Tagged: Trump
Post Haste: Why Reform of the US Postal Service is a Matter of Urgent National Concern
President Trump has been antagonistic to the United States Postal Service since the early days of his administration. In his plan for government reorganization, he called for the privatization of the post office. He has tweeted that the post office should charge Amazon more to deliver packages. Most recently, he has threatened to veto COVID-19 emergency funding if it contains direct funding for the post office.
Ultimately, change is needed with regard to the postal service. However, that change needs to be an expansion in the role of the post office in public life rather than a diminution of its functions. Because the postal service has a universal service obligation to provide all aspects of service at an affordable price to all communities in the United States, it already represents a vital service to thousands of Americans who are not perceived as “profitable” to serve by private companies. Leveraging that power by expanding the role of the postal service can be a powerful boon to democracy and an agent of financial inclusion for underserved communities. Pending legislative proposals exist to address these concerns, and urgent action is needed. These proposed expansions to the role of the postal service require an additional legislative intervention to support its financial viability. To increase access, facilitate participation, and promote strong and healthy communities, three key legislative reforms to the post office are urgently needed.
Postal Banking
The first potential legislative reform is the reintroduction of postal banking. Prior to 1967, the post office served an important role in providing basic financial services to thousands of Americans in rural and underbanked communities. Because the post office is a universal service, ensuring access to reliable mail service everywhere in the country, it was uniquely situated to ensure access to financial services like access to small loans, checking and savings accounts, and basic transactional services to communities not deemed profitable for traditional financial institutions to serve.
In 2017, 6.5% of households in the United States, or nearly 8.5 million households, were unbanked – meaning they had no formal bank account—and an additional 24.2 million were underbanked. These individuals are therefore forced to fringe or informal financial institutions, which often more costly to them because of high interest rates and lack the federal protection and oversight of traditional financial service providers. Re-establishing postal banking would create a formal institution to serve the basic financial needs of these communities, allowing them a greater degree of financial inclusion and economic participation without resorting to check cashers, payday lenders, or other informal actors.
USPS OIG
Postal banking is a popular proposal with a historical precedent that can be reenacted to improve economic and financial inclusion for marginalized communities. Senator Gillibrand introduced legislation in 2018 to allow the postal service to conduct limited financial activities, but the bill was never heard in committee. Passing legislation similar to Senator Gillibrand’s bill would represent a key step toward improving access to financial services, and therefore financial inclusion and economic participation, for marginalized communities.
National Vote-By-Mail
The next key legislative reform to the postal service must be a federal move to facilitate national vote-by-mail. Election law is a largely a matter of state law, as states are empowered to set the particulars of elections within their jurisdiction subject only to minimal Constitutional requirements. States can and have taken the lead on expanding vote-by-mail; according to the National Council on State Legislatures, five states conduct all elections entirely by mail, and another three states allow counties to opt into vote-by-mail for all elections. In total, 21 states allow vote-by-mail elections in some capacity. However, the crisis of the novel coronavirus outbreak has underscored the need to take federal action as evidenced by the Supreme Court’s refusal to extend the deadline for absentee ballots in Wisconsin’s April election and the at least 36 resulting cases.
Senator Klobuchar introduced legislation that, among other things, would allow for expanded absentee vote-by-mail in every state during emergency conditions. While the legislation represents a good first step towards federal action on uniform access to vote-by-mail, it is limited to declared emergencies and therefore does not go far enough. In order to manifest the full benefits of vote-by-mail – most notably increased ease of and access to voting, therefore increasing turnout and civic participation – a more comprehensive bill is needed. The Universal Right to Vote by Mail Act of 2009, which would have made it easier to vote by mail by prohibiting states from imposing additional requirements on vote-by-mail eligibility, represents the kind of sweeping, permanent reform that is necessary to facilitate broad access to voting, and therefore civic and democratic participation, among all communities in a safe and healthy manner.
