Compulsory Vaccination Regulations Should be Left to the States By Stephen Mckitt

Compulsory Vaccination Regulations Should be Left to the States

By

Stephen Mckitt

            In recent months, the outbreak of measles in southern California and other incidents like it have brought the issue of compulsory vaccinations to the forefront of the national news.[1] While all fifty have at least some requirements for vaccinations, no federal regulation requiring vaccinations exist.[2] With apparent danger of diseases such as measles and the obvious protections vaccinations afford communities from them, many have begun to wonder why the Federal Government has not stepped in and provided uniform regulations that would require children to be vaccinated. This question has began to be asked more as citizens have become increasingly aware of the ease of which those that are against vaccinations can gain an exemption from the mandatory vaccination laws of their state.[3] Despite this, whether vaccinations should be compulsory should be left to the states for two reasons. First, this form of the police power should be left to the states. Secondly, this issue has centered primarily on parents that have refused to vaccinate their children for various reasons and while the Supreme Court has recognized the states’ right to require vaccination in Jacobson, it has been reluctant to override the right of fit parents to make decisions for their children.

The Police Power

            The seminal case on the issue of state compulsory immunization, Jacobson v. Commonwealth of Massachusetts, is also important in understanding the reach of state police power on this issue.[4] In Jacobson., the court  considered  the constitutionality  of a state law that allowed a city or town board of health to require inhabitants to be vaccinated.[5] The statute was passed in order to prevent a smallpox outbreaks from spreading.[6]The court analyzed the statute as an exercise of the states Police Power, “a power which the state did not surrender when becoming a member of the Union under the Constitution.”[7] The states have to the freedom to exercise this power so long as it does not violate the Constitution.[8] According to James Hodge and Lawrence Gosten, in deciding the constitutionality of the statute the court analyzed the issue in four ways: the public health necessity of the statute, the reasonableness of the means used to achieve the public health objective, the proportionality of the health regulation in regard to the threat it is meant to prevent, and harm avoidance i.e. whether the measure itself poses a health risk to its subjects.[9]

The court in Jacobson concluded that the statute was a reasonable exercise of the state police power to promote public health.[10] The manner by which a state promotes public health is in the states discretion, so long as in doing o the state does not infringe on the U.S. Constitution.[11] It is telling that the court in Jacobson analyzed this issue as one of the state’s police power. The states are likely better equipped to understand the needs of their citizens. Also the four categories that the court viewed the statute under are better understood and constitutionally met at a state level, particularly the reasonableness of the means used and the proportionality of the regulation requiring the vaccination. In addition, as previously stated, all 50 states already have some form of vaccination regulation. While the issue of compulsory vaccination is a very serious one, the states have been handling the issue since 1905 and the federal government should continue to allow them to do so.

Reluctance to Override the Decisions of Fit Parents

            Much of the debate concerning the issue of compulsory vaccinations centers on parents who, in the face of a large amount of scientific evidence proving otherwise, believe that vaccinations would be detrimental to their children.[12] While some believe that these parents’ decisions should be overridden for the good of the many, the Supreme Court has long recognized that parents have a fundamental right to make decisions concerning the care custody and control of their children.[13] When the government is forced to infringe on a fundamental right of its citizens, it should do so carefully, proportionally, and in the most reasonable manner possible to achieve the objective. Additionally, the Court has held that there is a presumption that fit parents act in their children’s best interest when making decisions for them.[14] While data indicates vaccination is one of the human races greatest medical advances, it would be unfair to label every parent who decides not to get their child vaccinated as unfit. It would be very difficult to argue that parents electing to vaccinate their children are making a bad decision, however the Court has held that the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a “better” decision could be made.[15] So, the fact that electing to vaccinate a child is, in all likelihood, the better decision does not automatically give the Government the right to override the decision of a parent who decides not to vaccinate their child.

