access artists’ music.  On-demand streaming services like Spotify, Pandora, Tidal, and Apple Music are fighting for the ears—and money—of music lovers.[1]  Customers pay a subscription and in exchange they have unlimited access to a vast chunk of all the music ever recorded.  Accordingly, the music industry has responded to music listeners’ trend toward streaming services by altering artists’ delivery. Giving rise to artist exclusives through on-demand streaming services as a path to market share.[2]  On demand streaming services do not pay musicians royalties for the streaming of their music.  A seemingly essential part of promoting fairness and reestablishing the value of music and what is noticeably absent in the current streaming environment, according to conventional wisdom, is that artist do not make enough money when their songs are streamed.[3]  Like enthusiasts of movies and television series who may pay for a combination of subscriptions to Netflix, Amazon Prime, and Hulu, all of these exclusives will present a similar dilemma to music fans who want to listen to a variety of artists, many of which stream exclusively on competing subscription-based streaming services.  In fact, in addition to the added cost to music listeners, it takes little imagination to forecast the potential impact that artist exclusives through subscription-based streaming services may have on music production.  One would simply need to look to the subscription-based movie and television series services, who are now producing their own exclusive content.

Once upon a time, an artist actually had to sell albums to earn awards and recognition from the Recording Industry Association of America (RIAA).[4]  Today, there are over 7.7 million paying subscribers in the American streaming marketplace.[5]  As if that was not enough evidence of the transformation that is occurring in the music industry, take Tidal for example, the only artist owned streaming service, recently sparking music fans interest in the service with exclusively of two extremely popular albums:  Anti and The Life of Pablo.[6]  Although, popular among the artists’ fans the place of the two albums in the music industry’s official historical record present two stark and contrasting side-effects of on-demand streaming exclusives.

First take Rihanna’s latest album, Anti, which was initially exclusively available through Tidal and reached platinum status less than two days after it was released.  However, the way Anti achieved platinum status was not through Tidal.  Instead, Anti reached platinum status through the one million free downloads that were part of a reportedly $25 million deal the artist signed last year with Samsung.[7]  And Tidal has sold another half million downloads of Rihanna’s album.[8]  In addition to reaching platinum status Rihanna’s song “Work,” featuring Drake, which appears on her latest album, Anti, was featured at No. 1 on the Billboard Hot 100.[9]

Like Rihanna, Kanye West’s album The Life of Pablo, which was initially released on Tidal, is currently at the epicenter of cultural conversations.[10]  And subscriptions to the on-demand streaming service have reportedly surged since the album’s release.[11]  But unlike Rihanna’s Anti, The Life of Pablo is notably absent from the music industry’s official historical record.[12]  The album is not charting because Tidal does not report its streams to Nielsen Music, the company that determines the Billboard charts, and it has not been certified gold or platinum by the RIAA.

In an effort to resolve this charting dilemma Nielsen Music recently decided to expand its calculations to include additional platforms actually used by fans to listen to music.  Thus, these days, Nielsen Music tracks sales in all formats—downloads, CDs, and vinyl—as well as streams from on-demand streaming services, video views on platforms like YouTube, and radio streams both online and on terrestrial radio.[13] And employs a proprietary algorithm that incorporates these various avenues available to access music into Nielsen Music’s charting formula.[14]  Under this improved algorithm, theoretically, if an artist’s single were streamed 1.5 billion times on YouTube, the whole album could be certified platinum.[15]

However, when on-demand streaming services like Apple Music and Spotify do not report the replay data to Nielsen Music it is unable to track the streams.  Take for example Drake’s inescapable “Hotline Bling” video, which Apple Music exclusively featured—a strategy that backfired, because Apple does not report its video streams to Nielsen Music, so there was no chance of the song getting Drake to his goal of being No.1.[16]  This is just another example of the ramifications of artist exclusives, and serves as a cautionary tale for all artists:  The streaming platform you choose through exclusive content just might decide your chart fate.[17]

In addition to exclusive, on-demand streaming services provide artists with a new avenue to deliver recorded music directly to fans.  For example, just last week Kendrick Lamar unexpectedly released untiled unmastered. on Spotify.[18]  An eight track project that is notable for its brevity, in-progress aesthetic, and suggestive of the tidal wave that is altering the environment of the music industry.[19]  By allowing artists to provide their fans with direct access to artists’ exercise of musical genius.  The following morning, untitled unmastered. was available on numerous music streaming platforms, including Apple Music and Tidal.[20]  And Lamar’s fans will find that found that a lot of this material was familiar, because the artist already performed certain tracks on shows like The Colbert Report and The Tonight Show with Jimmy Fallon.[21]

Almost a year ago, a conglomerate of ultra-famous musicians—Jay Z, Beyoncé, Rihanna, Kanye West, Arcade Fire, Coldplay, Nicki Minaj, Alicia Keys, Jason Aldean, Madonna, Jack White, Calvin Harris, Daft Punk, Deadmau5, J.Cole, and Usher—joined forces and purchased the music-streaming service Tidal.[22]  The idea: to raise awareness and support for the music industry by re-establishing the value of music.  These artists believe that technology companies who began on-demand streaming services have become more important than musicians when it comes to song distribution.  Thus, this on-demand streaming service placing musicians in charge—at least nominally of the company—which will have a great but perhaps intangible effect that makes the service better than other streaming services.  If artists are actually able to realize higher payouts from Tidal, the company may start a revolution.  However, the revolution has not yet occurred because Tidal lags way behind its competitors with just over one million subscribers.[23]  By contrast, Tidal’s competitors Spotify has more than 75 million users, including 20 million paying subscribers, and Apple Music has about 11 million.[24]

Additionally, the artist-partners forcing this potential revolt do not exactly look like they have been handed a bad deal by the current music landscape.  In fact, these artists’ work and public presentation have often emphasized just how much cash they make every day.  Thus, it seems that music-industry justice is needed, it is needed for new and niche artists.  It is possible that Tidal will be able to provide this justice, but it is equally as possible that they will find that the justice that come with this new platform is perhaps intangible.

The music industry is in a stage of growth and adaptation.  It is unclear how the artists will reclaim control over fair compensation for music listener’s accessing artists’.   However, one thing is for sure, a tidal wave of technology has permanently altered the fabric of the music industry.  And the wave’s impact is being felt by both artists and music listeners.

[1] Sam Sanders, Jay Z’s Music Service, Tidal, Arrives With A Splash, And Questions Follow NPR (Apr. 1, 2015) http://www.npr.org/sections/therecord/2015/03/31/396634244/jay-zs-music-service-tidal-arrives-with-a-splash-and-questions-follow.

[2] Id. See also Spencer Kornhaber, Tidal:  Long Live mIllionaire Musicians The Atlantic (Mar. 30, 2015) http://www.theatlantic.com/entertainment/archive/2015/03/tidal-viva-la-millionaire-musicians/389120/.

[3] Anastasia Tsioulcas, Is Tidal Changing How Fans Talk About Music? NPR (Mar. 1, 2016)  http://www.npr.org/sections/therecord/2016/02/29/468558863/is-tidal-changing-how-fans-talk-about-music.