Removing the Pension Prefunding Requirement
For the benefits of these reforms to fully manifest, it is crucial that the post office is financially viable. This requires a final legislative reform – removing the pension prefunding requirement imposed on the postal service in the Postal Accountability and Enhancement Act of 2006 (PAEA).
While advocates of privatization claim that the post office is losing money, those claims fail to capture the full context of the legal predicament faced by the office. PAEA requires the postal service to prefund employee pensions until 2056, a requirement imposed on no other federal agency. Removing this requirement and allowing the post office to adopt the pay-as-you-go model used by the private sector and other federal agencies would result in over $5 billion in additional cash flow to the service. In order to support the other changes to the role of the postal service, this prefunding requirement must be lifted. This would allow the postal service to remain financially viable in its greater capacity without requiring service price increases.
These reforms have champions, including Senator Gillibrand who continues to speak out vociferously in support of the postal service and its potential to facilitate civic and economic participation and to improve access and inclusion for communities across the country. The trio of reforms described here would raise the profile of the postal service and increase its role in the lives of thousands of people across the country. With the reintroduction of postal banking and expansion of voting by mail, a financially bolstered United States Postal Service can support strong communities in a way that private industry has been unwilling or unable to do. Decades of financial exclusion and disinvestment in rural and low-income neighborhoods and the global crisis of the coronavirus have demonstrated that we, as a country, cannot wait to act. Reinvigorating the postal service and its role in society are of urgent national concern.
Jordan Neubauer anticipates graduating from Boston University School of Law in May 2021.
Emergency Actions Related to Paid Sick Leave Amidst Coronavirus
Coronavirus COVID-19 has affected the United States unlike any other national crisis: schools and higher education alike have shifted to virtual classes, millions of employees are working from home, restaurants and gyms are closed down and travel has stopped abruptly. Americans are being told to social distance for fear of spreading the virus. The future seems unclear, as there is no established end date in sight. The United States Congress attempted to respond accordingly passing legislation quickly in response to this crisis. The legislation has attempted to mitigate issues surrounding paid family leave. At this time, paid sick leave is essential to prevent sick people from being out in society, and workers need the opportunity to stay home or the transmission of Coronavirus (COVID-19) will steadily increase. It is important for the health of the public and of the economy, that Coronavirus (COVID-19) decrease, so the hospitals will no longer be at risk of being overcapacity and society can resume as normal.
Bill H.R.6201 - Families First Coronavirus Response Act was one of the first pieces of legislation aimed to restore the country. This bill was quickly signed into law as Public Law No: 116-127. According to the National Law Review, “the bill [went to the] Senate, on March 16 and [easily passed with few revisions]; President Trump publicly expressed support for the bill and in addition to various public health preparations, the bill includes many provisions that will directly impact employers.
“This [law] responds to the coronavirus outbreak by providing paid sick leave, free coronavirus testing, expanding food assistance, unemployment benefits, and requiring employers to provide additional protections for health care workers. Specifically, the law provides FY2020 supplemental appropriations to the Department of Agriculture (USDA) for nutrition and food assistance programs, including the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC); the Emergency Food Assistance Program (TEFAP); and nutrition assistance grants for U.S. territories.
At this time, paid sick leave is essential to prevent sick people from being out in society. For many Americans unpaid sick leave is not a viable choice. The need to earn money and stay on top of bills often overrides the desire to self-quarantine and get healthy. It is a problem of collective action. However, the severity of COVID-19 shows the importance for Americans to self-quarantine to prevent overwhelming the health care system as shown by this graph:
If sick workers are incentivized to stay at home during an illness as serious as COVID, this will limit the spread of the illness, and hopefully allow Americans to recover at home rather than filling up emergency rooms. Paid sick leave can “flatten the curve,” and although such measures prolong the existence of the virus, the effect on emergency medical systems are more manageable.
