Ending the Cuban Embargo: Trading the Light of Freedom by Kelly Burke

Ending the Cuban Embargo: Trading the Light of Freedom

by Kelly Burke

In 1959, Fidel Castro seized power in Cuba and proceeded to impose a harsh dictatorial rule.[1] By 1960 the Castro government taxed American imports so heavily that exports were halved and expanded trade with the Soviet Union.[2] On February 7, 1962 President Kennedy started the Cuban Embargo, which disallowed all trade with Cuba, except for medicine and food supplies.[3] The U.S. later strengthened its embargo rules with the Helms-Burton Act in response to the Castro government shooting down a civilian planes, applying the embargo to other foreign countries that still traded with Cuba.[4] The Helms-Burton Act specified strict conditions that the Castro regime must follow in order for the embargo to be lifted stating that Cuba must legalize all political activity, transition to a representative democracy, release political prisoners, recognize international human rights, confer freedom to the press, and allow labor unions.[5] Then in 2001 the U.S. allowed the sale of more food to Cuba after Cuba was hit by a devastating hurricane and the sale of food is still allowed today.[6] Recently the U.S. has entered into with Cuba to relax the embargo and allow more trade with the country.[7] The relaxation of the embargo is a decision that would sacrifice the incentive for Cuba to relax its tyrannical rule and even increase the power that the Castro government holds over Cuba.

The U.S. was correct in imposing the Cuban Embargo fifty years ago and should continue its resolve in enforcing the embargo. By lifting the embargo the U.S. would be putting money directly into the pocket of an oppressive government, it disincentives any action on the part of the Cuban government to provide their citizens with basic civil rights, and may solidify the Castro regime in a time of possible leadership change. Ending or relaxing the embargo could create more strife in Cuba and risks giving greater power to a tyrannical government.

To start with, ending the embargo will subsequently end any incentive the Castro regime would have towards improving human rights. According to the Congressional Research Service there are about 65,000 to 70,000 people incarcerated in Cuban prisons as of May 2012, making Cuba among the highest on a per capita basis in the world.[8] Many are detained for political reasons, including opposing the Castro regime and speaking out for better treatment of Cuban citizens.[9] Without the embargo encouraging Cuba to release its political prisoners, Cuba will have no reason to set free those people that have done nothing wrong except encourage freedom in their country. The embargo remains a pressure point for the U.S. to push, motivating the Cuban government to reexamine its oppressive policies and without it the Cuban government will have no motivation to recognize the basic civil rights of their people.

The next issue is that lifting the embargo will not benefit privately held businesses in Cuba and will instead put money into the Cuban government’s pockets. The Cuban government owns about 90% of the economy, making the Castro regime the beneficiaries of any trade that comes out of lifting the embargo.[10] All foreign companies in Cuba must pay wages in hard currency directly to the Cuban government which is then converted to Pesos and given to Cuban workers at a decreased value of about 4.2%.[11] This means that when a foreign firm that pays 500 U.S. dollars to the Cuban government, the government pockets about $479 and gives the worker 500 Pesos or about $21 a week.[12] From these numbers it is clear to see that opening up trade with Cuba will not benefit the payment of wage earners in Cuba at all, the workers will only get a miniscule percentage of the wages that are rightfully theirs and instead the U.S. would directly be funding the tyrannical regime that they have tried so hard to remove from power.

Finally, with all that cash lining their pockets from U.S. businesses, the current Cuban government will be more able to resist any type of political change. Both Castro brothers are nearing the end of their natural lives, and their old ages could mean significant political change towards a more democratic government. However, the U.S. putting significant amounts of money into the Castro regime from prematurely ending the embargo could spoil the chance at this transition. The current Cuban government will take advantage of the new trade entering into the country in order to solidify its control over the nation and keeping most of the profit from foreign trade in its control. The government will have more money at its disposal than what it has ever had before; creating a more powerful beast that is harder to bring down.

Lifting the embargo is likely to cause more harm than good to Cuban civil rights. Cuba has not changed it stance on human rights despite ongoing trade with other free countries like Canada, the Netherlands, and Spain.[13] One of the main argument of those that are in favor of lifting the embargo is that the influence of a free country like the U.S. could encourage more change than keeping to the no trade policy. However, other free countries have been trading with Cuba and no fortuitous change has been produced from their trade. It is clear then, that ending the embargo and hoping that it may do some good comes at the risk of the Cuban people becoming more oppressed. Lifting the embargo would create the appearance of the U.S. supporting Castro’s anti-humanitarian ideals and could lead to greater political strife in the country. In an interview, Sen. Marco Rubio, the son of Cuban immigrants defended his stance on keeping the embargo in place, stating, “That’s what they say. It is a relic of the Cold War, but our policy is not the relic. The relic is the Cuban government, that’s the relic. The relic is tyranny. The relic is communism.”[14] The U.S. remains a guiding light to freedom for Cuban citizens working for democracy and it is a light that will only dim if the U.S. decided to lift the embargo.

[1] Claire Suddath, U.S.-Cuba Relations Time, Inc. (Apr. 15, 2009), http://content.time.com/time/nation/article/0,8599,1891359,00.html.

[2] Id.

[3] Id.

[4] Id.

[5] Cuban Liberty & Democratic Solidarity Act of 1996, 22 U.S.C.A. §§ 6021-91 (1996)

[6] Suddath, supra note1.

[7] Id.

[8] Mark P. Sullivan, Cuba: Issues for the 112th Congress, Congressional Research Service, (Nov. 6, 2012), http://fpc.state.gov/documents/organization/171377.pdf.

[9]  See Id.

[10] Crown. (May 2014) https://www.gov.uk/government/publications/exporting-to-cuba/exporting-to-cuba.

[11]  Richard E. Feinberg, The New Cuban Economy: What Roles for Foreign Investment, The Brooking Inst. (Dec. 2012), http://www.brookings.edu/research/papers/2012/12/cuba-economy-feinberg.

[12] See Id.

[13] Highbeam Research, Inc. http://www.encyclopedia.com/topic/Cuba.aspx.

