Category: Legislative Oversight

The US House Must Start Protecting Undocumented Minors

April 20th, 2019 in Analysis, Federal Legislation, Legislative Oversight

The 2018 midterm election should be considered less of a “blue wave” and more of a call to action made by the people of the United States to their House Representatives. The Trump administration has made many an egregious decision since 2017 and the Democrats of both the House and the Senate have unable to block such decisions due to their minority status. The Democrats must use their majority status in the House to actively combat the Trump administrations treatment of Latin American and other undocumented minors in detention.

Beginning in April 2018, Trump’s “zero tolerance” immigration policy led to the separation of infants from their mother’s arms, children from their father’s reach, and siblings from their brother’s or sister’s hands. Family separation shocked the conscience of the nation and the outcry against the policy’s ramifications drove President Trump to sign an executive order “ending” family separation. Thousands of children remained in detention, separated from their parents, for months after the executive order. In June 2018, a U.S. District Court Judge issued a preliminary injunction against the government, requiring that children be returned to their parents within 30 days. Come late October, the Department of Homeland Security still had hundreds of separated children in its custody. The government’s failure to comply with the injunction filled public discourse with calls to act to free the children. Some of the parents of these children who have been deported to the countries they fled have made the soul-churning decision to leave their children in the United States because returning the children to their country of origin could mean death. Despite the alleged “end” of the family separation policy, 81 children have been separated from their families since President Trump’s executive order.

Another source of turmoil within the United States’ immigration system is the lack of representation for these children. Children, who do not speak English and are as young as 3 years old, are representing themselves against the U.S. government in immigration courts. They are being led to make decisions that are not in their best interest. For example, a 5 year old girl named Helen was told to sign her name on a form that waived away her rights to a Flores bond hearing, which would have guaranteed her a hearing in front of an immigration judge in far less time than she spent at a shelter, separated from her family. While organizations like the American Civil Liberties Union, private firms, and law school institutions are providing legal services to help bring families back together, the number of children essentially being forced to represent themselves is too high.

The psychological toll on the detained children who were reunited with their families is immeasurable. There have been documented cases of young children, unable to understand why their parents suddenly disappeared from their lives, rejecting or distrusting their parents upon reunification. Other children live in fear of being taken again and anxiously cling to their parents. In December 2018, the nation took notice of the deaths of two undocumented children, one a 7 year old girl and the other an 8 year old boy, both from Guatemala, who died from medical complications while in Border Patrol custody.

More and more questions are being raised in Congress about how to address the turmoil of the Trump administration’s immigration landscape. Despite increased attention on this humanitarian crisis at the border, the problem has gotten worse over the past few months.  In fact, Boston University Law Professor Sarah Sherman-Stokes reports that a team of BU Law professors and students spent a week at the border in March.  They used sharpie markers to write parents’ contact information on their children in case they were separated.  Despite this, the Trump White House seems to be now moving toward an even harder line toward migrants; complete with a purge of Homeland Security leadership.

At this point, there should be no compromise by Democrats regarding the treatment of undocumented children and their families. Now that Democrats have a deciding vote in the House, they must use that vote, the voice their constituents gave them–and especially their oversight powers–to protect the voiceless and vulnerable children in DHS custody.

This may be finally happening.  On April 17th, Elijah Cummings (D-Md.), chair of the House Oversight Committee, invited the architect of Trump’s immigration policy Stephen Miller to appear before the Committee:

“I am offering you an opportunity to make your case to the Committee and the American people about why you — and presumably President Trump — believe it is good policy for the Trump Administration to take the actions it has, including intentionally separating immigrant children from their parents at the border to deter them from coming to the United States, transferring asylum seekers to sanctuary cities as a form of illegal retribution against your political adversaries, and firing top Administration officials who refuse orders to violate the law.”

Miller is scheduled to appear before the Oversight Committee on May 1.

The safety of children should not be a partisan issue, but if anyone is going to act to ensure the safety of immigrant children, it should be the newly elected House of Representatives. The House should pressure the Senate and President to abide by the United Nation’s guidelines on the humane treatment of migrant children and their families and enforce their implementation. Any derogation leaves room for more horrifying tales of assault, abuse, trauma, and deaths of innocent children who were only trying to avoid such fates in their homelands. The House should also legislate to protect the Flores rights of unaccompanied minors and require that these minors be provided with representation in front of immigration courts.