[4] Anastasia Tsioulcas, Forget Selling Albums—Artists Can Now Go Platinum Via Streaming NPR (Feb. 2, 2016) http://www.npr.org/sections/therecord/2016/02/01/465178626/forget-selling-albums-artists-can-now-go-platinum-via-streaming (RIAA determines whether an album goes platinum or gold.).

[5] Tony Gervino & Andrew Hampp, Jay Z on Competing With Jimmy lovine: ‘I don’t Have To Lose … For You Guys To Win’ Billboard (Mar. 30, 2015) http://www.billboard.com/articles/business/6516945/jay-z-jimmy-iovine-streaming-tidal.

[6] Tsioulcas, supra note 3.

[7] Spencer Kornhaber, Rihanna’s Anti Capitalism The Atlantic (Jan. 29, 2016) http://www.theatlantic.com/entertainment/archive/2016/01/anti-capitalism/435411/.

[8] Tsioulcas, supra note 4.

[9] Tsioulcas, supra note 5.

[10] Id.

[11] Id. See also Charlotte Hassan, Kanye May Have Single-Handedly Doubled Tidal’s Subscribers … Digital Music News (Feb. 24, 2016) http://www.digitalmusicnews.com/2016/02/24/tidal-subscriber-numbers-surge-after-exclusively-releasing-kanyes-album/ (Although the official number of Tidal subscribers have not been released yet, the number of subscribers is rumored to have increased from around one million to two and a half million.).

[12] Tsioulcas supra note 5.

[13] Tsioulcas supra note 3.

[14] Id. (Under Nielsen Music’s modified algorithm, 1,000 streams are now the official equivalent of ten single track sales or one album sale.  Gold status are awarded after the equivalent of 500,000 sales, and platinum on 1 million sales.).

[15] Id.

[16] Id. (“Take for example Drake’s inescapable “Hotline Bling.”  Last fall, when the video for “Hotline Bling” was released, Drake was saying how much he was thirsting for a No. 1 on the Billboard Hot 100.  He wrote about his desire very publicly.”). See also Anastasia Tsioulcas, Drakes’s ‘Hotiline Bling’ Aims At No. 1, And Misses. Why? NPR (Oct. 27, 2015) http://www.npr.org/sections/therecord/2015/10/27/452248402/drakes-hotline-bling-aims-at-no-1-and-misses-why.

[17] Tscioulcas, surpa note 15.

[18] Anastasia Tsioulcas, There’s A New Kendrick Lamar Project Out, But It May Sound Familiar Already NPR (Mar. 5, 2016) http://www.npr.org/sections/therecord/2016/03/04/469172187/theres-a-new-kendrick-lamar-project-out-but-it-may-sound-familiar-already.

[19] Id. (unsurprisingly each track is titled:  untitled, followed by a date)

[20] Id.

[21] Id. (including the live performance done with the show’s bands)

[22] Tscioulcas, supra note 4 (Artist-partners signed a “declaration” of co-ownership for a reported three percent equity in the company.). See also Gervino & Hampp, supra note 5 (With the remaining stakes reportedly owned by Jay Z, another investor, and the record labels.).

[23] Tsioulcas, supra note 4.

[24] Id.

Eroding the right to exclude in Alabama by Elton Darby

Eroding the right to exclude in Alabama

by

Elton Darby

On March 31, 2011, Jason Dean Tulley entered the First Educators Credit Union in Jacksonville, Alabama.[1] Tulley carried a pistol in an unconcealed hip holster on his belt.[2] James Clayton, an off-duty police officer working as a security guard, approached Tulley and requested Tulley return the pistol to his car.[3] After a brief argument, Tulley returned the pistol to his vehicle.[4] Tulley was later arrested and charged with “carrying a pistol on premises not his own” under Ala. Code 13A-11-52.The Jacksonville Municipal Court convicted Tulley, and the Alabama Court of Criminal Appeals affirmed. [5] In Ex parte Tulley, the Alabama Supreme Court reversed.[6] The Court held that Tulley’s due process rights had been violated and that 13-A-11-52 was “facially unconstitutional” because it did not list a penalty for violation of the statute.[7] Ex parte Tulley represents a breakthrough for gun owners. Notwithstanding property owners’ objections, gun owners like Tulley, even if they do not have a permit, can carry a gun nearly anywhere they wish. The objections of private property owners now take a backseat to the desire for unrestricted gun rights. Whether property owners operate fireworks stands, churches, or credit unions, the reality in Alabama is clear: they cannot exclude firearms from their property.

This blog discusses Alabama’s erosion of the property owners’ right to exclude. It does not seek to argue against the fundamental right to keep and bear arms. Rather, it urges Alabama to join states like Texas in balancing, rather than steamrolling, fundamental property rights with unlimited second amendment values.

Americans have a fundamental right to keep and bear firearms.[8] In all fifty states, persons may become authorized to carry a concealed firearm.[9] States employ a diverse array of regulatory schemes to for the issuance of concealed carry permits. The least restrictive are “constitutional carry” states. In these states, no state-issued permit is required to carry a concealed weapon.[10] Weapons can be purchased without restriction, and carried to any place in any manner. On the other end are states like California, which require background checks and waiting periods to even obtain a gun.[11] Alabama, along with the majority of states, provide that the state “shall issue” a concealed weapons permit to persons who meet the statutory requirements.[12] The prevalence of concealed carry legislation makes clear that many states wish for the public to be able to carry their guns outside the home. But may they do so against the wishes of private property owners?

When the destination is work, many states answer Yes. Parking lot laws, enacted by Alabama and a number of other states, provide that employers may not prohibit employees from keeping legal firearms in their vehicles while at work.[13] There are a few exceptions, such as when the firearm is illegal, or the employer has reason to believe the employee will cause bodily harm to others. Parking lot laws have been the subject of much controversy. Proponents argue the laws further the Second Amendment’s “central component” of self-defense.[14] Opponents have claimed, amongst other things, that the laws represent an unconstitutional taking and that the laws violate substantive due process rights related to property.[15]

When the destination isn’t work, the states are split. If the First Educators Credit Union in Ex parte Tulley were located in Texas, a state not commonly regarded in opposition to gun rights, Tulley could be criminally liable for trespass.[16] Private property owners in Texas may prohibit the presence of guns on their property so long as they comply with a posting requirement. The posting requirement allows property owners wishing to exclude firearms from their property to post a sign providing clear indication that the owner prohibits firearms on the property.[17] Concealed carry permit holders who disregard a proper posting are guilty of a misdemeanor. [18] In contrast, Alabama offers only five narrow exceptions to the general rule that persons may carry a gun on the property of anyone.[19] These exceptions do not include places of worship, places where alcohol is served, or child care centers.