[14] Jordan Fabian, Marco Rubio Rips U.S.-Cuba Travel: “Cuba is not a Zoo,” ABC News Internet Ventures, (Mar. 12, 2013), http://abcnews.go.com/ABC_Univision/Politics/marco-rubio-rips-us-cuba-travel-cuba-zoo/story?id=18712801.

The Limits of Police-worn Body Cameras: Why Citizen Journalism is Essential to Deterrence of Excessive Force by Brad Hargett

The Limits of Police-worn Body Cameras: Why Citizen Journalism is Essential to Deterrence of Excessive Force

by Brad Hargett

Recent outrage against police abuses throughout the nation have raised significant concerns regarding police oversight. Some have argued that requiring police officers to wear body cameras while on duty will deter egregious abuses.[1] Others have argued that there is no rise in the rate of police abuses.[2] Rather we are simply more aware of the abuse because of the proliferation of video recording technology.[3] In an age where traffic cams and closed circuit surveillance have become powerful tools for Big Brother should police officers expect anything less than surveillance by Little Brother, the ordinary citizen?

Although there are numerous advantages of body cameras for monitoring police practices this technology is no panacea. First, the considerable expense of outfitting police jurisdictions in order to protect “criminals” may be politically impractical. Second, any technology controlled by an individual police officer who may be prone to excessive force is likely prone to “malfunctions” and “user error.” Finally, the data collected from these body cameras is unlikely to ever see the light of day if simply warehoused in police department servers.

First, body cameras are prohibitively expensive to be utilized in police departments across the nation. The departments most able to afford the devices will be in thriving urban areas such as New York, Los Angeles, and Chicago. What about Detroit, Gordo, or Fort Collins? Police abuse is still likely to occur in those jurisdictions and yet body cameras will likely not be available due to tight budgets.[4] Practically speaking, it will be politically difficult to convince a large segment of the public that taxpayer funds should be used to protect “criminals” from police abuses.

Second, body cameras are susceptible to tampering by police. What is to stop a police officer from simply turning off his body camera before engaging a suspect and then claiming a malfunction when that video is needed? Take the case of Armand Bennet who was shot in the head by a New Orleans police officer.[5] The officer reportedly turned off her body camera minutes before shooting Bennet.[6] Unless body cameras incorporate anti-tampering technology then the individual officers who are prone to excessive force will not be deterred by a device they can simply turn off at will.

Finally, the footage of body cameras is only a deterrent if it is seen. Perhaps Professor Haberfeld is correct in her assertion that incidences of police brutality are not necessarily more frequent but simply more visible as technology has progressed.[7] Assuming that is the case, it begs the question: where was the outrage over police abuse before the proliferation of video recording technology? My concern is that if we rely on police body cameras to record these instances of police abuse the footage may never see the light of day. What police department would willingly open itself to liability and public outrage by allowing unfettered access to body camera footage? It is much more likely that body camera footage will simply be warehoused on servers tightly controlled by the police department. In fact, the recent Department of Justice report on body camera policies notes that “[i]n most state public disclosure laws, exceptions are outlined that may exempt body-worn camera footage from public release.”[8] The report continues with the recognition that “even the broadest disclosure laws typically contain an exception for video that contains evidence or is part of an ongoing investigation.”[9] Thus, in many instances, body camera footage will be insulated from public oversight.

Consequently, citizen journalism provides the best alternative to police body cameras. First, citizen journalism is essentially free compared to the considerable expense of outfitting police officers with body cameras. Second, citizen journalism is less susceptible to police tampering. Finally, citizen journalism forces police departments and the public at large to bear witness to and critically examine the issue of police brutality.

First, the proliferation of cell phone cameras over the past decade has empowered ordinary citizens to document everything from the mundane to the immensely profound. Whereas some people use the technology to post ridiculous videos attempting to defend their favorite pop star from criticism[10] others have used the technology to record confrontations with police during peaceful protests.[11] The reality is that in 2015 the technology is so prevalent that nearly anyone can record the police.[12] As such, an active and engaged citizenry’s ability to record and publish instances of police abuse should have the same deterrent value as a body camera with none of the cost to taxpayers.

Second, whereas police may disable their own body cameras with the push of a button it is much more difficult to stop an entire crowd of citizen journalists from filming a man being choked to death on the sidewalk. However, my colleague brings ups an important drawback in that body cameras, if tamper-proof, record the entire transaction including the events leading up to the use of force. Citizen journalism is generally limited to filming the actual use of force leaving open to interpretation whether that force was reasonable under the circumstances. However, in many circumstances the videos may capture evidence that the force utilized by an officer clearly exceeded any justification for the initial engagement.[13]

Finally, the public availability of this footage is essential. As a society, we all have a vested interest in justice and ensuring that the civil rights of all people are protected from governmental abuses. Whereas body camera footage is likely to be locked away in a police department server, only to be recovered by diligent filing of FOIA requests, citizen journalists often quickly post their footage to the web via youtube, facebook, twitter, and other social media outlets.[14] As Justice Louis Brandeis once wrote that “sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”[15] A police officer knowing that “the whole world is watching” may stop the swinging of a nightstick, the initiation of an illegal chokehold, or the drawing of a gun. The knowledge that Little Brother is watching and sharing with the rest of the family surely must change the culture of violence seen in too many police departments over the past several months.

As my colleague correctly notes, body cameras and citizen journalism are not mutually exclusive. My point is not that body cameras should necessarily be abandoned. In fact, if body camera policies addressed the concerns noted above perhaps there would be less need for citizen journalism. However, as it stands, citizen journalism remains the most cost effective, reliable, and publicly available source of information to deter excessive force. As such, citizen journalism should be the preferred method of challenging, publicizing, and addressing police abuse.

[1] Carrie Dann, Obama Requests $263 Million for Police Body Cameras, Training, NBC NEWS (Dec. 1, 2014), http://www.nbcnews.com/politics/first-read/obama-requests-263-million-police-body-cameras-training-n259161.

[2] Warner Todd Huston, Expert: No Rise in Use of Deadly Force by Police; Just More Cell Phones Breitbart.com (August 13, 2014), http://www.breitbart.com/big-government/2014/08/13/expert-there-is-no-rise-in-use-of-deadly-force-by-police-just-more-cell-phones/

[3] Id.