The international community has condemned President Trump’s treatment of migrants, documented and undocumented, asylum-seeking and non-asylum-seeking, on several occasions, but some of the loudest condemnations fall upon the separation of families and treatment of children. Some governments and organizations have gone so far to call the family separation policy a humanitarian crisis and illegal. Let this moment in our nation’s history not go down as a complete humanitarian failure but as a showing of what the people can do to try and rectify the mistakes made by discriminatory policymaking.

 

Cassandra Castro will graduate from Boston University School of Law in 2020.

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Of Migration and Refugees: The Failure of Republican Deterrence Policy

February 7th, 2019 in Federal Legislation, Legislative Oversight

Despite two years of the Trump administration’s get-tough-on-refugees policy, the latest statistics continue to show record numbers of migrants crossing the U.S. border, with 16,658 family members in September, the highest one-month total on record and an 80 percent increase from July.This is just the latest in the periodic reports showing that Trumps immigration policy has failed, which should prompt questions both about why it has failed, as well as why Trump continues to insist on such a patently immoral approach to policy. Since at least 2014, Republicans have pushed for draconian treatment of border-crossers on the theory that such treatment will deter people from entering the United States. However, deterennce ignores the reasons why people are fleeing their home countries, and thus predictably fails, suggesting that the G.O.P. has adopted the policy in order to appeal to a segment of the voting public whose fear and hate have been amplified by right-wing propaganda.

Shortly after taking office, Trump quickly began to make good on his campaign promises to get tough on immigration, reversing what he termed Democrats’ soft approach. These policies included the end of Obama’s Deferred Action for Childhood Arrivals program, the end of Temporary Protected Status for hundreds of thousands of people, and the implementation of harsh treatment of immigration detainees at the border, including family separation, prolonged detention of asylum-seekers, the use of prisons as “detention” facilities, and a concentration of resources to increase prosecute border-crossers (and significant evidence of over-enforcement). The goal of such policies is apparently rooted in a belief that such policies will deter migrants from attempting to enter the United States, notwithstanding the lack of evidence that such deterrence is effective.

BBC.Com

These policies should be seen as derivative of the rhetoric of Republican critics of President Obama’s initial response to the so-called “surge” of children crossing the border in 2014. In early June, Obama originally declared the situation a humanitarian crisisand directed officials to apprehend and provide care, including housing and medical treatment, and legal aid. However, with right-wing propaganda outlets such as The Daily Caller whipping up fear of the children at the border, Republican politicians seized on the opportunity to make the humanitarian crisis into a political one. Claiming the crisis was due a failure of the Obama administration, politicians such as House Judiciary Chair Robert Goodlatte suggested that the solution was simply an end to “Obama’s lax immigration enforcement policies” and rigorous enforcement of the immigration laws. And, by the end of June, the Obama administration, feeling the pressure from the right, shifted gears and adopted a policy of deterrence. This crackdown included increased enforcement and wide-spread use of detention centers, as well as an information campaignto send a clear message to potential migrants so that they understand the significant dangers of this journey and what they will experience in the United States. This created little political traction for Democrats, as Republicans insisted that it was too little, too late, and that draconian deterrence measures were necessary.

The reality is that migration to the United States from Central America is largely driven by push factors forcing people out of their home countries, not pull factors luring them to the United States, which explains the lack of evidence for the efficacy of deterrence. As a worker at a migrant shelter in Tucson, Arizona is reported as explaining, Why would you undertake such a dangerous journey? When youve got a gun to your head, people threatening to rape your daughter, extort your business, force your son to work for the cartels. What would you do?While Trump insists on depicting migrants from Central America as gang-members, or even soldiers “sent” by their home countries in a mythical war on American interests, it is probably best to think of human beings fleeing their nations because of violence as asylum-seekers.

The Refugee Act of 1980 defines refugees and asylum-seekers to be those who are persecuted, or have a well-founded fear of persecution[,] on account of race, religion, nationality, membership in a particular social group, or political opinion.The law also provides a right to any alien within the United States to seek asylum, requiring those seeking such status to cross the border. Trump appears to see asylum, one of the basic pillars of human rights law, as a loophole to be exploited by evildoers, and is seeking to close that loophole,if not through legislation, then through deterring those seeking safe-harbor. Trump’s Justice Department, has moved to exclude domestic violence and gang targeting as bases for establishing persecution based on membership in a particular social group, overturning Board of Immigration Appeals precedent. On a moral level, there seems little reason to distinguish between the persecution faced by political dissidents in totalitarian regimes, and that faced by victims of the reign of terror perpetrated by gangs in Central America. Certainly, the pervasive fear of violence under both regimes is what drives people to seek safety in other countries. It is this push-factor, the pervasive violence faced by many Central Americans in their home nations, that is driving migration to the United States, and no amount of deterrence, short of recreating the violence of their home nations at the American border, will change the minds of those who feel forced to flee for their lives.