The wide-open nature of Alabama law regarding firearms on the property of another disregards the traditional rights of property owners to exclude. In essence, Alabama law completely disregards the nature of an owner’s use of the property, and whether that use might not comport with the public’s possession of deadly weapons. It isn’t difficult to understand why financial institutions like First Educators might wish to prevent guns in their branches. Alabama, however, has removed First Educators ability to decide. No matter the degree of harm that could be imposed by the presence of deadly weapons, First Educators cannot prevent their presence unless it falls into one of the narrow exceptions. This is striking in a world where persons can be removed from private property almost any reason. Persons are commonly removed from property for harmless activities such as remaining at a bar past closing time, or even speaking out at a presidential rally.[20] Alabama has already forced employers to permit weapons in employee’s vehicles. Disallowing property owners a choice to permit firearms further reduces their control of business operations by eroding away their fundamental property right to exclude.

Mr. Tulley infringed upon First Educators’ right to exclude him from it’s private property, yet he emerged unscathed. To prevent similar infringements in the future, Alabama should join Texas in enacting a posting requirement for the prohibition of guns on private property. As discussed, the posting requirement would allow businesses like First Educators to be able to enforce a firearm prohibition backed by the force of law. Such a provision adequately respects the coexistence of two titanic rights in American law. The Supreme Court has termed the right to exclude the most important stick in the of the bundle of property rights.[21] It’s time for Alabama to give that stick back to business owners.

 

 

 

 

 

[1] Ex parte Tulley, ___ So.3d ____, No. 1140049, 2015 WL 5192182 (Ala. Sept. 4, 2015) at *3.

[2] Id; In this article I discuss a property owner’s right to exclude those who possess a “concealed carry” firearm permit. Tulley, however, apparently partook in “open carry” – the open display of a pistol without a permit.

[3] Id.

[4] Id.

[5] Id. at *3-4.

[6] Id. at *10.

[7] Id.

[8] See U.S. Const. amend II; District of Columbia v. Heller, 554 U.S. 570, 595 (2008).

[9] As referred to in this blog, a concealed weapons permit allows a person to carry a concealed pistol on their person. See Ciara McCarthy, Concealed Carry is Now Legal in All Fifty States, Slate,http://www.slate.com/blogs/crime/2013/07/11/illinois_concealed_carry_carrying_guns_in_public_is_legal_in_all_50_states.html (last visited Mar. 8, 2016).

[10] See Eric Benson, Vermont’s Long, Strange Trip to Gun-Rights Paradise, The Trace, (discussing how Vermont is the only state which does not have, and has never had, a firearm permit requirement) http://www.thetrace.org/2015/07/vermont-gun-rights-constitutional-carry/ (last visited Mar. 8, 2016).

[11] Amber Phillips, California has the nation’s strictest gun laws, Washington Post, https://www.washingtonpost.com/news/the-fix/wp/2015/12/04/california-has-the-nations-strictest-gun-laws-here-are-the-other-strictest-and-loosest-states/ (last visited Mar. 8, 2016).

[12] Ala. Code § 13A-11-65 (West through 2016 Reg. Sess).

[13] See e.g., Ala. Code § 13A-11-65 (West through 2016 Reg. Sess).

[14] Ethan T. Stowell, Note, Top Gun: The Second Amendment, Self-Defense, and Private Property Exclusion, 26 Regent U. L. Rev. 521, 541 (2014).

[15] J. Blake Patton, Note, Pro-Gun Property Regulation: How the State of Oklahoma Controls the Property Rights of Employers Through Firearm Legislation, 64 Okla. L. Rev. 81, 99-102 (2011) (critiquing the Tenth Circuit’s reasoning in upholding an Oklahoma parking lot law in Ramsey Winch Inc. v. Henry); Also See Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1211 (10th Cir. 2009).

[16] Tex. Penal Code Ann. § 30.06 (West through end of 2015 Reg. Sess.).

[17] Id.

[18] Id.

[19] Guns are prohibited inside five categories of facilities in Alabama. These are (1) police facilities (2) corrections facilities (3) mental health facilities (4) public or private school or university athletic event not related to firearms (5) professional athletic event not related to firearms. See Ala. Code. 13A-11-61 (West through Act 2016-54 of 2016 Reg. Sess.)

[20] Jeremy Diamond, Silently protesting Muslim woman ejected from Trump rally, Cable News Network, http://www.cnn.com/2016/01/08/politics/donald-trump-muslim-woman-protesting-ejected/ (last visited Mar. 8, 2016).

[21] Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979).

I’m Sorry, Sir, We Will Not Perform Your Hysterectomy: Religious Hospitals’ Refusal to Treat Trans* People by Carly Calhoun

I’m Sorry, Sir, We Will Not Perform Your Hysterectomy: Religious Hospitals’ Refusal to Treat Trans* People

by

Carly Calhoun

 

In 2015, a transwoman sought surgical care prescribed by her doctor to ameliorate complications of a breast augmentation she underwent years’ prior.[1] The hospital refused to allow the surgery despite coverage from her insurance provider.[2] At first the hospital said it “does not have a policy on assisting with gender transition,” but after rumors came out that the policy was due to “conservative Catholic officials affiliated with [the hospital],” it referenced the fact that as a Catholic hospital it must adhere to the Ethical and Religious Directives of the Catholic Church (ERDs).[3] While religious hospitals and care providers are not the only places trans people experience discrimination in healthcare,[4] these facilities continue to cite religious freedom to violate numerous laws including the Affordable Care Act (ACA).

Many of these hospitals allow cisgender people to receive procedures denied to trans people. For example, a transwoman called the above hospital in question to get a consultation on breast augmentation and was told they accepted new patients, but when they learned she was trans they denied her an appointment.[5] The World Professional Association for Transgender Health (WPATH) recognizes that gender affirming surgeries constitute “medically necessary care” under most insurance plans.[6] It would logically follow that both surgeries for ciswomen and transwomen should be allowed in all hospitals. This is not necessarily the case.

Only seventeen states have public accommodations laws prohibiting discrimination based on gender identity,[7] while only fourteen states specifically prohibit medical providers from discriminating based on gender identity.[8] Fortunately, the Affordable Care Act (ACA) bans discrimination in certain healthcare services on the same bases as those prohibited under other federal civil rights legislation.[9] Under section 1557 of the ACA, healthcare providers receiving federal subsidies, credits, or contracts of insurance shall not discriminate “on the basis of race, color, national origin, sex, disability, or age.”[10] And HHS’s Office for Civil Rights (OCR) which enforces the ACA, proposed new rules barring discrimination based on gender identity specifically (even though it already enforces the rules against those discriminating against trans people “based on sex”).[11] Many Catholic hospitals receive Medicare or Medicaid reimbursement and other federal subsidies, therefore falling under this antidiscrimination provision of the ACA. In Rumble v. Fairview Health Services, the federal district court of Minnesota held that a hospital was subject to the ACA’s antidiscrimination provision when it mistreated a young transman because it received federal funding through Medicare and Medicaid contracts.[12] This is consistent with other federal court decisions based on discrimination under title VI and section 504 of the Rehabilitation act that Medicare and Medicaid funds constitute federal financial assistance.[13]