[4] Dann, supra note 1. President Obama’s proposal provides federal matching funds for state and local police agencies but if there’s no room in the budget there will be nothing to match.

[5] Jonathan Turley, New Orleans Police Officer Turns Off Body Camera Minutes Before Shooting Suspect in Forehead JonathonTurley.org (Aug. 19, 2014), http://jonathanturley.org/2014/08/19/new-orleans-police-officer-turns-off-body-camera-minutes-before-shooting-suspect-in-forehead/

[6] Id.

[7] Huston, supra note 2.

[8] Lindsay Miller & Jessica Toliver, Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned 17 (Office of Community Oriented Policing, 2014), available at http://www.justice.gov/iso/opa/resources/472014912134715246869.pdf

[9] Id.

[10] ItsChrisCrocker, Leave Britney Alone!, YouTube (Sep. 10, 2007), http://youtu.be/kHmvkRoEowc

[11] Katie Falkenberg, Occupy Wall Street – Police Aggression, YouTube (Sep. 25, 2011), http://youtu.be/4jJyUCK0OhE

[12] Laura Ly, Can Cell Phones Stop Police Brutality? CNN.com (Nov. 19, 2014), http://www.cnn.com/2014/11/18/us/police-cell-phone-videos/

[13] Conor Friedersdorf, Eric Garner and the NYPD’s History of Deadly Chokeholds The Atlantic (Dec. 4, 2014), http://www.theatlantic.com/national/archive/2014/12/context-for-the-punishment-free-killing-of-eric-garner/383413/ (noting that the use of chokeholds is against NYPD policy, i.e. per se unreasonable under any circumstances)

[14] Jayson DeMers, How Social Media is Supporting a Fundamental Shift in Journalism The Huffington Post (May 8, 2013), http://www.huffingtonpost.com/jayson-demers/how-social-media-is-suppo_b_3239076.html

[15] Louis D. Brandeis, Other People’s Money: And How The Bankers Use It 92 (Frederick A. Stokes Company Publishers, 1st ed. 1914).

Seeing Isn’t Always Believing by Joe Davis

Seeing Isn’t Always Believing

by Joe Davis

Introduction

Recently, the use of body cameras by our nation’s police officers has been a topic of spirited discussion; and for good reason.  The year 2014 saw numerous examples of video footage that depicted law enforcement officers “behaving badly,”[1] and many members of the public were outraged.[2]  In other circumstances, we heard stories of police brutality,[3] but lacked the video evidence to either corroborate or dismiss the eye-witness accounts of such events. While many mourned, others were left unsure how to feel, and battle lines were drawn.  In the wake of the shooting death of Michael Brown in Ferguson, MO, President Obama has called for $263 million of funding, which would go towards the purchase of 50,000 body cameras for use by police officers in precincts throughout the United States.[4]  But is this a wise decision by the president, or a knee-jerk reaction aimed at garnering public approval in the midst of tragedy?  The truth is, there are very few precincts that have implemented the use of body cameras,[5]and where they have, studies done on the effectiveness of the devices, while generally positive, are few and far between.[6] Even absent sufficient statistics, however, the conclusion that body cameras have the ability to effect positive change in police/civilian relations can be reached based on intuition alone.

Discussion

Police Accountability

Wearing a badge in this country comes with increasing amounts of authority.  With that authority should come increased responsibility and accountability, both of which are provided by wearing a body camera.  Logic tells us that when an officer knows his actions are being recorded and are subject to review, he will be more likely to act within the realm of his actual authority, as defined by police protocol and the 4th amendment to the United States Constitution.[7]  My colleague will contend that the deterrent effect of body cameras is already being accomplished by an increase in recording of police activities by ordinary citizens on their cell phones.[8] However, it seems clear that vigilante oversight falls short of police-worn cameras for numerous reasons.  First, when a police officer wears a camera, he is constantly aware that his actions are being scrutinized, as the reminder is strapped to his body.  When a citizen records an officer, unless said citizen makes their presence known, the officer has less of a reason to believe that he is being held accountable, rendering any deterrent effect null and void.[9] In the instance that a citizen-recorder does make their presence known, the officer will surely be able to inhibit the citizen’s oversight.[10] It is not uncommon for the bystander recording an arrest on their cell phone to become subject to arrest themselves.[11] While it has been established that recording a police officer in public “is a form of speech” protected by the First Amendment, there have been many exceptions carved out of that right which allow an officer to interfere.[12] For example, a policy paper produced by the International Association of Chiefs of Police (IACP) places a number of restrictions on those who would film an officer, including being unreasonably close, positioning themselves in a way that impedes an officer, and distracting or “unduly hindering” an officer’s activities with questions.[13] The broad language of these guidelines would allow an officer to “shut down” a person recording their activities in almost any situation imaginable.  In sum, civilian cell phone recordings are inadequate in many situations because they do not deter if they go undetected, and if detected, they are easily eliminated.[14]

Civil Liability

The possibility of incurring civil liability for their actions is another deterrent to police misbehavior.[15]            Police-worn body cameras provide multiple benefits in this context, and are once again superior to recordings made by the average citizen.  First, where a body camera would ideally capture an officer’s entire encounter with the subject of an arrest,[16] it is often the case that recordings done by civilians do not begin until a possible violation, such as the use of excessive force, has already begun.  Imagine the ensuing civil trial.  If the plaintiff were able to enter into evidence a recording of the full encounter shot by a police body camera, the jury could see the event and dole out justice accordingly.  If the plaintiff had only a partial recording of the event provided by a cell phone-wielding passerby, the door would be open for the defense to claim that their client’s actions were warranted based on events that occurred before the recording began.  This creates a situation in which law enforcement’s word is pitted against the plaintiff’s, which, historically, has not worked in favor of those bringing civil actions against police officers.