NBC News

That said, as Trump is able to feed on fear and hate in order to build political power with his Republican base, it is unlikely that evidence-based policy arguments about the efficacy of deterrence policy will make much headway towards a reconsideration of said policy. Perhaps a congressional re-imagination made possible by the new Democratic House majority will lead to legislative changes prompting a humane response to what is at base a humanitarian crisis. The House leadership’s recent refusal to appropriate money for what many consider a boondoggle border wall suggests that Democrats are eager to pass sensible border policy rather than acquiesce to Trump’s grandstanding. Congressional mandates that the executive branch again consider domestic violence and gang intimidation as possible bases in the determination of asylum would be a start. Shifting resources from detention centers to asylum officers and immigration judges, thereby treating asylum-seekers as asylees and not felons would help as well. And, in the long-run, Congress should consider how best to address the push factors causing people to flee for their lives in the first place.

 

Dan Ordorica anticipates earning his Juris Doctor from Boston University School of Law in May 2019.

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The U.S. Postal Service is Staying Alive (for now)

July 19th, 2018 in Analysis, Federal Legislation, Legislative Oversight

During the Spring, President Trump has brought to the spotlight a little-discussed, quite unsexy policy dilemma: how to save the U.S. Postal Service.

In a series of Tweets, the President accused Amazon of unfairly taking advantage of the U.S. Postal Service. The first of these Tweets appeared on his Twitter feed on March 29th, and seemingly accused Amazon of shirking its tax responsibilities and free-loading from the government delivery service:

“I have stated my concerns with Amazon long before the Election. Unlike others, they pay little or no taxes to state & local governments, use our Postal System as their Delivery Boy (causing tremendous loss to the U.S.), and are putting many thousands of retailers out of business!”

President Trump also seemingly accused the Washington Post, which is owned by progressive billionaire Jeff Bezos, of engaging in secret lobbying. Although it is not entirely clear to which type of lobbying President Trump was referring in his March 31st Tweets, he seems to imply that the Washington Post is Amazon’s lobbying arm or propaganda machine that is helping Amazon to rip off the post office:

“While we are on the subject, it is reported that the U.S. Post Office will lose $1.50 on average for each package it delivers for Amazon. That amounts to Billions of Dollars. The Failing N.Y. Times reports that “the size of the company’s lobbying staff has ballooned,” and that...

“…does not include the Fake Washington Post, which is used as a “lobbyist” and should so REGISTER. If the P.O. “increased its parcel rates, Amazon’s shipping costs would rise by $2.6 Billion.” This Post Office scam must stop. Amazon must pay real costs (and taxes) now!”

After several news outlets, including the New York Times, published articles rebutting his statement that Amazon is not paying taxes (Amazon paid $957 million in income taxes in 2017) and is costing the U.S. Post Office billions of dollars per year, President Trump again asserted that he was correct, tweeting in part, “Only fools, or worse, are saying that our money losing Post Office makes money with Amazon. THEY LOSE A FORTUNE, and this will be changed.”

A few days later, he again tweeted that, “Amazon should pay these costs (plus) and not have them bourne by the American Taxpayer. Many billions of dollars. P.O. leaders don’t have a clue (or do they?)!” However, if one thing is clear, it is that the U.S. Post Office is not funded through taxpayer dollars, but through its own revenue. Still, the President is correct that the post office is losing money every year, specifically $2.7 billion in fiscal year 2017. However, it is unlikely that the bulk of that loss was incurred by conducting business with Amazon.

According to the U.S. Postal Service’s annual report for fiscal year 2017, its biggest losses came from fluctuating forces outside of its control. “The controllable loss for the year was $814 million, a change of $1.4 billion, driven by the $775 million decline in operating revenue before the 2016 change in accounting estimate, along with the increases in compensation and benefits and transportation expenses of $667 million and $246 million, respectively.” Mail volumes declined by 3.6%, while employee benefits and transportation costs have increased. On the other hand, the report indicated that package mail is up by 11.4%, providing “some help to the financial picture of the Postal Service as revenue increased $2.1 billion.” However, that growth has not been able offset other losses.

In other words, package companies like Amazon may actually be helping the U.S. Postal Service, even if they are receiving discounted shipping rates. By law, the Postal Regulatory Commission ensures that all items sent through the U.S. mail are profitable. Therefore, even if the U.S. Postal Service gives a discount to Amazon, those shipments will still be profitable to some degree. Whether the U.S. Postal Service should charge higher rates is a separate issue.