I recount these ruling not to argue that these parent’s right to raise their children trumps the public health concerns that have arisen with the reemergence of diseases like measles, which vaccinations had driven to the brink of extinction in this country. I recount these rulings simply to indicate that these parent’s rights are real, and if they must be infringed upon for the public safety of the rest of the community it must be done in a reasonable way. As my colleague Ms. Smith points out in her blog, many states have exemptions to their compulsory vaccination laws and many people are upset with the ease of which the exemptions are sometimes granted. These exemptions can be characterized as a comprise or balance between the fundamental right parents have to choose what they believe is best for their children, and the public health need stop the highly preventable spread of diseases for which vaccinations have been engineered. A blanket federal regulation mandating vaccinations would upset this balance that the states have created and open the Government up to Due Process claims from citizens across the country. It would likely be much easier for citizens to lobby their state legislatures for stronger vaccine regulation or a complete elimination of exemptions than it would be to lobby the entire legislative branch of the federal government.

Conclusion

            The point of this blog is not to argue against compulsory vaccination. Instead, it is to stress the existence of the rights of the individuals on both sides of this issue and how these rights can likely be better protected at the state level. While it is easy to say that parents that refuse to get their children vaccinated are unfit or misinformed, there are those among them that are simply concerned parents, and no one can be faulted for that.

[1] Maggie Fox, Disney Measles Outbreak Could Get Worse, Experts Warn, NBC NEWS http://www.nbcnews.com/storyline/measles-outbreak/disney-measles-outbreak-could-get-worse-experts-warn-n291426

[2] http://www.cdc.gov/vaccines/imz-managers/laws/state-reqs.html

[3] Mariano Castillo, What Vaccination Exemptions Does Your State Allow, CNN (Fed. 4 2015. 5:01 P.M.), http://www.cnn.com/2015/20/03/health/vaccination-exemptions-state-by-state/index.html

[4] 197 U.S. 11 (1905)

[5] Id. at 12.

[6] Id. at 12.

[7] Id. at 25.

[8] Id. at 361.

[9] Allan J. Jacobs,  Is State Power to Protect Health Compatible with Substantive Due Process, 20 Annals Health L. 113, 128 (2011).

[10] Jacobson, 197 U.S. at 39.

[11] Id. at 25.

[12]Frank Bruni, The Vaccine Lunacy: Disneyland, Measles and Madness, The New York Times Sunday Review (Jan. 31, 2015), http://www.nytimes.com/2015/02/01/opinion/sunday/frank-bruni-disneyland-measles-and-madness.html?_r=0.

[13] Stanley v. Illinois 405 U.S. 645, 651 (1972)

[14] Parham v. J.R., 442 U.S. 584,602 (1979).

[15]Troxel v. Granville, 530 U.S. 57, 72-73 (2000)

Madness—Outbreaks Signal Need for Government Regulation of Immunizations If the Happiest Place on Earth Isn’t Safe…How Important is Freedom of Choice? By: Shalyn Smith

Madness—Outbreaks Signal Need for Government Regulation of Immunizations

If the Happiest Place on Earth Isn’t Safe…How Important is Freedom of Choice?

By: Shalyn Smith

A Rather Cynical Introduction

Alas, a topic that is not too liberal, and not too conservative—Mickey Mouse has the Measles. How could that be in 2015? Just 11 years ago in 2004 there were only 37 cases of the measles reported in the United States.[1] And interestingly enough, this topic (which seems so far from political in nature) has become a legal question in our county. Vaccinations, immunizations, and public health are officially the new controversial topic in America. Ironically enough, this issue rose to the forefront of American cocktail hour conversations after a Measles outbreak occurred in December 2014 at Disneyland in Anaheim California.[2] Since the Disney story hit the headlines about 644 cases of the measles have been reported.[3]

Former Secretary of State Hillary Clinton is tweeting: “The science is clear: The earth is round, the sky is blue, and #vaccineswork. Let’s protect all our kids.”[4] In contrast, possible Republican presidential candidate Chris Christie is singing another tune.[5] Christie, the New Jersey governor, states that “the government should find ‘balance’ on the issue” and that “parents need to have some measure of choice” when it comes to immunizations.[6] Rand Paul is even commenting. Paul, a Kentucky senator and ophthalmologist, said that he believes most vaccines should be voluntary, and that “parents should have some input… [t]he state doesn’t own your children … and it is an issue of freedom and public health.” Paul added that he “heard of many tragic cases of walking, talking normal children who would up with profound mental disorders after vaccines.”