Cell phone videos in the context of civil cases against the police raise additional concerns.  For example, when a body camera worn by an officer records an image, it is generally uploaded onto a secure database that is in the control of either the precinct itself, or a private entity employed by the police to handle such data.[17] This is important for multiple reasons.  Practically, it means that the footage is readily available when the time comes for a trial.  Both the plaintiff and the defendant know where/how to acquire the video.  Furthermore, in evidentiary terms, the data stored in a secure database is reliable and more easily admitted at trial.  The proponent of the evidence must simply show the “chain of custody” of the footage (essentially that the data was protected from tampering from the time it was recorded to the time it was brought to trial), and it will be admitted, barring additional evidentiary issues.  A civilian’s cell phone video does not share these practical and evidentiary benefits.  For one, a plaintiff may have to rely on the person who recorded the encounter (who they may or may not know personally) to come forward with the video.  On the other hand, if the video is readily accessible after the recorder uploads it to a social media account or other medium such as “YouTube” (as seems to be the popular course of action), the footage’s reliability as evidence becomes suspect.  Proving that the video is being presented in its original form, free from tampering, may be extremely difficult for a plaintiff.[18]

Conclusion

The purpose of this article is not to discourage individual civilians from recording actions of police officers that they suspect violate the rights of their fellow citizens.  This kind of activity, as it becomes more widespread, is an excellent way to put law enforcement on notice that while they are appreciated, they are also subject to necessary levels of scrutiny by an informed public.  Instead, the contention of this article is that cell phone videos should merely supplement, and not supplant, body cameras worn by police.

 

[1] The use of this phrase is not meant to trivialize the matter; for in fact, “behaving badly” in these terms usually means the violation of the rights we as Americans hold most dear, (i.e. the right to privacy, freedom of unwarranted harassment by the government, etc.) and that have been promised to us by the Constitution of the United States.

[2] See, e.g., Optrex, APD HelmetCam Footage of Shooting a Homeless Camper, YOUTUBE (Mar. 24, 2014), https://www.youtube.com/watch?v=4TVRa8eAuBw.

[3] See Shooting of Michael Brown, WIKIPEDIA, http://en.wikipedia.org/wiki/Shooting_of_Michael_Brown (last visited Jan. 24, 2015) (outlining the shooting death of Michael Brown, in which the shooter, police officer Darren Wilson, was not indicted).

[4] This plan, if approved by Congress, would provide “…$75 million over three years to match state funding for cameras by 50 percent…” See Carrie Dann, Obama Requests $263 Million for Police Body Cameras, Training, NBC NEWS (Dec. 1, 2014), http://www.nbcnews.com/politics/first-read/obama-requests-263-million-police-body-cameras-training-n259161.

[5] Although, it is becoming increasingly popular as cities around the nation plan to launch “trial runs” of the use of body cameras.  See, e.g., Tina Susman, New York City Police Officers to Wear Body Cameras in Pilot Program, LA TIMES (Dec. 3, 2014), http://www.latimes.com/nation/nationnow/la-na-ny-police-cameras-20141203-story.html.

[6] See Megan Cassidy, Phoenix Police: Body Cameras Beneficial but Costly, THE REPUBLIC (Jan. 22, 2015), http://www.azcentral.com/story/news/local/phoenix/2015/01/21/phoenix-police-body-cameras-beneficial-costly/22142475/.

[7] U.S. CONST. amend IV (protecting citizens from unreasonable searches and seizures by the government).

[8] Fellow junior editor, Brad Hargett, has written a related article in which he outlines the deterrent effect of cell phone recordings on police misbehavior, and how it has diminished the need for body-worn cameras.

[9] While this argument loses some validity due to the prevalence of everyday smart phone use with recording capabilities, it still stands to reason that in the heat of the moment a cop will forget about the possibility of the passerby filming him more easily than he will forget the mandated part of his uniform that records his every move.

[10] Bill Briggs, Can the Cops Cuff You for Filming an Arrest?, NBC NEWS (Jul. 23, 2014), http://www.nbcnews.com/tech/gadgets/can-cops-cuff-you-filming-arrest-n162351.

[11] Id.

[12] Id.

[13] Id.

[14] For practical application of this argument, one can look to an incident that unfolded just last year on Staten Island, where members of the NYPD used a chokehold during the arrest of a man suspected of illegally selling cigarettes.  The man, Eric Garner, later died of injuries sustained during the arrest.  While the encounter was filmed by a bystander, no officers involved in the confrontation were indicted for their actions; see David Goodman, Wave of Protests After Grand Jury Doesn’t Indict Officer in Eric Garner Chokehold Case, THE NEW YORK TIMES (Dec. 3, 2014), http://www.nbcnews.com/tech/gadgets/can-cops-cuff-you-filming-arrest-n162351.

[15] For example, citizens are able to bring a civil action against a state actor under 42 U.S.C. §1983 when they feel that they have been deprived of their Constitutional rights by said state actor.

[16] While this is not always the case, there are safeguards in place to ensure that it happens.  See Kashmir Hill, A Future In Which Every Police Officer Wears a Body Cam Isn’t Entirely Rosy, FORBES (Nov. 5, 2014), http://www.forbes.com/sites/kashmirhill/2014/11/05/a-future-in-which-every-police-officer-wears-a-body-cam-isnt-entirely-rosy/ (providing an example of two Daytona Beach officers who lost their jobs after a forensic analyst found that they had manually turned off their cameras during the arrest of an alleged drug user).

[17] See generally, Michael D. White, Police Officer Body-Worn Cameras: Assessing the Evidence, OFFICE OF JUSTICE PROGRAMS (2014), https://ojpdiagnosticcenter.org/sites/default/files/spotlight/download/Police%20Officer%20Body-Worn%20Cameras.pdf.

[18] Especially in this day and age, where doctoring video/photographs is as easy as downloading software onto your personal computer.