Postmaster General and CEO Megan J. Brennan described the report’s findings as “serious though solvable.” So, how can the government hope to save an agency that has not had a net surplus since 2006? The U.S. Postal Service is hopeful that H.R. 756, which was introduced to the House of Representatives by Rep. Chaffetz in 2017, and is being sponsored by Rep. Garrett in 2018, will pass and provide some relief by reforming postal service benefits, operations, personnel, and contracting. In addition, the Postal Regulatory Commission must adopt a new pricing system to generate additional revenue.

U.S. Senator Bernie Sanders has also pitched some ideas in the past, which are now catching the public’s eye in light of the President’s recent Tweets. Senator Sanders recently told Vice News that the post office should expand its services to generate more revenue. For example, the U.S. Postal Service could offer gift-wrapping services to capitalize on package shipments around the holidays. Additionally, "[t]he postal service could make billions of dollars a year by establishing basic banking services so lower-income people have access not to these payday lenders but to someplace where they can be treated with respect."

This idea is not new. In fact, until 1966, many U.S. post offices did offer simple banking services. Moreover, other countries such as Japan, the United Kingdom, France, and Italy currently use similar systems of postal banking with success. Senator Sanders emphasized that the post office must survive or else Americans living in rural areas, where it is not profitable to deliver mail, will face a decrease or elimination of mail services.

One former postmaster added that “[a]bsent a public infrastructure like the postal service network, it’s likely that both of these private sector firms (Fedex and UPS) would either refuse to serve many areas of the country or they would use their powers as an oligopoly to control prices.” In other words, if the U.S. Postal Service goes out of business, other mail carriers may be unable to fill the gap, or may only do so at inflated rates.

With so much at stake, it is daunting to imagine America without the U.S. Postal Service. We can only hope that Congress will step in and make the necessary reforms before it is too late.

 

Caitlin Britos anticipates graduating from Boston Univeristy School of Law in May 2019.

 

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Drive-By Legislation Will Not Solve Drive-By Lawsuits

July 10th, 2018 in Analysis, Federal Legislation, Legislation in Court, Legislative Oversight, Uncategorized

If you ask disability rights activists about the ADA Education and Reform Act of 2017 (the “Reform Act”), you may get a response that the Reform Act, which recently passed the House, is not nearly as benign or as amicable to the interests of persons with disabilities as its title suggests.  In fact, many activists claim that the Reform Act would be downright harmful to persons with disabilities.

Tension over the Reform Act arises over key provisions requiring individuals with disabilities to give notice to businesses before filing a noncompliance lawsuit under the Americans with Disabilities Act (“ADA”).  Currently, an individual can bring a lawsuit under Title III of the ADA immediately for a business’ failure to comply with the ADA. Under the proposed law, after receiving notice, the business would have 60 days to provide a written plan describing how the business will conform to the ADA’s requirements.  The business then could take another 120 days to remove or make “substantial progress” toward removing the accessibility barrier.   Individuals with disabilities would have to wait at least 180 days, if not longer, to enforce their civil rights under the ADA.

Although disability rights activists and many supporters of the disabled community oppose the proposed law, the Reform Act has some bipartisan support in Congress in an effort to stem the tide of excessive “drive-by” lawsuits.

Do we have a “Drive By” Lawsuit Problem in the United States?

“Drive-by” lawsuits are a practice where unscrupulous attorneys file hundreds of lawsuits alleging often minor, technical violations of the ADA.  Lawyers working with as little as one plaintiff file lawsuits with boilerplate complaints looking for quick settlement payouts.  These lawyers have often only visited the business they are suing one time and sometimes neither the lawyers nor their clients are patrons of the business.

Recent, more extreme versions of “drive-by” lawsuits are called “Google lawsuits;” where lawyers file lawsuits just by looking for ADA violations on Google Earth.  By some estimates, businesses pay an average of $16,000 to settle these lawsuits rather than paying significantly more in legal fees to challenge the lawsuits in court.  Under Title III of the ADA, a plaintiff cannot recover damages, but can recover attorneys’ fees along with injunctive relief (see p.378).  Proponents of the Reform Act argue that these remedies promote excessive litigation.

Unfortunately, these “drive-by” lawsuits often do not result in increased ADA compliance.  These settlements are often just shakedowns for cash, which may not actually lead to fixing the underlying ADA violation.  As a result, some in the disabled community feel that these “drive-by” lawsuits actually harm relations between businesses and persons with disabilities.  Still, could the Reform Act do more harm than good?