Unfortunately, religious hospitals argue that allowing performance of certain procedures on trans people violates their First Amendment right to freedom of religion.[14] To what extent the federal Religious Freedom Reformation Act (RFRA) allows an exception to this discrimination is unclear. But the ACA’s text only provides a “conscience” exemption for abortions[15] and the Hobby Lobby decision applies to birth control coverage from employers.[16] Neither of these rules seem to apply to a hospital’s refusal to perform surgeries on one population that it will not perform on another, which is what section 1557 prohibits.[17] But the fact that a great (and growing) number of hospitals in the U.S. are run by or affiliated with the Catholic church amplifies this issue, [18] especially when the only accessible care is at a private religious hospital.[19] Unfortunately, to prove that a private hospital is “quasi-public” institution acting under the color of the state is very hard[20] and actions against private hospitals in this regard may easily fail.[21]

These hospitals and systems not only deny life affirming surgeries, but considering the rate of suicide and violence against trans people,[22] they deny life-saving surgeries. Trans people have better health outcomes when they feel more comfortable in their own skin.[23] Further, many states require some form of surgery in order for a person to correct the gender marker on their state identification documents.[24] When many trans people do not need surgery to “pass” as the gender with which they identify, it causes confusion and many times harassment or worse from others who do not understand why the gender marker on his or her ID does not match the person with whom they are interacting. Not all trans people want or need gender affirming surgery, but a hospital should respect the decisions of doctors and even health insurance companies that deem some surgeries as medically necessary for certain individuals. Freedom of religion must only be allowed to go as far as private activity. By participating in the market and offering services to the public, these religious hospitals must offer services to eve

[1] Lou Chibbaro, Jr., Georgetown Hospital Accused of Anti-Trans Discrimination, Wash. Blade (June 9, 2015), http://www.washingtonblade.com/2015/06/09/georgetown-hospital-accused-of-anti-trans-discrimination/.

[2] Id.

[3] Id. See also U.S. Conf. of Cath. Bishops, Ethical and Religious Directives for Catholic Health Care Services, (5th Ed. 2009), available at http://www.usccb.org/issues-and-action/human-life-and-dignity/health-care/upload/Ethical-Religious-Directives-Catholic-Health-Care-Services-fifth-edition-2009.pdf (last visited Mar. 6, 2016).

[4] Tari Hanneman, Healthcare Equality Index 2014: Promoting Equitable and Inclusive Care for Lesbian, Gay, Bisexual and Transgender Patients and Their Families, 4 Hum. Rts. Campaign Found. (2014), available at http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/HEI_2014_high_interactive.pdf#__utma=149406063.1385 (“70% of transgender or gender non-conforming patients surveyed have experienced some type of discrimination in healthcare”).

[5] Chibbaro, Jr., supra note 1.

[6] Stephen Whittle et al., WPATH Clarification on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage for Transgender and Transsexual People Worldwide, World Prof’l Ass’n for Transgender Health (June 17, 2008), http://www.wpath.org/site_page.cfm?pk_association_webpage_menu=1352&pk_association_webpage=3947.

[7] Maps of State Laws & Policies, Hum. Rts. Campaign, http://www.hrc.org/state_maps (last visited Mar. 6, 2016).

[8] Laws Prohibiting Discrimination Against Gays and Lesbians FAQ, NOLO, http://www.nolo.com/legal-encyclopedia/laws-prohibiting-discrimination-against-gays-faq-32295.html (last visited Mar. 6, 2016).

[9] ACA 42 U.S.C. § 18116 (2010) (“Except as otherwise provided for in this title . . . an individual shall not, on the ground prohibited under title VI . . . title XI . . . the Age Discrimination Act . . . or section 504 of the Rehabilitation Act . . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments)”).

[10] U.S. Dep’t of Health and Hum. Serv., OCR Enforcement under Section 1557 of the Affordable Care Act Sex Discrimination Cases, HHS.Gov, http://www.hhs.gov/civil-rights/for-individuals/section-1557/ocr-enforcement-section-1557-aca-sex-discrimination/index.html (last visited May 2, 2016).

[11] See U.S. Dep’t of Health and Hum. Serv., HHS Takes Next Step in Advancing Health Equity Through the Affordable Care Act, HHS.Gov (Sept. 3, 2015), http://www.hhs.gov/about/news/2015/09/03/hhs-takes-next-step-advancing-health-equity-through-affordable-care-act.html.

[12] Rumble v. Fairview Health Servs., No. 14-CV-2037 SRN/FLN, 2015 WL 1197415, at *1, *14 (D. Minn. Mar. 16, 2015).

[13] See e.g., United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1042 (5th Cir. 1984), U.S. v. Cabrini Med. Ctr., 639 F.2d 144, 151 (2d Cr. 1984), Bob Jones Univ. v. Johnson, 396 F. Supp. 597, 603 n.21 (D.S.C. 1974), aff’d by 529 F.2d 514 (4th Cir. 1975), and Valentine v. Smith, 654 F.2d 503, 512 (8th Cir. 1981).

[14] See No Catholic Right to Transgender Surgery, Catalyst (Mar. 2008), http://www.catholicleague.org/no-catholic-right-to-transgender-surgery/.

[15] ACA 42 U.S.C. § 18023 (2010).

[16] Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014).

[17] See U.S. Dep’t of Health and Hum. Servs., supra note 11.

[18] Nina Martin, The Growth of Catholic Hospitals, By the Numbers, ProPublica (Dec. 18, 2013), https://www.propublica.org/article/the-growth-of-catholic-hospitals-by-the-numbers.

[19] See John Geyman, Catholic Hospital Systems: A Growing Threat to Access to Reproductive Services, The Official Blog of Physicians for a Nat’l Health Program (Mar. 24, 2014), http://pnhp.org/blog/2014/03/24/catholic-hospital-systems-a-growing-threat-to-access-to-reproductive-services/.

[20] Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982) (there must be either (1) “a sufficiently close nexus between the State and the challenged action of the regulated entity,” (2) the State must have “exercised coercive power or provided significant encouragement” so that entity’s actions are seen as a decision of the State, or (3) “the required nexus may be present if the private entity has exercised powers that are traditionally the exclusive prerogative of the State”).

[21] See e.g., Estes v. Kapiolani Women’s and Children’s Med. Ctr., 787 P.2d 216 (Hawai’I Feb. 20 1990) (holding that because the state did not direct, encourage, or support the hospital’s policies and because there was no sufficient nexus between the hospital’s policy and its funding from the state it was not quasi-public), and Grossling v. Ford Mem’l Hosp., 614 F.Supp. 1051, 1057-58 (E.D. Tex. 1985) (holding a hospital was not a quasi-public institution because there was no nexus between regulations imposed by the state and the hospital’s action, there was no coercive power for the hospital to act the way it did, and hospitals are not traditionally operated by the state).

[22] See Ann P. Haas et al., Suicide Attempts among Transgender and Gender Non-Conforming Adults: Findings of the National Transgender Discrimination Survey, 2 Am. Found. For Suicide Prevention & The Williams Inst. (Jan. 2014), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/AFSP-Williams-Suicide-Report-Final.pdf (showing that 42 percent of trans women and 46 percent of trans men have attempted suicide).