Unrestrained Executive Power: Why Recent Action on Immigration Goes Too Far By: Justin Clark

Unrestrained Executive Power: Why Recent Action on Immigration Goes Too Far                     By: Justin Clark

There is no doubt that the need for comprehensive immigration reform from Washington has been overdue for several decades.  The current scheme has left millions of people living in the shadows with the constant fear of being deported.  The decades of inaction on this issue coupled with the increased level of gridlock in Washington have made the prospect of real immigration reform seem like a faint possibility.  Supporters of President Obama’s unprecedented executive action have pointed to the new policy as a fair and reasonable move that removes the constant threat of deportation facing millions of undocumented workers.[1]

However, there is more profound concern that I think has gotten glossed over by political rhetoric: the increasing growth of unrestrained executive power.  Does a president have the legal authority to make such a far-reaching move on immigration? Whether or not a president can do it, should a president have such authority to take unilateral action without the consent of Congress?  What must Washington do to prevent one branch from grabbing too much power?

Can President Obama legally take executive action on this issue?

Maybe; it is debatable at best.  President Obama relies on his executive authority in the Constitution[2] to grant, what critics call “amnesty,”[3] and work permits to millions of illegal immigrants.  In the past, presidents have granted work permits to a specific and small group of people, such as those facing a natural disaster and are unable to return home.[4] President Obama’s plan will affect a much larger population and will represent a major shift in policy.  Thus, the current executive action is much broader in scope than what other presidents have taken in the past.  While it is true that the president must have some power to act in situations where Congress cannot act, the line must be drawn somewhere.  If not, critics say, then the President could effectively grant immunity to not just half of the illegal immigrant population[5] (as it already does), but to “99.9%” of all illegal immigrants in the United States.[6]  While presidents from both parties have taken action on immigration in the past, the legality of this action is open to question given its broad scope and character.

Is unilateral, executive action a good way to ease the political gridlock in Washington? 

Not really.  While a president’s power struggle with Congress (especially one controlled by the other party) can be frustrating by nature, it is a rather weak policy reason for President Obama to sidestep the legislative process altogether on this issue.  Mark W. Davis, a speechwriter in the White House of President George H.W. Bush, wrote an article about that president’s political interaction with Democratic Senate Majority Leader George Mitchell.[7]  Senator Mitchell’s plan was to block any domestic reform that President Bush wanted.[8]  So, according to Davis, presidential advisors came up with an “aggressive” plan, through which the president would withhold congressionally appropriated funds to balance out the political power in Congress.[9]  But President Bush never went through with it.[10]  The action that President Obama has taken goes further than what President Bush had planned to do; it is a major policy decision not to prosecute millions of illegal immigrants.[11]  Given such a massive and aggressive American policy shift on the issue of immigration, the President should get consent from Congress first.

Moreover, the timing of President Obama’s action is problematic, as it comes just months after the midterm elections.[12]  Issues with reforming immigration and border security in this country have persisted for decades.  If this issue is so important, why take this action just last November?  Why not try to pass immigration reform when the Democrats controlled both houses of Congress?

Need For Cooperation in Washington is Necessary to Prevent Abuse of Power

While the substantive policies of President Obama’s executive order may or may not be desirable, those policies must involve congressional input and debate.  I am not suggesting that Republicans (and even some Democrats) have been enthused about working with President Obama on much of anything since he took the oath of office.  Just look to the passage and continued fight over the Affordable Care Act.[13]  Rather, what I am saying is that there needs to be a better way for the Executive and Legislative branches to govern together.  It is true that what President Obama might very well have accomplished with his action is to grease the wheels of political cooperation on Capitol Hill.  This, in turn, might (just possibly) push a Republican-controlled Congress to pass an eventual piece of legislation on immigration.

But on the other side of the coin, there is a not-so-positive outcome.

By effectively legalizing the presence of millions of illegal immigrants in the United States, President Obama’s action may be viewed by the incoming Congress as a political “slap in the face”[14] or “blackmail”[15] to force it to do what the president wants.  This may ignite further opposition and ruin any opportunity to get anything done on immigration or any other significant issue in the next two years.

The notion of governance by executive fiat over major federal policy decisions affecting the lives of millions—without any public debate among members of Congress—should be stamped out before it becomes the norm.  One solution might simply come from a renewed concept of cooperative, democratic governance—where members of Congress from one party actually talk with members from the other, and where congressional leaders decide to meet with the president and discuss candidly the important issues with the goal of compromise in mind.

Conclusion

Whatever the solution will be to immigration (and the political gridlock in general), it will have to come from President Obama and Congress working together, and not by unilateral action by one branch of government.

[1]Klein, Ezra, The Best Arguments For, and Against, Obama’s Executive Action on Immigration, N.Y. Times (Nov. 20, 2014), http://www.vox.com/2014/11/20/7253779/obama-immigration-plan-facts.

[2] See U.S. Const. Art. II.

[3] Douhart, Ross, The Great Immigration Betrayal, N. Y. Times, http://www.nytimes.com/2014/11/16/opinion/sunday/ross-douthat-the-great-immigration-betrayal.html?_r=0 (Nov. 15, 2014).

[4] Id.

[5] See Lind, Dara, Everything You Need to Know About Obama’s Action on Immigration (Card 2 of 13) (Dec. 2, 2014), Vox.com, http://www.vox.com/cards/obama-immigration-executive-action-amnesty-congress/obama-executive-immigration-reform-million-immigrants-how-many

[6] Douhart, supra note 3.

[7] Davis, Mark W., Obama’s Immigration Power Grab Will Backfire. U.S. News and World Report (Nov. 19 2014), http://www.usnews.com/opinion/blogs/mark-davis/2014/11/19/obamas-executive-order-power-grab-on-immigration-will-backfire.

[8]  Id.

[9]  Id.

[10] Id.

[11] Id.

[12] Klein, supra note 1.

[13] Parker, Ashley, House G.O.P. Files Lawsuit in Battling Health Law. N.Y. Times (Nov. 21, 2014), http://www.nytimes.com/2014/11/22/us/politics/obamacare-lawsuit-filed-by-republicans.html.

[14] Davis, supra note 7.

[15] Douhart, supra note 3.