Could the ADA Education and Reform Act Damage the ADA?

Originally enacted in 1990, the ADA has improved the lives of countless individuals with disabilities.  The ADA passed with widespread bipartisan support and is considered one of the most comprehensive and progressive disability civil rights statutes in the world.  In fact, many other nations have modeled their disability rights laws after the ADA.

The ADA is effective, in part, because of two key areas: Title I and Title III, which allow private rights of action to enforce individual rights.  Title I protects persons with disabilities in the employment context, and Title III protects persons in public accommodations.  Under Title III, places of public accommodation must remove accessibility barriers, but only if this is “readily achievable” and not and where removing barriers would require a fundamental alteration or an undue burden.  Unfortunately, although employers and places of public accommodation must proactively comply with the ADA, persons with disabilities often have to bring lawsuits to enforce the provisions of the ADA.  Businesses comply with the ADA not only because it is the right thing to do, but also because of the threat of lawsuits.

Accordingly, disability rights activists decry the Reform Act as a thinly veiled threat to disability rights.  The proposed law would fundamentally shift the balance of power for ensuring compliance to favor businesses.  Instead of proactive compliance, businesses could sit on their hands and wait to be sued.  Then, businesses would only have to show “substantial progress” toward compliance, not even full compliance, over the course of months.  For those who are legitimate patrons of a business and who require accessibility, waiting six months or more for “substantial compliance” is simply not a realistic option.

A Path Forward:  Changing Our Perception

Disability rights attorney Robyn Powell argues changes can be made without the Reform Act.  First, Ms. Powell posits that attorneys are bound not to represent individuals in frivolous lawsuits; making this is an issue for state courts and bar associations to address, not Congress.  Second, Ms. Powell points out that the, “ADA does not require any action that would cause an ‘undue burden’ or that is not ‘readily achievable,’” for a business to accomplish.

Many of the issues that the Reform Act seeks to address are issues that can be resolved without curtailing the civil rights of persons with disabilities.  Both the business community and the disability community have mutual interests in ensuring that frivolous, “drive-by” lawsuits are prevented.  However, rather than place severe restrictions on the rights of persons with disabilities through an extensive period of notice and opportunity to cure, other options should be considered.

States and their respective state bar associations could opt to impose stricter penalties for attorneys filing frivolous lawsuits under the ADA.  Coupled with these stricter penalties, state bar associations could also adopt mechanisms like thresholds for the number of lawsuits that can be filed with one plaintiff under the ADA before an investigation is triggered.  Alternatively, we could adopt requirements that prioritize injunctive relief over attorney’s fees or damages.  Such requirements would force parties to engage with each other and would reduce the number of businesses that can be subject to “drive-by” lawsuits.  Further, injunctive relief under the ADA would be consistent with the goals of truly achieving accessibility.  At the very least, if the Reform Act moves forward, it should be amended so that the notice and opportunity to cure period is significantly shorter in order to lessen the burden that would be shifted to persons with disabilities.

Finally, when it comes to accessibility we would all do well to remember that accessibility is a universal issue, not just a disability issue.  For example, stairs are an accommodation to people who are capable of walking to move between floors.  Despite the frustration of these “drive-by” lawsuits, the fact that these lawsuits exist serve as a reminder that we must continue the push for improving accessibility for all people.  With increased accessibility, there will be less opportunity to take unfair advantage of laws like the ADA.

Nicholas Stone graduated from Boston University School of Law in May 2018.  He plans to practice in Portland Oregon.

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Personalized Handgun Law Backfires, by Merissa Pico

July 31st, 2017 in Analysis, Legislative Oversight, State Legislation

Like a gun might, this New Jersey legislature’s bill backfired. In 2002, New Jersey’s democratically controlled legislature passed the Childproof Handgun Law, which aimed to promote the use of personalized handguns.

Personalized guns, or “smart guns,” as they are also known, use technology so the guns can only be used by an authorized or recognized user.gun

The 2002 law, which was signed into law by then Governor James McGreevey, requires all handguns sold in New Jersey to be smart guns within 30 months of personalized handguns becoming available anywhere in the country. The statute tasks the New Jersey Attorney General with determining which handguns qualify as smart guns and when smart guns have become available as set forth under the law. In other words, it would not matter if a smart handgun was actually sold or not; as long as a smart handgun was available for sale anywhere in the nation, the clock would start and within 30 months, all handguns sold in New Jersey would have to be smart guns.