The Families First Coronavirus Response Act provides an employee may take up to 12 weeks of paid, job-protected leave if the employee:
- is complying with a requirement or recommendation to quarantine due to coronavirus exposure or symptoms, and cannot work from home
- is caring for an at-risk family member who is quarantining; or
- is caring for the employee’s child if the child’s school or place of care has been closed due to public health emergency.
However, the first 14 days of the leave may be unpaid. Employees may choose to use any accrued paid time off, including vacation and sick leave, to cover the initial 14-day period, but employers may not require them to do so. After the 14-day period, the employer must pay full-time employees not less than two-thirds of the employee’s regular rate for the number of hours the employee would otherwise normally be scheduled. For salaried employees, employers must pay two-thirds of the base salary for the weeks remaining after the initial 14-day period.
Violating the Emergency Paid Sick Time Act will be treated as seriously as a Violation of the Fair Labor Standards Act of 1938 (29 U.S.C. §206) (FLSA), meaning that the employers might be subject to substantial penalties under that Act including, but not limited to liquidated damages and fines, among other penalties. Additionally, the law attempts to expand food assistance and unemployment benefits. The law modifies USDA food assistance and nutrition programs to:
“allow certain waivers to requirements for the school meal programs, suspend the work requirements for the Supplemental Nutrition Assistance Program (SNAP, formerly known as the food stamp program), and allow states to request waivers to provide certain emergency SNAP benefits.” You can access more information about this here.
Additionally, the law provides, “$500 million to provide access to nutritious foods to low-income pregnant women or mothers with young children who lose their jobs or are laid off due to the COVID-19 emergency.” This extra effort is very important in order to support American women and children at this time. Moreover, according to the government sources the law also establishes a federal emergency paid leave benefits program. Additionally, the law also aims to expand unemployment benefits and provide grants to states for processing and paying claims, requires employers to provide paid sick leave to employees, establishes requirements for providing coronavirus diagnostic testing at no cost to consumers, and to temporarily increase the Medicaid federal medical assistance percentage (FMAP).
This pandemic has been unprecedented in our nation’s history. U.S. legislators have scrambled to address the COVID crisis and mitigate the damage to both the health of the public and the economy. The Families First Coronavirus Response Act assists multiple facets of life affected by the virus by providing paid sick leave and free coronavirus testing, expanding food assistance and unemployment benefits, and requiring employers to provide additional protections for health care workers. The law does a good job of solving the collective action problem surrounding this. Additionally, it will directly assist the hospitals from becoming over capacitated. Ensuring that infected citizens aren’t compromised or pressured to go to work is a critical component of defeating the spread of this virus.
Diana Alexandra Martinez anticipates graduating from Boston University School of Law in May 2021.
Of Migration and Refugees: The Failure of Republican Deterrence Policy
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 Trump’s 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 crisis” and 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 campaign “to 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 you’ve 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.
The U.S. Postal Service is Staying Alive (for now)
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.
Mental Illness and Gun Violence: What’s Really Responsible?
You’ve heard it all before. In fact, you’ve heard the same arguments repeated back and forth so many times you have memorized them yourself. The cycle goes like this: There’s a mass shooting, then in the tragic aftermath, the liberal and conservative pundits begin repeating their arguments left and right. Usually, on the conservative right there are calls for mental health reform and on the left, liberals agree that we need to address mental health, but point to gun access as the key issue to prevent these tragedies from happening. The rest of us, the general population, are left somewhere in between. We point fingers like everyone’s to blame, but we take action like nobody is responsible. That is to say, we take very little action at all.
Although this cycle has repeated itself to the point of feeling like a broken record, it’s important that we not get stuck like one. After all, the definition of insanity is doing the same thing over-and-over again while expecting a different result. Where some blame the mentally ill and some blame guns, it is important to step back and reframe our arguments to see the issue of gun violence in a different light. Maybe the solution, as is often the case, lies somewhere in between.