President Obama’s Executive Action on Immigration: The Right Move, At the Right Time By Kevin D. Finley

President Obama’s Executive Action on Immigration: The Right Move, At the Right Time

By Kevin D. Finley

In November 2014, President Obama took much needed executive action on immigration reform.  He created a new deferred action program that will provide temporary administrative relief and work permits to undocumented immigrants who pass a background check, have lived in the United States for a minimum of five years, and have a child who is a U.S. citizen or legal permanent resident.[1]  As a result, law-abiding immigrants with strong ties to the United States, and who satisfy the application qualifications, will no longer live under the threat of deportation.[2]  The President’s action serves as a tremendous win for the immigrant community and immigration reform advocates.  Most importantly, although this is not a permanent solution, it paves the way for a broader immigration reform when Congress finally decides to act.

The President’s executive action has been met with fierce backlash from Republican congressional members, which is hardly surprising given today’s highly divisive political climate.  Republicans, and Obama antagonist alike, have called into question the President’s authority to create such a policy, and argued that his latest action constitutes an unconstitutional expansion of executive power.  However, I argue that President Obama has not only acted in accordance with his constitutional authority, but has also taken a positive step in the right direction to address an increasingly harsh and dysfunctional immigration system, which destabilizes families and undermines the nation’s economic and security interests.

  1. The President has the legal authority to act.

The United States Constitution provides that it is the role of Congress to make the laws, and the role of the president is to enforce the laws of this country.[3] However, when Congress routinely fails to draft legislation to address critical issues—which it has done over the past 10 years by blocking immigration reform—the president is not mandated to remain idle while the nation suffers.  President Obama realizes that only Congress can provide a permanent solution to fix our broken immigration system.  But rather than allowing the system to further deteriorate, he has initiated action that is completely within his legal authority to make the system more rational, efficient and humane.[4]

President Obama’s executive action is rooted in historical precedent—similar policies have been adopted 39 times by 11 presidents over 60 years[5]—it is also an intelligent enforcement policy.[6]  Presidents from both the Democratic and Republican parties have taken executive actions on immigration over the past decades.  What the Obama administration has done is no different than when former President Reagan allowed children of unauthorized immigrants to stay in the country in 1986 after the legalization program under the Immigration Reform and Control Act of 1986.  And it is similar in scope and context to former President George H.W. Bush’s Family Fairness policy of 1990, which allowed up to 1.5 million spouses and children of those legalized under the 1986 act to stay in the country.[7]

Every law enforcement agency in this country makes daily decisions on which areas to focus their resources.  In the immigration context, a decision to focus on those who have criminal offenses, such as finding and deporting serious criminals and national security threats instead of separating families, is completely consistent with executive authority.[8]  That is what this policy is about: prioritization and the constitutionally grounded principle of prosecutorial discretion.[9]  Moreover, 136 immigration law scholars published a letter earlier in 2014 arguing that President Obama has broad legal authority to “protect individuals or groups from deportation” and that the Constitution backs this authority.[10]

Under the announced Department of Homeland Security directive, each and every low-priority immigrant who applies for deferred action has to register with the government, pass a background check and pay a fee. Having these immigrants register means that the government will know who is here to contribute and will be able to more readily identify who is here to do us harm, thereby enhancing our national security.[11]

  1. The policy is sensible and humane.

Columnist Paul Krugman framed the President’s initiative perfectly: “a simple matter of human decency.”[12]  Most people would agree that we shouldn’t be using taxpayer resources to tear apart families when those resources should be directed at identifying and removing serious criminals.  Additionally, no one believes that we can, or should, try to round up and deport the 11 million undocumented immigrants who currently live in the U.S.  Many of them work, raise families, start businesses, contribute to their communities—and live under constant, unrelenting fear of deportation.  To be clear, it is not U.S. policy to deport all these people.  Rather, Congress only provides the money to deport around 400,000 unauthorized immigrants each year.[13]  It does not require a mathematician to find that 400,000 is not 11 million.  Choices must be made.  And Congress gave the President the power to make those choices.[14]  What is needed is a real comprehensive solution, but with nothing currently in play from Congress, the path forward is obvious: the U.S. government should focus resources, release clear guidance on who law enforcement agencies should target, and inform the immigrants who are not a deportation priority that they can relax, find legal jobs, and live their lives—at least for now.[15]

In addition, by allowing immigrants to work legally means that they can no longer be marginalized and exploited by unscrupulous employers.[16]  Their wages will increase and both they and their employers will be required to pay their full share of taxes.[17]  In turn, benefitting all Americans.

III. Executive action will bring economic benefits to states and the nation and give immigrants the opportunity to take care of themselves.

The Center for American Progress has demonstrated in economic research that the benefits of executive action are clear-cut: Nationally, there will be an increase in payroll taxes of $22.6 billion over five years.[18]  States will also see significant benefits: Colorado, for example, will see a $165 million increase in tax revenues over five years, and Nevada will see an $18 million increase in tax revenues over five years.[19]  Equally important, lifting the threat of deportation and providing work permits to those who qualify will unleash the potential for immigrants to access better jobs and opportunities.[20]  In the long run, this will mean immigrants are better able to take care of themselves and their families.[21]

  1. Congress is broken, and that means the President must do more.

Regardless of political affiliation, most would agree that Congress is increasingly dysfunctional and paralyzed—and is likely to remain that way for some time. This begs the question: is it helpful or harmful for the President to respond to a structural decrease in congressional action with a structural increase in executive action?[22]  Some scholars believe this is one way the system can adjust to gridlock: if Congress does less, the executive will have to do more.[23]  With more executive action, Congress will want to regain their role as the engine of federal action. Likely, this is what president Obama wants.  He has continually called on Congress to preempt his action on immigration by passing a law of its own and it has yet to happen.[24] Unfortunately, this President has faced an unprecedented level of opposition from congressional members for reasons that go beyond the scope of immigration policy. Thus, he has been forced to exercise his executive authority.