According to the 2002 law’s sponsor, New Jersey State Senate Majority Leader Loretta Weinberg (D-Bergen), the 2002 law’s objective was to stimulate the “research, development and manufacture” of smart guns.

Ironically, but perhaps not surprisingly, the law has had the opposite effect: it inadvertently stunted the availability of personalized handguns nationwide. Fifteen years since its enactment, smart handguns are still not available for purchase in the United States. This is despite the fact that the technology exists; smart guns are available for sale in Europe and Asia.

Viewing the New Jersey law as an attack on the second amendment, the pro-gun sector has stifled any movement in making smart guns available. In addition to one gun store in California, in 2014, one Maryland gun storeowner, Andy Raymond, set out to sell the first smart gun in the nation. However, like the California store, Raymond decided not to go through with making smart guns available for sale, after both received hundreds of protests on his store’s Facebook page as well as death threats. If Raymond or the California store had successfully done so, the thirty-month clock in New Jersey’s 2002 law would have started, an effect that the pro-gun sector was well aware.

While it is clear that the 2002 law effectively entrenched the standstill on smart gun development, it should be noted that the pro-gun lobby has not necessarily embraced the smart gun initiative with open arms over the years.

Opponents of the 2002 law have objected to the state-mandated market for smart guns, believing that a market for smart guns, if there should be one, should emerge without any government intervention. Further, many gun owners have concerns about the reliability of the smart gun technology, fearing that the technology will falter when and if they need it to protect their lives.

An attempt to fix this legislative conundrum that New Jersey's legislature created for themselves and the rest of the country, the legislature in 2016 introduced a new bill, S816, to amend the 2002 law. Also sponsored by Senator Weinberg, S816 would repeal the portions of the 2002 law that would have made it illegal to sell traditional handguns once personalized hand guns become available, thereby effectively eliminating the technology freeze. Additionally, S816 mandates that firearms merchants and dealers maintain an inventory of at least one model of smart gun to sell. Under the bill, the Attorney General would determine on which smart guns would be acceptable.

The democratically controlled New Jersey senate approved the bill in February of 2016 by a vote of 21-13. New Jersey governor and former 2016 U.S. Presidential candidate, Chris Christie, pocket vetoed the bill in September of 2016. A pocket veto means that the governor does not return the bill to the New Jersey legislature; therefore, the veto cannot be overridden. In his strongly worded conditional veto message, Governor Christie said the new bill was the latest in the “relentless campaign by the Democratic legislature to make New Jersey as inhospitable as possible to lawful gun ownership and sales.” Believing that the new bill’s mandate is a constraint on business and “likely is unconstitutional under the Commerce Clause,” Governor Christie went on advocate for a full repeal of the 2002 law with no additional mandate.

With the bill having been pocket vetoed and sent back to the statehouse, the New Jersey legislature can either amend the bill to Governor Christie’s liking or it will die in the state senate. If the bill dies, the 2002 law will remain in place in its entirety without any amendment. Therefore, until it is amended or repealed, the law could continue to have the same stifling effect on nation-wide smart gun availability into the unforeseen future.

Senator Weinberg has publically offered to repeal the 2002 law in its entirety if the National Rifle Association (NRA), promised to not impede or block the “research, development, manufacture or distribution of this technology.” However, to date, there has not been any movement on this offer.

It is frequently said that the law lags behind technology. More often than not, this is true (see 1986 Electronic Communication Privacy Act). Yet, this time, the law and legislative process is not lagging behind technology, but rather, with full recognition and understanding, is choosing to stifle technology. Who knew that a little New Jersey law would have such an unintended consequence? For fifteen-years and counting, partisan division and policy differences have kept available technology out of reach from American citizens. Perhaps soon, the technology will become available under conditions favorable to all Americans, politicians and private citizens alike.

 

1498837364-1Merissa Pico is from Fort Lee, New Jersey and graduated summa cum laude from Boston University’s College of Communication in 2015 with a B.S. in Mass Communication Studies. She is expected to earn her J.D. from Boston University School of Law in 2018.  Merissa will be working at Ropes & Gray in New York City in the summer of 2017 and is looking forward to continuing to explore her interests in entertainment and communications law.