[23] Dean Spade, Documenting Gender, 59 Hastings L.J. 731, 757 (Mar. 2008), see also WPATH.

[24] See Know Your Rights: FAQ About Identity Documents, Lambda Legal, http://www.lambdalegal.org/know-your-rights/transgender/identity-document-faq (last visited Mar. 6, 2016).

The Battle for the Living Wage Comes to Alabama By Shruti Jaishankar

The Battle for the Living Wage Comes to Alabama 

By

Shruti Jaishankar

 

“I haven’t bought groceries since I started this job. Not because I’m lazy, but because I got this ten pound bag of rice before I moved here and my meals at home (including the one I’m having as I write this) consist, by and large, of that. Because I can’t afford to buy groceries.”[1]

 

In 2014, 1.3 million workers in the United States earned the federal minimum wage.[2] 1.7 million workers in the United States earned under that level[3]. Most of those workers, like the author of the words above, were between 16 to 29 years old[4]. These figures encompass high school students working their first part-time job at a restaurant, but they also encompassed young millennials working entry-level jobs that pay barely more than their monthly rent. These figures encompass single parents, graduates with towering student loans, and overqualified professionals that lost their higher-paying jobs during the recession. Another surprising feature of these statistics is that the majority of these hourly-paid workers are not the high school dropouts flipping burgers that our parents warned us we would become if we didn’t apply ourselves in school. They are high school graduates, thousands of which have at least some college or an Associates degree[5]. Thousands more have even made it all the way through college and attained a bachelor’s degree[6], and yet still find themselves working for an hourly wage that oftentimes is not enough to cover all their expenses. Trying to survive on a minimum wage is no longer an issue that affects only the least qualified of us; it is now a plight so common that it affects all of us.

 

In her open letter to the CEO of Yelp, Talia Jane outlines many of the problems of trying to survive on the minimum wage. Jane explains that 80% of the roughly $1400 she makes a month goes to paying her rent[7]. That leaves Jane, and other similarly situated workers, with only 20% of her income left to cover transportation, her phone bill, food, and any other incidental expenses she may incur[8]. Jane is luckier than most, however; she receives benefits in the form of healthcare, vision, and dental insurance through her employer, but she can barely scrape together the $20 co-pay when she gets sick[9].

 

Jane lives in the Bay Area of San Francisco, admittedly one of the most expensive places to live in the United States. In the Bay Area, the minimum wage is $9 an hour[10]. A living wage for one adult to support herself is $14.37[11]. This disconnect between the minimum wage and the living wage is pervasive through the United States and we in Alabama are not insulated from it. In Tuscaloosa, the minimum wage is $7.25, while a living wage for one adult is $10.10[12]. In Birmingham, a living wage is $10.36[13].

 

The fight to help workers earn a salary they can actually live on is unfolding close to our own home. On February 23, 2016, lawmakers on Birmingham’s city council acted to raise their minimum wage to $10.10 an hour, closer to a living wage[14]. If successfully implemented, Birmingham would have been the first city in the South with such a high minimum wage[15]. In an effort to keep the state legislature from circumventing their efforts, the city council voted to implement this new wage citywide as early as February 24[16]. However, before the living wage could become a reality in Birmingham, the state legislature of Alabama quickly passed a bill barring cities from setting local wage requirements[17]. Governor Bentley signed the bill into law a mere hour after it passed in the Senate[18]. Bentley cited “wage consistency” and fear over how the law would affect local business owners as his motivation behind signing the bill, though the Governor identified poverty as a key concern facing Alabama in his State of the State address earlier this year[19].

 

This struggle between local and state lawmakers is by no means a new one. In 29 states and the District of Columbia, workers are paid above the federal minimum[20]. Just last week, lawmakers in Oregon embarked on a plan to raise the City of Portland’s minimum wage to $14.25 by 2022[21]. These local laws raising the minimum wage often meet the same resistance that Birmingham’s did. This is because of the recent “explosion of local minimum wage laws, and that extends into more conservative states where you have more liberal metropolitan areas[22].” As a result, in conservative areas, state legislatures often balk and take action to block such laws.

 

The problem is that the best way to improve the plight of struggling workers like Talia Jane is on a local level. City councils are best equipped to understand the concerns of both their business owners and the workers who serve them. A federally mandated minimum wage, while helpful as a benchmark, does not accurately reflect the economic realities of cities as different as San Francisco and Birmingham. As long as state legislatures continue to block these efforts, however, change will still occur on a halting and piecemeal basis while minimum wage workers continue to struggle.

 

It is important that cities like Birmingham, Portland, and San Francisco take stock of the individual problems that face their cities and set living wages that reflect those unique problems. This would allow the rest of the state to follow suit. The state legislature should act as a facilitator for individualized determinations of a living wage in each city instead of acting as a roadblock on the way to combatting poverty.

[1] Talia Jane, An Open Letter to My CEO, Medium.Com (Feb. 19, 2016), available at https://medium.com/@taliajane/an-open-letter-to-my-ceo-fb73df021e7a#.48zsbrlah

[2] U.S. Bureau of Labor Statistics, Characteristics of Minimum Wage Workers, 2014, at 1, BLS Reports (Apr. 2015), http://www.bls.gov/opub/reports/cps/characteristics-of-minimum-wage-workers-2014.pdf

[3] Id.

[4] Id.

[5] Id. at 9

[6] Id.

[7] Talia Jane, An Open Letter to My CEO, Medium.Com (Feb. 19, 2016), https://medium.com/@taliajane/an-open-letter-to-my-ceo-fb73df021e7a#.48zsbrlah

[8] Id.

[9] Id.

[10]Dr. Amy K. Glassmeier and The Massachusetts Institute of Technology, Living Wage Calculator for San Francisco County, California, (Feb. 28, 2016), http://livingwage.mit.edu/counties/06075

[11] Id.

[12] Dr. Amy K. Glassmeier and The Massachusetts Institute of Technology, Living Wage Calculator for Tuscaloosa County, Alabama, (Feb. 28, 2016), http://livingwage.mit.edu/counties/01125.

[13] Dr. Amy K. Glassmeier and The Massachusetts Institute of Technology, Living Wage Calculator for Jefferson County, Alabama, (Feb. 28, 2016), http://livingwage.mit.edu/counties/01073.

[14] Kelsey Stein, Birmingham City Council Again Votes to Increase Minimum Wage Sooner Than Planned, AL.com, (Feb. 23, 2016), http://www.al.com/news/birmingham/index.ssf/2016/02/birmingham_minimum_wage_vote_d.html

[15] Id.

[16] Id.

[17] Jana Kasperkevic, Alabama Passes Law Banning Cities and Towns From Increasing Minimum Wage, The Guardian, (Feb. 26, 2016), http://www.theguardian.com/us-news/2016/feb/26/alabama-passes-law-banning-minimum-wage-increase?CMP=share_btn_link

[18] Id.

[19] Id.