The tragedy in Parkland has energized this debate to unprecedented levels, but has also brought with it many familiar arguments. In particular, recent calls from President Trump to strengthen limitations on the ability of the mentally ill to access firearms gives us cause to reevaluate his premise that mental illness is associated with gun violence. President Trump’s critique is founded on a commonly shared belief among the majority of Americans. According to a Pew Research poll in 2017, 89% of people across the political spectrum favor placing increased restrictions on the ability of the mentally ill to purchase firearms. This commonly held belief across the political spectrum forces us to ask ourselves: What is the real relationship between mental illness and gun violence?
What do the Numbers Say?
The evidence suggests that we may be biased when it comes to our perceptions of the mentally ill and the potential for persons dealing with mental illnesses or disorders to exhibit violent tendencies. In fact, a 2013 national public opinion survey (p.367) found that 46% of Americans believe that persons with mental illness are “far more dangerous than the general population.” However, the public perspective is vastly distinct from reality. Another study (p.241) demonstrates that between 2001 and 2010, “fewer than 5% of the gun-related killings in the United States… were perpetuated by people diagnosed with mental illness.” People are far more likely to be killed by a person with a gun that does not have a mental illness, than someone that does have a mental illness.
While mental illness is not strongly correlated with gun violence, there are other conduct measures that appear to be strong predictors of such violence. Three conduct measures in particular that are powerful are past acts of violence/criminal history, a history of domestic violence, and substance abuse.
First, with regard to a history of violence, the American Psychology Association issued a report (see p.8) that concluded based on longitudinal studies, “The most consistent and powerful predictor of future violence is a history of violent behavior.” One article from Wisconsin Public Radio affirms this trend in reporting that for gun homicides in Milwaukee about, “93 percent of our suspects have an arrest history.” Although the Milwaukee sample is small and not entirely representative of the entire United States, such a high correlation is worthy of our attention in considering factors for reevaluating our gun policies.
Second, when it comes to the correlation between domestic violence and mass shootings or gun violence, the evidence is even stronger. According to a study quoted in the New Yorker, “Of mass shootings between 2009 and 2013, 57 percent involved offenders who shot an intimate partner and/or family member.” Further, a report from Everytown for Gun Safety shows that persons with a history of domestic violence account for “54 percent of mass shootings between 2009 and 2016.”
Third, with regard to substance abuse, a study (p.242) by Dr. Jonathan Metzl, an often quoted figure in studying the causes of gun violence in the United States, found that, “[A]lcohol and drug use increase the risk of violent crime by as much as 7-fold, even among persons with no history of mental illness.” According to the same study, “serious mental illness without substance abuse is ‘statistically unrelated’ to community violence.” In other words, substance abuse increases an individual risk of violence in general, including an increased risk of gun violence.
States Offer Pragmatic and Nuanced Solutions
However, correlation does not equal causation. Many of the current studies on the causes of gun violence and mass shootings face limits (p.240) in this particular regard. However, the low statistical correlation indicated in multiple studies between mental illness or disorders and gun violence are informative. The fact that there are other risk factors that are strong predictors of violence generally and gun violence specifically point to where our attention is likely better directed in trying to rework gun laws in a manner that will work for everyone.
The Giffords Law Center to Prevent Gun Violence points to one such unique legal mechanism adopted in Oregon, Washington and California, which have adopted laws for Extreme Risk Protection Orders (“ERPOs”). These laws allow family members or law enforcement officers to petition a court to keep guns away from someone going through a crisis. The laws are geared toward the principle that family members are best able to gauge changes in an individual’s behavior that could pose a serious risk of harm. Petitioners under these laws still have the burden of providing sufficient proof that the individual poses a risk of danger to themselves or others. ERPOs are also only temporary, but may vary in length. For longer protective orders, more compelling evidence must be offered that the person poses a risk of harm to themselves or others.