So, in 2015 are vaccinations now a question of civil rights?

The Facts- Vaccination Numbers Across the Country

            In light of all the controversy surrounding vaccinations, it is helpful to recognize the number of children in America who are currently vaccinated. According to the Center for Disease Control (“CDC”), 95% of children in kindergarten have had vaccines for preventable diseases, including two doses of the measles, mumps, and rubella (“MMR”) vaccine.[7] 82% of children in Colorado have had the two-dose MMR vaccine that doctors say is necessary.[8] On the other hand, in Mississippi almost all children in kindergarten (99.7%) are vaccinated.[9] Sadly though, 26 states have not reported meeting a government target of 95% coverage for MMR.[10]

States are not reporting their vaccination rates because each state operating independently has created its own vaccination law.[11] 48 states and the District of Columbia allow religious exemptions from vaccines, and 20 states allow philosophical exemptions.[12] In California, there were 1,000 medical exemptions in the 2013-2014 school year, and more than 17,000 philosophical exemptions. In contrast, Florida had less than 800 medical exemptions and about 4,000 religious exemptions.[13] Florida does not allow philosophical exemptions.[14] Mississippi and West Virginia do not allow religious or philosophical exemptions, and they reported only about 50 medical exemptions combined.[15]

The Issue- Public Safety and Health Concerns

            Variations in vaccination laws lead us to the true “civil rights” issues surrounding the immunization debate. It is a basic principle of law that one person’s private rights end where the rights of another person begins.[16] The most common example of this principle is the enumerated right to free speech, which is given by the First Amendment of the United States Constitution.[17] Even though all citizens have the right to speak freely, one cannot walk into a crowded movie theater and yell “fire” when no such threat exists.[18] Additionally, cyber bullying, and anti terrorism laws infringe on freedom of speech because sometimes, one person’s right can cause harm to others or become an issue of national security. So, when states offer exemptions to immunization requirements, they ultimately infringe on the rights of other citizens to live free and clear of diseases that can cause death.[19]

It may sound outlandish to state that all exemptions are wrong. After all, there are cancer patients and young infants who do not qualify for immunizations. Some religions choose to live without the use of modern medicine. But my question to each of these situations is: “when is enough…enough?” There is a distinct difference between a person who is physically unable to be vaccinated without causing further medical issues, and a person who makes the choice not to be immunized.

For example, let’s consider the fictional story of Susie- a sixth grader in a state that allows exemptions. Susie’s mom is told at the beginning of the school year that many students have nut allergies, so she should not bring foods with nuts to the school. She is also told that Susie must have an updated immunization record before she begins classes. Susie’s classmate Mark is one of the students with nut allergies, and his parents were able to earn a vaccination exemption for him. Is it fair that Susie’s mom must protect Mark by remembering not to pack peanut butter sandwiches, but that Mark’s parents need not worry about the possibility that Mark could contract mutating forms of diseases like the Measles and effect his other classmates? An EpiPen might alleviate any of Mark’s allergy problems, and the school nurse can keep one on hand. However, that same school nurse probably cannot treat the Measles.

The graphic below depicts the Measles outbreak this year in America:

150204132250-01-vaccinations-graphics-super-169

[20]

With the spread of the Measles virus, public health should be one of our federal government’s major concerns.

The Barriers- Personal Autonomy and Freedom of Choice

            Despite these public health and safety concerns, scholars argue that the government should not be able to dictate what decisions parents make for their children. For example Mr. Stephen McKitt states elsewhere in this blog that parents should be able to make decisions for their children.