[20] Alan Blinder, When a State Balks at a City’s Minimum Wage, The New York Times, (Feb. 21, 2016), http://www.nytimes.com/2016/02/22/us/alabama-moves-to-halt-pay-law-in-birmingham.html.

[21] Id.

[22] Id.

Beyond Doctors and Lawyers: The Broad Reaching Impact of Occupational Licensure on Social Mobility by Jennifer Huddleston

Beyond Doctors and Lawyers: The Broad Reaching Impact of Occupational Licensure on Social Mobility by Jennifer Huddleston

America was founded on an individual’s rights to life, liberty, and the pursuit of happiness. However, if your pursuit of happiness includes employment in many fields or being an entrepreneur and opening your own business, then that pursuit is often burdened by occupational licensure laws. Such laws regulate not only highly skilled professions like accountants, doctors, and lawyers, but far more common professions that do not require advanced degrees like florists, hair braiders, and tour guides.[1] The number of occupations requiring licensure has grown exponentially in recent years. In 1950 only 5% of the workforce required a license, while in 2008 over 25% of workers were subject to state licensure laws.[2]  Additionally, the requirements for licensure are not always commiserate with the level of education necessary for the occupation nor are they related to the actual danger posed to the public.[3]

Due to the initial expense of the actual license and the requisite training and testing, such licensure laws disproportionately impact minorities and create additional barriers to entry for those at lower incomes.[4] As a result, such laws have begun to draw criticism from both the left and the right seeking to improve their status.[5] Even the White House recently examined the negative impact of occupational licensure laws and the burden they place on those attempting to succeed.[6] Despite this turn in academic and executive support, states continue to pass licensing laws that create additional burdens on those attempting to gain new opportunities.[7]

Licensing laws create barriers to entry for marginalized groups in a variety of ways. In some cases, licensing laws were initially enacted to prevent minorities from entering certain professions and continue to protect incumbents in the industry.[8] But even those not created for such reasons, often have disproportionate impacts. Typically someone seeking a license for an occupation must pay a fee of an average of $209, pass an exam, and complete at least nine months of training, and although specific requirements range between states and occupations, these requirements can place burdens on those seeking to transition to a profession.[9] Additionally, once obtained such licenses are typically not transferable between states placing greater burdens on those who cannot economically afford to maintain multiple licenses.[10] Many states also ban those with criminal convictions from obtaining licenses creating yet another barrier for former offenders seeking employment upon re-entry.[11] Additionally, the high price of civil penalties for those who violate licensure again penalizes lower income entrepreneurs more than others.[12] Many occupations such as hair-braiding and eyebrow threading are passed down in communities rather than learned through formal training.[13] Finally, licensure boards and licensing decisions are often made by those already licensed in the profession creating an incentive to make licenses more difficult to obtain and keep competition low.[14]

Not only does occupational licensure prevent social mobility, it fails to meet the state promoted goals of increased safety and often have negative impacts on both providers and consumers. One study found that licensure requirements have at best no impact on service quality and sometimes even have a negative impact on the quality.[15] Licensing requirements keep new and innovative entrants out of the market and may even decrease the overall labor force.[16] The White House found that licensure requirements increased the price of a service.[17] In at least one case, the licensing agency could not point to any injuries that had occurred as a result of the occupation.[18] Furthermore, the education and licensure requirements are often broadly constructed and therefore may not be relevant to all those in the profession. For example, until recently eyebrow threaders in Texas were required to obtain cosmetology licenses following a curriculum and testing that never discuss threading techniques.[19]

Licensure for some occupations dates back to the American founding and the courts have often upheld such regulations in the state’s police powers or promotion of the general welfare.[20] Until recently, because of Supreme Court precedent originally established in Williamson v. Lee Optical, individuals had little recourse against restrictive licensing laws given the holding such laws violated neither the Due Process or Equal Protection clauses.[21] States were further empowered to use occupational licensure laws by the Court’s statement, “It is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement.”[22] Yet, recently the courts have become the ally of individual rights against these increasingly restrictive requirements of occupational licensure. The Sixth, Tenth, and Federal Circuit have struck down occupational licensure requirements viewed as overly burdensome against the likes of tour guides and casket sellers.[23] The Texas Supreme Court vocally struck down regulation of eyebrow threaders.[24] And even the Supreme Court has signaled that licensing boards may not have the extremely broad discretion to create regulations that they once enjoyed.[25] Hopefully, this is the beginning of an emerging trend in favor of individual liberty and a shift away from over regulation of an individual’s right to earn a living and become an entrepreneur.

[1] See Morris M. Kleiner, Why License a Florist?, New York Times, May 28, 2014, at A35, available at http://www.nytimes.com/2014/05/29/opinion/why-license-a-florist.html?_r=0.

[2]Mike Lee, Rise of the Licensing Cartel, Forbes (Feb. 1, 2016) http://www.forbes.com/sites/realspin/2016/02/01/rise-of-the-licensing-cartel/#7b14f99276fe

[3] Dick M. Carpenter II et. al., License to Work: A National Study of the Burdens from Occupational Licensing, Institute for Justice, May 2012, available at http://ij.org/report/license-to-work/.

[4] See Dept. of Treas. Office of Econ. Pol’y et al., Occupational Licensing: A Framework for Policymakers, The White House, July 2015, https://www.whitehouse.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf.

[5] E.g., Carpenter, supra note 2; Edward Rodrigue and Richard V. Reeves, Four Ways Occupational Licensing Damages Social Mobility, Brookings (Feb. 24, 2016) http://www.brookings.edu/blogs/social-mobility-memos/posts/2016/02/24-occupational-licensing-opportunity-hoarding-reeves.

[6] Dept. of Treas. Office of Econ. Pol’y et al., supra not 4.

[7] See, e.g., Lee, supra note 2.

[8] See David E. Bernstein, Licensing Laws: A Historical Example of the Use of Government Regulatory Power Against African Americans, 31 San Diego L. Rev. 89, 90 (1994).

[9] Carpenter, supra note 3, at 16.

[10] See Rodrigue, supra note 5.

[11] See id.

[12] See Carpenter, supra note 3.

[13] E.g., Texas Eyebrow Threading, Institute for Justice, http://ij.org/case/patel-v-tx-department-of-licensing-and-regulation/.

[14] See Nicola Perisco, The Political Economy of Occupational Licensing Associations, 31 J.L. Econ. & Org. 213, 213 (2015).

[15] Lee, supra note 2.

[16] Morris M. Kleiner, Reforming Occupational Licensure Policy, The Hamilton Project, March 2015, available at http://www.brookings.edu/~/media/research/files/papers/2015/03/11-hamilton-project-expanding-jobs/thp_kleinerdiscpaper_final.pdf.

[17] Dept. of Treas. Office of Econ. Pol’y et al., supra note 4.

[18] See Texas Eyebrow Threading, supra note 13.

[19] See Complaint at ¶ 12-13, Patel v. Texas Dept. of Licensure & Regulation, No. D-1-GN-09-0004118 (Tex. Dist. 2009).

[20] See Mark T. Law & Mindy S. Marks, Effects of Occupational Licensure: Evidence from the Progressive Era, 52 J.L. & Econ 351, 357 (2009).