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Loopholes in the System: How Student Loan Litigation May Change Going Forward

January 28th, 2016 in Federal Legislation, Legislation in Court, Legislative Oversight

In June 2014, the Department of Education greatly reduced its funding from the for-profit institution Corinthian Colleges, which had received $1.4 billion in funding annually from the federal government. But serious concerns that Corinthian had mishandled the funds, redirecting them to creditors and other avenues rather than to students, led to multiple federal and state investigations. Finally, the DOE took action – it stopped giving the institution federal loans. In April 2015, cut off from these loans, Corinthian shut down the last of its campuses’ doors. Now, many Corinthian students are looking for help with the student loans they have been saddled with, and with nothing to show for it. The DOE, in June 2015, released on its website the two ways in which it plans to help students with loans related to their education at Corinthian. For students who were attending the closed down campuses, there is the option of loan forgiveness. The DOE is expanding the class of students eligible for loan forgiveness to include those who attended the school as far back as June 2014.

More strikingly, the DOE is making an unprecedented move in extending a loan forgiveness option for dept-of-ed-sealstudents under the “defense to repayment”. Defense to repayment claims are usually brought under state UDAP laws – Unfair and Deceptive Acts and Practices laws. These state level claims provide easier relief as they do not require proof of intent and reliance may be presume. However, this rule has yet to be enforced on a federal level – whether in the Corinthian case or any other direct loan dispute. In the past 15 years, the Department received a grand total of five claims under the ‘defense to repayment’ provision of the law. This is partly because, when the rule was promulgated there was no guidance on the procedures for filing, disputing and resolving a claim under defense to repayment. In December 2014, 12 U.S. senators, led by Elizabeth Warren submitted a letter to the Department of Education asking for clarification on defense to repayment. In response, the DOE is attempting to make the process easier for thousands of Corinthian borrowers by putting in place an application procedure.

In another unprecedented move, the Consumer Financial Protection Bureau worked with a buyer of partial Corinthian campuses and the DOE to secure a settlement valued at $480 million in debt relief for private student loan borrowers who attended Corinthian at the time of closing. Students who have private loans are also reassured that strong arm tactics – such as harassing calls and lawsuits – will not be used against them to collect on loans. These students will also have negative credit history erased from their credit reports. A broader lawsuit is currently still pending against Corinthian alleging predatory techniques were used to induce students to take out private loans.

There may be sufficient reason to invoke the “defense against repayment” option in the case of Corinthian colleges. But this may open the floodgates to other claims, especially in the for-profit education industry, that could fall under the defense. As the issue of burgeoning student loans in the millennial generation becomes a larger issue for the economy, this tiny loophole could create huge impacts in the coming years. More and more disgruntled students taking action may mean this “defense to repayment” could be extended to private, non-federal loans and public universities.

Recently, Obama’s administration has considering new rules and regulations allowing for easier debt relief. Several advocate groups have written to the DOE to make suggestions and provide guidance and encouragement in creating a clearer debt relief process. But the recent downfall of multiple for-profit educational institutions like Corinthian seems more a symptom of a toxic and unsustainable system stemming from overreliance on student loans; a system that forces the students to carry the burden for access to education. Relying on a short-term, half-formed relief strategy such as a “defense to repayment,” may just be akin putting a Band-Aid on a fatal wound.

Soni picSonam Bhagat is from Lowell, Massachusetts and graduated from Boston College in 2011, concentrating in Finance and Accounting. Sonam is expected to matriculate from Boston University School of Law in 2017. Sonam will be working for a large corporate law firm in the summer of 2016 and hopes to explore various areas of law, in order to better decide her course after graduation.

Road to Approval: Congressional Hurdles For President Obama’s Trans-Pacific Partnership Agreement

January 28th, 2016 in Analysis, Federal Legislation, Legislative Oversight

President Obama’s second term has been defined by increased usage of his foreign policy powers. Whether or not one approves of the agreements with Cuba and Iran, among others, these agreements will have enormous implications for the United States and members of the international community. On October 5, 2015, President Obama announced his administration’s newest agreement: the Trans-Pacific Partnership (TPP). The TPP, a partnership between the United States, Japan, and ten other Pacific Rim nations, promises to be the largest regional trade accord in history. The key features of the agreement include improving market access, advancing living standards around the world, promoting innovation and trade, and integrating economies across the Asia-Pacific region. The TPP is set to positively impact “40 percent of the global economy.” Before taking effect, however, each of the twelve nations must ratify the agreement. For President Obama, this means presenting the text to Congress for approval.