Mr. McKitt’s view reminds me of a lecture given by UA Law’s esteemed Prof. Ronald Krotoszynski. As one of his first year Constitutional Law students, I remember Prof. Krotoszynski stating: “if parents want to teach their children Klingon instead of English…they can!” Far be it from me to disagree with Professor Krotoszynski, so I admit, Mr. McKitt is correct. Parents have the right to raise their children as they wish.[21]

But, even that right has its limits. For example, parents can face criminal penalties for child abuse[22], they can’t give their children controlled substances[23], and I’m sure Mr. McKitt will agree that parents cannot intoxicate their children with liquor. At some point a parent’s personal view cannot and should not supersede the welfare of a child. And, considering the fact that physical and substance abuse can lead medical issues that parallel with the likelihood of contracting a disease on a family trip to Disneyland, immunizations are not a choice that parents should make for their children unless absolutely necessary.[24]

The Solution- Strict Government Regulation

            At the end of the day, very little can be done on the state level to remedy this issue. It seems unlikely that a state like California that reports thousands of exemptions a year will independently decide to streamline its laws to fit with a state like Mississippi’s laws. And although many of us detest the idea of big government, it might be best for the federal government to regulate immunizations.[25]

Federalism challenges aside[26] however, it is unlikely that the federal government will do so. President Obama’s 2015 budget already includes a $50 million budget cut to the federal immunization program.[27] Since the program’s purpose is to make immunizations more accessible, President Obama felt the budget cut was appropriate considering the ACA expansions that seek to achieve the same goal.[28]

Until Congress decides to consider regulation though, all Americans can do is sit back and ask their states to change exemption policies. I concede Mr. McKitt’s point: a federal regulatory scheme may never happen considering the political dynamic of the Hill at this time. What I will not concede though, is that personal autonomy and “freedom” is the true concerns of this movement.

[1] Frank Bruni, The Vaccine Lunacy: Disneyland, Measles and Madness, The New York Times Sunday Review (Jan. 31, 2015), http://www.nytimes.com/2015/02/01/opinion/sunday/frank-bruni-disneyland-measles-and-madness.html?_r=0.

[2] Id.

[3] Id.

[4] Catalina Camia, Hillary Clinton: The earth is round and vaccines work, USA Today (Feb. 3, 2015, 12:06 P.M.), http://www.usatoday.com/story/news/nation-now/2015/02/03/hillary-clinton-vaccines-work-tweet-christie/22783761/.

[5] Id.

[6] Id.

[7] But that figure is not spread evenly across the country. See Josh Levs, The unvaccinated by the numbers, CNN (Feb. 4, 2015 , 8:05P.M.), http://www.cnn.com/2015/02/03/health/the-unvaccinated/index.html.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] See David G. Owena1, Expectations In Tort,  43 Ariz. St. L.J. 1287, 1287 (2011). Owenal states:

Most elementally, each person possesses an equal abstract right to pursue and protect his or her own interests without undue interference from others. Bearing prominently on intentionally inflicted harms, this right suggests that an actor should not deliberately harm another to advance the actor’s own interests without due consideration of the potential victim’s fair expectations of freedom from harm. For example, one should not deliver an unprovoked punch in the nose merely to show off one’s pugilistic skills, allay one’s anger, or win a bet. Since one person’s abstract autonomy rights are equal to every other person’s similar rights, no person should infringe the autonomy of another without fair consideration of the expected harm to the other’s interests. Simply put, one person may not fairly choose to harm the vested interests of another without consent or justification.31 Harmful conduct thus may be viewed as unjust or wrongful, in equality terms, if the actor chose to cause the harm while knowing that it would violate the victim’s equal right to freedom.

[17] U.S. Const. amend I.

[18] See Rex Armstrong, Free Speech Fundamentalism—Justice Linde’s Lasting Legacy, 70 Or. L. Rev. 855, (1991) (stating: “it is possible to identify expression that almost all would agree should be subject to prosecution, such as falsely shouting “Fire!” in a crowded theater, it is argued that the first amendment cannot be absolute in its protection of expression.”).