[21] 348 U.S. 483, 485-86 (1955).

[22] Id. at 487.

[23] See Edwards v. District of Columbia, 755 F.3d 996 (D.C. Cir. 2014); Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004); Cragimiles v. Giles, 312 F.3d 220 (6th Cir. 2002).

[24] Mark Joseph Stern, Texas Could Become an Even More Dangerous Place, Slate.com (Jul. 7, 2015) http://www.slate.com/articles/news_and_politics/jurisprudence/2015/07/texas_supreme_court_strikes_down_eyebrow_threading_regulations_return_to.html.

[25] See N.C. Bd. Of Dental Exam’rs v. FTC, No. 13-554, 2014 U.S. LEXIS 1710 (2014).

Immigration Policy at Home—United States v. Texas and the Bounds of “Executive Action” Jadie Mims

Immigration Policy at Home—United States v. Texas and the Bounds of “Executive Action”

Jadie Mims

 

 

In an effort to reform the current, admittedly dysfunctional, United States immigration policy, President Barack Obama in November 2014 announced a plan to develop methods for receiving, documenting, and eventually legalizing large numbers of immigrants.[1] Sharing his mounting frustration with the refusal of a Republican-led House of Representatives to even allow a vote on a bipartisan bill which had already passed in the Senate, the President announced three separate initiatives under which he would attempt to bypass traditional legislative means to alter our immigration landscape.[2] The first and second of these proposals—promising to bolster security at the southern border in an effort to combat illegal immigration from Mexico and South America, while making it easier for “high-skilled immigrants” to come to the country legally—have not been as harshly criticized as the third. In what would eventually provide the basis for an important immigration case before the Supreme Court this term,[3] the President’s third initiative explicitly committed to “take steps to deal responsibly with the millions of undocumented immigrants who already live in our country.”[4]

The practical implication of this third action would essentially allow undocumented immigrants meeting two criteria—“they have children who are U.S. citizens or lawful permanent residents… and they have been in the United States at least since January 2010—to apply for a program that would allow them to stay in the country for three years and work here legally.”[5] However, this policy has never been implemented.[6] Instead, the State of Texas (along with twenty-five other states) sued in federal court, asking a federal trial court judge to enjoin the application of the law.[7]

The central legal issue began as a question of whether President Obama had the authority to institute such a program, or if doing so would be an excessive breach of his executive power.[8] Following trial last year, district judge Andrew S. Hanen (S.D. Tex.) determined that the President’s action was excessive, and ultimately issued an order enjoining the implementation of the President’s “removal priorities.”[9] In striking the action, Judge Hanen framed the program as one “designed to provide legal presence to over four million individuals who are currently in the country illegally… enabl[ing them] to obtain a variety of both state and federal benefits.”[10] On appeal to a three-judge bench of the Fifth Circuit Court of Appeals, Judge Jerry E. Smith—writing for the 2-1 majority—elected to affirm the district court.[11] The United States petitioned to the Supreme Court in November 2015 for a writ of certiorari,[12] which the Court granted in January 2016.[13] Arguments will “almost certainly” be presented before the Court in later April 2016.[14]  Though there are four questions before the Court in total, only one is truly important to our immigration inquiry for purposes of this note—again, the question answered by both lower courts in the affirmative as to whether the Obama administration had breached its authority in its issuance of the proposed immigration policy.[15]

As noted by the Fifth Circuit’s majority, “[i]n specific and detailed provisions, the [Immigration and Nationality Act of 1965] expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present and confers eligibility for ‘discretionary relief allowing [aliens in deportation proceedings] to remain in the country.’”[16] The majority thus believes that Congress holds the power—not the President or Executive Branch—to determine what distinct classes of people should be deemed lawful and unlawful.[17]Alternatively, the dissenting judge argued that, because the DHS is only granted an annual appropriation of about 3.5 percent of what it would cost to actually remove undocumented immigrants from the country, the agency is in fact forced to prioritize what it will and will not pursue.[18] By this logic, the deferred action decisions would be nothing more than “quintessential exercises of prosecutorial discretion”—not an unconstitutional breach of the President’s executive power.[19]

Though the administration concedes that it is the duty of the legislature to create immigration law,[20] it claims Congress “has given the executive branch discretion to make decisions about immigration and deportation, including who gets to stay in the country.”[21] Aligning with the Fifth Circuit’s dissent, it asserts that because existing immigration law subjects such a huge number of undocumented immigrants to potential deportation, the insignificant scope of the DHS appropriation is in itself a “tacit acknowledgement by Congress of the executive branch’s discretion to prioritize which immigrants should be deported.”[22] The States, on the other hand, argue that “Congress intended for that discretion to be exercised on a case-by-case basis, rather than by enacting a sweeping policy that will allow four million people to stay in the country and work here.”[23]

As the administration argued in its petition for a writ of certiorari,[24] the Court’s refusing to hear arguments on this case would have had far-reaching implications. Now, with the petition granted and the case soon heading into arguments before the Court, it is readily apparent that an affirmation of the lower courts’ ruling would have the same effect. Upholding the nationwide injunction against the enforcement of President Obama’s proposed immigration plan “bars approximately 4 million parents—who have lived in this country for years, would pass a background check, are not priorities for removal, and have ‘a son or daughter who is a U.S. citizen or lawful permanent resident’—from requesting deferred action… and receiving authorization to work lawfully.”[25]

The reality of the situation is this: despite the States’ argument (and the lower courts’ politically-motivated affirmation[26]) that the Obama administration is overstepping its legal authority in pushing this change in immigration policy, Congress’s significant underfunding of DHS’s effort to deport undocumented immigrants necessitates a line being drawn between those immigrants that should be allowed to stay in the country and those that should not. As the Court recently explained in Arizona v. United States, “[a] principal feature of the removal system is the broad discretion exercised by immigration officials.”[27] Congress chose to allow the DHS discretion in choosing how to allocate its lump-sum appropriation,[28] and the President’s setting forth a plan for how the Department could best utilize that money is not an abuse of his executive power. This is outlined in detail in Judge King’s dissent to the Fifth Circuit opinion,[29] and should be apparent to the Court in the upcoming months. Being the more sensible—and again, less politically motivated—view, I believe the eventual result should be to overturn the Fifth Circuit’s affirmation of the district court’s imposed injunction.

 

 

[1] Barack Obama, U.S. President, Address to the Nation on Immigration, (Nov. 20, 2014), available at https://www.whitehouse.gov/the-press-office/2014/11/20/remarks-president-address-nation-immigration

[2] Id.

[3] United States v. Texas, No. 15-674 (U.S. Supreme Court)

[4] Obama, supra note 1.

[5] Amy Howe, Court will review Obama administration’s immigration policy: In Plain English, SCOTUS Blog (Jan. 19, 2016, 4:39 PM), http://www.scotusblog.com/2016/01/court-will-review-obama-administrations-immigration-policy-in-plain-english/

[6] Id.

[7] Id.

[8] Id.