The Constitution confers upon the president the ability to make treaties, so long as he has “the Advice and Consent of the Senate.” This consent exists when two-thirds of Senators present concur (Article II, section 2) to the treaty. However, Presidents throughout history have preferred making international agreements through executive agreements rather than treaties. Executive agreements, as opposed to treaties, allow a president to bypass Senate approval. Although the president’s ability to make such agreements is nowhere mentioned in the Constitution, the Supreme Court has upheld their legality. See United States v. Belmont, 301 U.S. 324, 330 (1937) (holding that the Executive, as the sole organ of the government, has the authority to sign non-treaty agreements without the advice and consent of the Senate). Executive agreements, however, do not have the same legal status as treaties, unless they are ratified by the Senate. Executive agreements exist either as sole-executive agreements, made by the president alone if he is acting within his exclusive powers, and congressional-executive agreements, made by the president and authorized by Congress.

The TPP is an example of a congressional-executive agreement, and will need to be approved by a simple majority vote in both the House and Senate. However, before this vote happens, numerous procedural matters need to take place, according to the Congress-enacted Trade Promotion Authority. First, which has already occurred, negotiators from TPP countries must review the text of the agreement before the official text is released. Second, once the text was finalized, President Obama, on November 5, 2015, informed Congress that he intends on signing the TPP, which triggered a 90-day notice during which Congress may review the text (the public only gets 60 days to review the text). Third, once the 90-day period finishes in early February 2016, President Obama may sign the agreement. Fourth, once signed, President Obama must wait another 30 days before submitting the legislation to Congress. Fifth, since President Obama was given “fast-track authority” by Congress, Congress would not be able to make any amendments to the signed agreement, instead only being given the opportunity to reject or concur to the TPP. Thus, if everything goes according to President Obama’s plan, a vote could be held as early as March 2016. However, the House Ways and Means and Senate Finance committees could offer suggestions for changes during the 30 day period preceding final submittal to Congress. This could push the vote date back, potentially past the 2016 Presidential elections.

Diet Building Tokyo, Japan 1936

Diet Building
Tokyo, Japan 1936

The lengthy timeline for the TPP is likely realistic given the changes that will be proposed by the numerous proponents and opponents of the TPP. Depending on whose voice is louder, the TPP could be quickly approved by Congress or could theoretically be stalled until President Obama is no longer in office. Thus, it is important to analyze the points being put forth by the two groups.

Proponents of the TPP claim that TPP’s reduction in tariffs will make U.S. products more affordable abroad, which will increase U.S. exports dramatically. Second, the TPP will make the United States a more important player in a region that has long been tied with China. For this reason, it is no surprise that China has been excluded from the TPP Third, the TPP promises to impose “strict guidelines on environmental and labor standards”, which include wildlife-trafficking. Interestingly, the TPP proponents consist of bipartisan supporters, including Vice President Joe Biden and Republican Representative Kevin Brady, the new Ways and Means Committee Chairman, who stated that “[d]one right, this agreement will open a billion middle class customers to American goods and services.”

Although proponents are numerous, a fact which allowed for the approval of “fast-track authority” earlier this year, the President will need to convince opponents of the TPP in order to ensure passage of this agreement. Opponents, which include Presidential hopefuls Donald Trump and Bernie Sanders, are concerned over various points of the TPP. First, opponents claim that the TPP will have a massive impact on a large percentage of workers around the world because it could increase competition for low-wage positions. Second, opponents are concerned over protection of intellectual property of pharmaceutical companies, which has long been ignored abroad. Proponents, however, argue that the TPP will establish uniform rules on corporations’ intellectual property.

Although, thus far, everything seems to be going right for the Obama administration’s TPP, opponents are sure to stand in the way. Notably, U.S. Senator Orrin Hatch has stated that “[w]hile the details are still emerging, unfortunately I am afraid this deal appears to fall woefully short.” Whether this opposition statement stems from actual disagreement with the TPP or from dislike of the Obama administration, however, is hard to know. While opponents point to the TPP’s labor provisions as reasons to reject the TPP, other provisions seem to outweigh this potentially negative consequence. The TPP pushes for innovation, increased trade, and includes much needed protections for wildlife and the environment.

Though the TPP is sure to face intense debate in Congress, President Obama will likely do everything in his power to ensure the agreement’s passage. The approval of this massive economic agreement would cement President Obama’s place in history and would surely add to his legacy as a foreign policy-oriented President.  

Jeff Butensky picJeffrey Butensky moved from Argentina to Plantation, Florida and graduated from the University of Florida with a double major in Linguistics and Anthropology. He anticipates graduating from Boston University School of Law with a Juris Doctor in Spring 2017. Although Jeff has a diverse set of legal interests including corporate law, bankruptcy, and immigration, Jeff also hopes to be involved with legislation one day.