Conclusion

Opposition to this common sense administrative action is about politics, not policy or legality.[25]  This is no substitute for legislation.  Only Congress can provide a permanent solution to our nation’s immigration problems, but in the meantime the President has taken an important, necessary and unequivocally legal first step.  President Obama’s executive action is only meant to be a temporary fix, since it does not provide permanent status and can be undone with the stroke of his pen.  But it will set the table for a broader immigration reform because it will bring millions of people out of the shadows and into the legal system as they are vetted during the application process.[26]  The ball is in Congress’ court now, and it remains to be seen if the Republican majority can govern in an inclusive way or whether it will continue obstructing any kind of progress on this issue.[27]

[1] Vanessa Cardenas, 5 Facts to Know About President Obama’s Immigration Announcement, CENTER FOR AMERICAN PROGRESS, (Nov. 21, 2014), https://www.americanprogress.org/issues/immigration/news/2014/11/21/101984/5-facts-to-know-about-president-obamas-immigration-announcement/.

[2] Id.

[3] U.S. CONST art. I § 1; art. II § 3.

[4] Marshall Fitz, Obama is Just Doing His Job, DEBATE CLUB, (Nov. 21, 2014, 11:00 AM), http://www.usnews.com/debate-club/is-obamas-immigration-executive-order-legal/obama-is-just-doing-his-job.

[5]American Immigration Council, Executive Grants of Temporary Immigration of Relief, 1956-Present, Oct. 2014,

http://www.immigrationpolicy.org/sites/default/files/docs/executive_grants_of_temporary_immigration_relief_1956-present_final_4.pdf.

[6] Fitz supra note 4.

[7] Id.

[8] Cardenas supra note 1.

[9] Fitz supra note 4.

[10] Shoba Sibasprahad Wadhia, Executive Authority to Protect Individuals or Groups From Deportation, (Sep. 3, 2014), https://pennstatelaw.psu.edu/_file/Law-Professor-Letter.pdf.

[11] Fitz supra note 4.

[12] Janet Allon, Paul Krugman Destroys All Arguments Against Obama’s Immigration Action, ALTERNET, (Nov. 21, 2014 ), http://www.alternet.org/economy/paul-krugman-destroys-all-arguments-against-obamas-immigration-action.

[13] Ezra Klein, The best arguments for and against, Obama’s executive action on immigration, VOX, (Nov. 21, 2014, 10:50 AM), http://www.vox.com/2014/11/20/7253779/obama-immigration-plan-facts.

[14] Id.

[15] Id.

[16] Fitz supra note 4.

[17] Id.

[18] Cardenas supra note 1.

[19] Id.

[20] Id.

[21] Id.

[22] Klein supra note 13.

[23] Id.

[24] Id.

[25] Fitz supra note 4.

[26] Cardenas supra note 1.

[27] Id.

A New Year and A New Format

With the new year, the Alabama Civil Rights and Civil Liberties Law Review blog will be adopting a new format. This semester our Junior Editors have been paired into groups and have selected topics related to civil rights and civil liberties to write about. The members of each group will be presenting analysis and arguments on their topic from different perspectives. We hope that this will create lively debate on the blog and encourage readers to participate in the comments section.

The Aftermath of Fisher v. University of Texas: Where Do Colleges and Universities Go From Here? By Kevin D. Finley

The Aftermath of Fisher v. University of Texas: Where Do Colleges and Universities Go From Here?

By Kevin D. Finley

Equal access to education is one of the most pressing civil rights issues challenging our nation.[1]  To many Americans, an offer of admission from a prestigious institution is perceived as the equivalent of a “golden ticket” to a successful career and heightened social status.  However, top-tier colleges and universities have very few available seats for admitted students relative to the massive applicant pool.  Consequentially, students seeking undergraduate, graduate, and professional school degrees, engage in fierce competition for admission each year.  Since admissions decisions are based primarily on an applicant’s personal statement, standardized test scores, and grade point average, students are under immense pressure to excel throughout their academic careers to gain a competitive edge over their peers.  Therefore, it is unsurprising why the use of an applicant’s race as a “plus factor”—created by racial affirmative action policies—remains a topic of intense debate and bitter divisiveness.

Current State of the Law Governing the Use of Affirmative Action in Higher Education

The United States Supreme Court has struggled for decades over how colleges and universities may use race in admissions.[2]   The Court’s most recent ruling in Fisher v. University of Texas—anticipated by many legal scholars and higher education professionals to be the Court’s official pronouncement ending any consideration of race in admissions—was anticlimactic at best.  The Court left open the issue for the lower courts to apply its latest articulation of the strict scrutiny standard.[3]  At present, the law is this: (1) an institution of higher education may consider the race and ethnicity of applicants as a factor in admissions decisions for purposes of diversity, provided that it is not used too mechanically and that all applicants are evaluated on an individualized basis.[4]  The university must prove that means chosen to attain diversity are narrowly tailored to that goal;[5] and (2) a reviewing court is not permitted to give any deference at all to the college or university when assessing the constitutionality of an admissions program.[6]

Justice Kennedy’s opinion in Fisher affirmed that narrow tailoring does not require the “exhaustion of every conceivable race-neutral alternative.”[7]  However, the opinion clarifies that strict scrutiny does require a court to “examine with care, and not defer to a university’s serious good faith consideration of workable race-neutral alternatives.”[8]  In other words, in order to survive strict scrutiny, a reviewing court must be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.[9]  And if a non-racial approach could promote the substantial interest about as well, and at a tolerable administrative expense, then the university may not consider race.[10]  Ultimately, strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.[11]  Thus, in deciding Fisher, the Court did not overrule Grutter and declare the use of race in admissions unconstitutional.  Rather, in the words of Stanford law professor Richard T. Ford, it merely “doubled down” on the strict scrutiny standard.

Lower Courts Will Face Difficulty Applying the “New” Strict Scrutiny Standard

The difficulty in application of the law stems from the second prong.  Critics of the opinion, such as law professor Scott D. Gerber —and opponents of affirmative action policies generally—argue that if lower courts abide by the Supreme Court’s directive issued in Fisher, admissions programs across the nation will be invalidated because race is used “heavy-handedly” rather than modestly when rendering admissions decisions.[12]  If, however, lower courts continue to defer to academic institutions, the institutions will continue to dissemble and prevaricate in order to try and avoid having their “illegal programs” declared illegal.[13]  According to Gerber, this is exactly what happened recently on remand in the U.S. Court of Appeals for the Fifth Circuit in the Fisher case.[14]

The application of the law is complex, and begs the question: Can a court correctly assess whether or not the means chosen by a university to achieve diversity places too much emphasis on an individual’s race?  The answer is unclear.  And perhaps the lack of clarity surrounding this question is precisely why this issue will likely make its way back to the Supreme Court in the near future.