[19] Robert Pearl, A Doctor’s Take: Why Measles Vaccination Must Be Mandatory, Forbes (Feb. 5, 2015, 1:00 P.M.), http://www.forbes.com/sites/robertpearl/2015/02/05/measles-vaccination-must-be-mandatory/

[20] Holly Yan, Different State, Different Rules on Vaccinations, CNN (Feb. 4, 2015), http://www.cnn.com/specials/health/measles.

[21] See Troxel v. Granville, 530 U.S. 57, 72-73 (2000) (holding that “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a “better” decision could be made”).

[22] Thomas A. Jacobs, 1 Children & the Law: Rights and Obligations § 2:17 (last updated 2014)

[23] Id. at § 2:20.

[24] Pearl, supra note 19.

[25] Id.

[26] Mr. McKitt cites to the U.S. Supreme Court Decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). There the court held that states have the power to require vaccinations. In 2015, this is not a concern, we all know that state have the power to pass the vaccination laws, and therefore the real question is if the federal government does not have the power to do so. The court did not discuss this issue in Jacobson, and therefore it is a question of law that has yet to be decided.

[27] Devin Dwyer, Why Obama’s Budget Cuts $50 Million From National Vaccine Program, ABC News (Fe. 3, 2015, 11:28A.M.), http://abcnews.go.com/Politics/obamas-budget-cuts-50-million-national-vaccine-program/story?id=28689193.

[28] Id.

The US Embargo of Cuba: 50 Years of Failure by Julie Gafnea

The US Embargo of Cuba: 50 Years of Failure

by Julie Gafnea

For more than 50 years, the United States has been trying to bring about regime change in Cuba using a unilateral isolation policy known as the Cuban Embargo. President Kennedy proclaimed a formal embargo against all trade with Cuba on February 3, 1962.[1] For the first time since then, shifting politics in the United States and changing policies in Cuba make it politically feasible for President Obama to re-establish formal diplomatic relations and dismantle the senseless Embargo.[2] Though some continue to support the Embargo, most consider this change in approach toward Cuba to be a step in the right direction.

Over the decades, it has become clear to many American policy makers that the Embargo is an utter failure.[3] Despite 50 years of continued efforts, the Castro brothers are still in control.[4] This is an illustration of how unilateral sanctions are far less effective than punishments imposed by a broad coalition of nations. [5] We can and do export to Cubans through our commercial dealings with other countries.[6] As any smoker knows, our embargo on Cuba has not kept some of the world’s best cigars from the hands of Americans.[7] To stop trade with Cuba would require a blockade to cut Cuba off completely from the outside world.[8]It was never even likely that the Embargo, in the absence of similar offerings from Canada and Europe, could squeeze the Castro dictatorship to the point of collapse.[9]

Seeking to prove that Fidel Castro was still among the living, Cuban officials released a photo of the ailing dictator, and in it he was wearing an Adidas track suit.[10] Adidas is a German company, and presently there is no Germany/Cuba trade embargo as there is between the United States and Cuba.[11] But had Castro been decked out in Nike gear, the picture wouldn’t have been any more remarkable.[12] The reason is that while Nike is an American firm, its brand is international.[13] If it happened to be that Castro preferred Nike track suits, he could simply have had one purchased in one of the many countries in which Nike sells its goods, and which have more open trading relations with Cuba.[14]

Instead of having its intended effects, the Embargo became an irritant in relations with other Latin American countries and shielded the Cuban island (90 miles just off the coast of Florida) from the overwhelming economic and cultural power of the United States.[15] What’s more, the Castro regime, playing the victim,  has long blamed the Embargo for its shortcomings, and has kept ordinary Cubans largely cut off from the world.[16]

But even after President Obama’s recent moves to loosen restrictions and re-establish contact, the Embargo remains enshrined in federal law as a symbol of our political system’s inability to acknowledge failure and deal with its consequences in a forthright way.[17] After the Soviet Union fell, the Embargo pivoted into the human-rights space; what was originally billed as a national-security protection was recast as a way of signaling distaste for the Castro regime.[18] Around the same time, enterprising users with political ambitions figured out how to hack the Embargo for their own purposes.[19]