[9] Texas v. United States, 86 F. Supp. 3d 591, 677 (S.D. Tex. 2015).

[10] Id. at 604.

[11] Texas v. United States, 809 F.3d 134 (5th Cir. 2015).

[12] Petition for Writ of Certiorari for Defendant-Petitioners [hereinafter Petition for Writ of Certiorari], United States v. Texas (2015) (No. 15-674).

[13] Howe, supra note 6.

[14] Id.

[15] See Id.

[16] See Texas v. United States, 809 F.3d 134 at 179 (quoting Arizona v. United States, 132 S. Ct. 2492, 2499 (2012)).

[17] See Id at 165-167.

[18] Id. at 191.

[19] Id. at 189.

[20] See Petition for Writ of Certiorari, supra note 12 at 2 (quoting Truax v. Raich, 239 U.S. 33, 42 (1915), that “the ‘authority to control immigration * * * is vested solely in the Federal Government.’”).

[21] Howe, supra note 5.

[22] Id.

[23] Id.

[24] See Petition for Writ of Certiorari, supra note 12.

[25] Id. at 33.

[26] See Ed Kilgore, It’ll Get Worse Before It Gets Better on Immigration Actions, Washington Monthly (Apr. 13, 2015), http://www.washingtonmonthly.com/political-animal-a/2015_04/itll_get_worse_before_it_gets055065.php

[27] 132 S. Ct. at 2499 (2012).

[28] See Petition for Writ of Certiorari, supra note 12 at 4.

[29] See Texas v. United States, 809 F.3d at 189.

Growing American Islamophobia in the Wake of the Syrian Civil War By Shruti Jaishankar

Growing American Islamophobia in the Wake of the Syrian Civil War

By

Shruti Jaishankar

The Syrian Civil War has raged for approximately four years now, as the conflict arose as a part of the Arab Spring movement that swept the Middle East. While policymakers and pundits alike have ruminated on how best to contain the region, the question of what to do with the millions of displaced Syrian citizens has come secondary.

Until recently. The body of three-year-old Aylan Kurdi, a Syrian refugee fleeing with his family to the Greek island of Kos, provided fodder for a renewed debate on how to protect the innocent. Though the Kurdis had been living in Turkey for three years after they escaped Syria, the family cites Western states’ reluctance to provide safe passage for refugees as part of the reason for the tragedy.[1] Sadly, the Kurdis are not an unusual story; around 2,700 refugees have perished while trying to cross the Mediterranean, and as many as 200 have died in one trip.[2] Approximately 12 million Syrians have been displaced from their homes, creating a crisis as they flood into neighboring countries, Europe, and eventually the Western hemisphere.[3]

European nations are quickly becoming overwhelmed by the influx of refugees, and some have resorted to erecting stringent border controls in response. These border controls and the hostility they represent are problematic, as refugees are entitled to certain basic protections set out in the 1951 Refugee Convention.[4] Under the convention refugees are given the opportunity to apply for political asylum, and may not be sent back to the country that endangered their lives in the first place.[5] As long as a refugee can prove that they are fleeing a hostile or volatile situation, such as a civil war, they must be afforded these basic protections. Border controls and unnecessary bureaucratic structures hinder the spirit of the 1951 convention.

Though many European nations may not have the political or economic infrastructure to support the deluge of refugees, the United States has no such defense. In the four years since the Syrian Civil War broke out, the United States has only accepted about 1,500 Syrian refugees.[6] This is due in part to the additional bureaucratic hurdles that refugees must surmount in order to seek asylum in the United States. Unlike in Europe, the State Department must first vet a select number of refugees before they make seek asylum in the United States.[7] The vetting process is extensive: they must be screened by the National Counter Terrorism Center, the FBI Terrorist Screening Center, and by the Departments of Homeland Security and Defense.[8] Though President Obama has pledged to accept up to 10,000 Syrian refugees in the upcoming fiscal year, that number is not nearly enough and the process will be slow and painful considering the bureaucratic red tape these refugees must first navigate.[9]

The bureaucratic impediments in both Europe and the United States are admittedly due to national security concerns, but are also symptomatic of a larger problem – rampant and unchecked Islamophobia. Before the attacks on the World Trade Center, the United States offered asylum to hundreds of thousands of refugees. During the era of the Vietnam War, the United States took in almost 300,000 refugees over a span of two years from the ravaged area.[10] A few years later, the United States would take in more than 100,000 refugees from Cuba.[11] However, since September 11, 2001, the US has shown a marked reluctance to welcome refugees from the Middle East, reducing the number of immigrants allowed into the country from the hundreds of thousands to about 20,000.[12] The United States sees these refugees as potential terrorists first, and as displaced families fleeing from violence last. The Islamophobia problem has grown so serious in the United States that it has resulted in a 14-year-old-boy being arrested for bringing a homemade clock to school because of its supposed resemblance to a bomb.[13] A leading GOP presidential candidate even declaimed that a Muslim cannot be president of the United States.[14] Ahmed Mohamed and the refugees from Syria share “that menacing brownish color that racists and bigots associate with…. Some country they probably think is called Terroristan.”[15]

Neither the Syrian Refugee Crisis nor the instability in the Middle East have an obvious solution, but the United States and other developed countries can do the most immediate good by relaxing barriers to entry for refugees. Doing so may not curb Islamophobia in the United States, but at least will prevent more senseless deaths like Aylan Kurdis.

[1] Helena Smith, Aylan Kurdi: Friends and Family Fill in Gaps Behind Harrowing Images, The Guardian (Sept. 3, 2015), http://www.theguardian.com/world/2015/sep/03/refugee-crisis-friends-and-family-fill-in-gaps-behind-harrowing-images

[2] Zack Beauchamp, The Syrian Refugee Crisis, Explained in One Map, Vox Magazine, (Sept. 27, 2015), http://www.vox.com/2015/9/27/9394959/syria-refugee-map

[3] Id.

[4] Somini Sengupta, Migrant or Refugee? There is a Difference, with Legal Implications, The New York Times (Aug. 27, 2015), http://www.nytimes.com/2015/08/28/world/migrants-refugees-europe-syria.html?action=click&contentCollection=Middle%20East&module=RelatedCoverage&region=Marginalia&pgtype=article

[5] Id.

[6] Gardiner Harris, David Herszenhorn, and David E. Sanger, Obama Increases Number of Syrian Refugees for U.S. Resettlement, The New York Times, (Sept. 10, 2015), http://www.nytimes.com/2015/09/11/world/middleeast/obama-directs-administration-to-accept-10000-syrian-refugees.html

[7] Sengupta supra note 4.

[8] Harris, Herszenhorn, and Sanger supra note 6 at 1.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Haroon Moghul, Stand with Ahmed Against Islamophobia, Cnn, (Sept. 16, 2015), http://www.cnn.com/2015/09/16/opinions/moghul-islamophobia-america/

[14] Nick Gass, Ben Carson: America’s President Can’t Be Muslim, politico (Sept. 20, 2015), http://www.politico.com/story/2015/09/ben-carson-muslim-president-213851

[15] Id.

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