Where Do College and Universities Go From Here?

If the Supreme Court ultimately decides to ban the use of race from consideration entirely from the admissions process, or if more states take action and ban such practices through voter initiatives, all colleges and universities will be forced to resort solely to race-neutral alternative measures to attain diverse student populations.  Either outcome would most likely be viewed by opponents of affirmative action as a “victory” of sorts, as even such limited consideration of race currently utilized in holistic reviews of applicants, would be illegal.  As a result, colleges and universities would have to give more weight to specific admissions criteria that are sometimes close substitutes for race—that may or may not manufacture more diversity.  For example, using geographic diversity and zip codes as a way of promoting racial, ethnic, and economic diversity.[15]  Another option is to reduce reliance on standardized tests.[16]  Proponents of this idea argue high school grades are a better predictor of performance than SAT scores, and have a much less discriminatory impact against minority students.[17]

Although the prospect of race-conscious admissions policies becoming unconstitutional is unsettling among supporters, such a result should not be viewed as a complete defeat, but as an opportunity to spur Americans who care about racial inequality to seek alternatives to affirmative action.  This can be accomplished by addressing the deeply entrenched disadvantages that lower-income and minority children face from the beginning of life.[18]  To some extent, race-based affirmative action has been a woefully inadequate weapon in the arsenal against inequality.  It treats the symptoms, but not the causes of an underlying social problem.[19]  For instance, the racial and socioeconomic gap in academic performance is one of America’s most pressing domestic issues.  Despite the No Child Left Behind law, the Race to the Top initiative and endless debate over K-12 school reforms—accountability, standards, smaller classes, more effective teachers, better pay, charter schools, extended day, yearlong schools—the performance gaps (between races) have persisted, especially in the later ages.[20]

Perhaps, rather than resort to these race-neutral alternatives, universities can take a bolder step by putting their endowment and influence behind a comprehensive effort to close the learning gap that starts at birth.[21]  An additional solution would be for prominent institutions to address undermatching of minority students.[22]  Arguably, this is the least controversial way to boost racial, ethnic and economic diversity—involving no preferences—by getting talented minority and disadvantaged students to apply to selective colleges in greater numbers.[23]  Researchers have found that lack of understanding about need-based financial aid and poor guidance counseling are contributing factors to minority and low income students failing to apply to selective colleges at which they would likely be admitted and succeed, instead selecting less selective institutions or none at all.[24]  Increased information about colleges and financial aid can address this issue.[25]

 

 

Conclusion

As the law currently stands, race-neutral alternatives appear to be the preferred mode of operation to achieve diversity—largely because it is less objectionable than the blatant use of race in the court of public opinion.  However, studies have proven that they are not as effective in increasing the population of underrepresented students on college campuses as race conscious admissions policies.[26]  Further, an outright constitutional ban on the consideration of race in the admissions process would cause the already abysmal numbers of minority students in higher education to plummet further.  Due to the ever-changing demographics in our country, this should raise concern not only for minorities, but all Americans, because it is economically imperative to tap into the talents of America’s new majority.[27]  The twin trends of increasing economic inequality and the racial and ethnic shift in the population mean that America can no longer afford to bypass its growing number of low-income and minority students.[28]   If we do not dramatically expand college access and opportunity for poor students generally, and minority students specifically, we are headed for catastrophe.[29]  Thus, should the Court ever strike down the use of race in admissions evaluation, opponents of the policy should not cheer, and proponents should not jeer; both should take action to find solutions to improve access to higher education for all, because the future of our nation depends on it.

[1] Liz Leer et al., Education Emerges as Prominent Civil Rights Issue, Survey Says, THE NEW CIVIL RIGHTS, (last visited Nov. 22, 2014), civilrightsproject.wordpress.com.

[2] See generally Regents of Univ. Cal. v. Bakke, 438 U.S. 265 (1976); Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003); Fisher v. Univ. of Tex., 133 S. Ct. 2411 (2013).

[3] See Fisher v. Univ. of Tex., 758 F.3d 633 (5th Cir. 2014).

[4] Grutter, 539 U.S. at 337.

[5] Id.

[6] Fisher, 133 S. Ct. at 2421.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Scott D. Gerber, Affirmative Action and the Crisis in Higher Education, Huffington Post Politics: The Blog, (October 13, 2014, 5:59AM), http://www.huffingtonpost.com/scott-d-gerber/affirmative-action-and-th_b_5675128.html.

[13] Id.

[14] Id.

[15] See generally Richard D. Kahlenberg, A Better Affirmative Action: State Universities that Created Alternatives to Racial Preferences, THE CENTURY FOUNDATION, http://tcf.org/assets/downloads/tcf-abaa.pdf (last visited Nov. 22, 2014) at 1.

[16] Id.

[17] Richard D. Kahlenberg, The Future of Affirmative Action: New Paths to Higher Education Diversity After Fisher v. University of Texas, THE CENTURY FOUNDATION, http://apps.tcf.org/future-of-affirmative-action (last visited Nov. 23, 2014) at 160. According to legal scholars John Brittain of the University of the District of Columbia Law School and former chief counsel of the Lawyers Committee for Civil Rights, and his coauthor Benjamin Landy, civil rights groups have made a “Faustian bargain” with universities in which civil rights advocates have not challenged the racially discriminatory impact of the SAT so long as universities provide affirmative action.

[18] Thomas J. Espenshade, Moving Beyond Affirmative Action, NYTIMES, (Oct. 4, 2012), http://www.nytimes.com/2012/10/05/opinion/moving-beyond-affirmative-action.html?_r=0.

[19] Id.

[20] Id.

[21] Id.

[22] Kahlenberg, supra note 17 at 138-139.

[23] Id.

[24] Id.

[25] Id.

[26] Id. at 28.

[27] Id.

[28] Id.

[29] Id.

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