For a long time there has been a domestic feeling that  lifting the Embargo would be political suicide for anyone brave enough to attempt it. Any such proposal angered Cuban-American voters, a constituency that has had an outsize role in national elections.[20] Now that the fiercely anti-Castro generation is becoming older and less powerful, there is less of a risk. Younger Cuban-Americans hold starkly different views, having come to see the sanctions as more damaging than helpful.[21] A recent poll found that a slight majority of Cuban-Americans in Miami now oppose the Embargo.[22] A significant majority of them favor restoring diplomatic ties, mirroring the views of other Americans.[23]

Despite attempts to re-characterize intentions behind the Embargo, the current policy has been totally counterproductive in terms of human rights.[24] Humanitarian groups and international advocates long concerned over the dire conditions in Cuba welcome the news of increased relations.[25] Humanitarian organizations and political leaders around the world have insisted for years that the Embargo imposed by the United States only exacerbated poor conditions in Cuba.[26] At the United Nations General Assembly in October, 188 out of 192 countries condemned the Embargo for doing little to help human rights.[27] What’s more, the White House has pledged to make improving human rights conditions in Cuba a central pillar of mending relations — a goal that got off to a good start with Cuba’s release of 53 political prisoners, as well as U.S. aid worker Alan Gross, who had been imprisoned for five years.[28]

There are those who will always remember the scars left by the fading Castro regime and condemn the United States’ efforts to restore relations with Cuba without substantial change first. However, the fact that the Embargo has not worked and is never going to work cannot be ignored. The extent of the positive benefits to come out of these efforts is not clear, but what is clear is the bleak outlook of a continuation with the same failed policies.

[1] Proclamation N. 3447, 3 C.F.R. 157 (1959-1963), reprinted in 22 U.S.C at 551 (1988). Richard D. Porotsky, Economic Coercion and the General Assembly: A Post-Cold War Assessment of the Legality and Utility of the Thirty-Five-Year Old Embargo Against Cuba, 28 Vand. J. Transnat’l L. 901, 906 (1995).

[2] Obama Should End the Embargo on Cuba, The New York Times,

http://www.nytimes.com/2014/10/12/opinion/sunday/end-the-us-embargo-on-cuba.html?_r=0 (last visited February 1, 2015).

[3] Id.

[4] Carla Anne Robbins, Why Economic Sanctions Rarely Work, Bloomberg (May 23, 2013),

http://www.bloomberg.com/bw/articles/2013-05-23/why-economic-sanctions-rarely-work.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Dante Ramos, Cuba Embargo is Washington’s Failed App, The Boston Globe (Dec. 24, 2014), http://www.bostonglobe.com/opinion/2014/12/23/cuba-embargo-washington-failed-app/nFxziNxhnzK2nsZL6vsYFK/story.html.

[10] John Tamny, Trade Embargos Are an Unworkable Myth, Real Clear Markets (June 26, 2008), http://www.realclearmarkets.com/articles/2008/06/trade_embargos_are_an_unworkab.html.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Dante Ramos, Cuba Embargo is Washington’s Failed App, The Boston Globe (Dec. 24, 2014), http://www.bostonglobe.com/opinion/2014/12/23/cuba-embargo-washington-failed-app/nFxziNxhnzK2nsZL6vsYFK/story.html.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Obama Should End the Embargo on Cuba, The New York Times, (OCT. 11, 2014),

http://www.nytimes.com/2014/10/12/opinion/sunday/end-the-us-embargo-on-cuba.html?_r=0.

[21] Id.

[22] Id.

[23] Id.

[24] Amanda Sakuma, Human Rights Groups Hail Restoration of US-Cuban Ties, MSNBC (Dec. 17, 2014, 8:45 PM),

http://www.msnbc.com/msnbc/human-rights-groups-hail-restoration-us-cuban-ties.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

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.

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