Oregon offers another pragmatic solution in its closing of the “domestic abuser loophole” through passage of a recent state law. Under the 1996 Domestic Violence Offender Gun Ban, domestic abusers are banned from owning or possessing a gun. However, the federal ban only applies to someone if they are married, living with, or have a child with the victim of the abuse. The wording of the law creates the “domestic abuser loophole,” which means that someone who is not living with their significant other and does not meet any of the other mentioned criteria, but who abuses their significant other, can still buy a gun. Oregon’s new law prohibits anyone convicted of a crime of domestic violence from owning or possessing a gun, regardless of whether or not that person lives with their significant other.
Oregon State Capitol
Salem, 1938
These new state laws are just examples of a number of other pragmatic and nuanced policy solutions that are geared toward preventing future gun violence while avoiding burdensome restrictions on the Second Amendment rights of the vast majority of Americans. Such solutions demonstrate our capacity to tackle the problem of gun violence in new and creative ways, while still preserving individual freedoms. Finally, these laws represent effective solutions that are based on empirical evidence about true risk factors for gun violence and not on ill-founded stigmas. A path forward on fixing our gun laws exists, but to move forward we must set aside our preconceived notions and work together to promote innovative solutions that protect both our rights and our safety.
Nicholas Stone graduated from Boston University School of Law in May 2018 and plans to practice in Portland Oregon.
Breaking Chain Migration: An Affront to the New Colossus?
In February 2018, the United States Citizenship and Immigration Services, the federal agency that grants green cards and U.S. citizenship, revised its mission statement by striking its characterization of the United States as a “nation of immigrants.” The phrase dates back to the 1800s and was popularized by President John F. Kennedy, who sought to remind Americans of the monumental contributions that immigrants have made to America. The removal of this iconic language is consistent with the President Trump’s “America first” agenda, including efforts to limit immigration by proposing to end or alter the Deferred Action for Childhood Arrivals (DACA) program, ban immigration from several majority-Muslim countries, and build a wall along the Mexican border. This anti-immigration attitude has also led to attempts to curtail the family visa program, which allows U.S. citizens and permanent residents to sponsor certain family members applying for lawful permanent residency in the United States.
President Trump recently made immigration policy a priority with congressional leaders at Camp David, emphasizing his desire to end the “horrible system” of family sponsored visas, which he refers to as “chain migration.” Now, in exchange for softening their proposal to deport DACA recipients, President Trump and the Republicans are targeting the lower priority F3 and F4 category family visas, arguing that they threaten national security. In fact, President Trump blamed chain migration, also known as “family reunification,” for the terrorist attack on New York City in December 2017. The perpetrator of that attack entered on an F43 visa, the lowest priority family visa category reserved for children of parents who are sponsored by a direct relative who is a U.S. citizen. While the U.S. issues an unlimited number of visas to close relatives of U.S. citizens, the number of visas allotted for extended family, or “chain migrants,” is capped at 226,000 per year.
The political rhetoric surrounding chain migration has stoked fears about national security and who is entering the United States through family sponsored visas. But historically, the concept of chain migration was actually simpler and less nefarious than it has recently become. The term “chain migration” was coined as a politically neutral term in the 1960s and stands for the proposition that people are more likely to move to where their families live. Although opponents of family sponsored immigration often use “chain migrant” to denote any immigrant relative of a green card holder or U.S. citizen, the modern technical usage refers to extended relations and not immediate family.
Interestingly, conservatives originally supported family sponsored immigration through the Immigration and Naturalization Act of 1965. The Act replaced the nationality quota system, which many viewed as overtly racist, with the family reunification program. Around 1960, immigration from Europe began to decline as the continent became more prosperous. Conservatives hoped that the new program would encourage European immigrants to bring their families to the United States. Today, only about eleven percent of immigrants are European, with forty-four percent coming from Eastern Europe, including First Lady Melania Trump and her parents. Meanwhile, the overall majority comes from Asia and Latin America.
While concerns about protecting national security are real, the visa category is not as important as the screening process itself. The screening process for family sponsored visa applicants is extensive. Applicants must submit to background checks and be evaluated on the likelihood that they will become an economic liability to the state. In addition, immigrants must have a financially stable relative vouching for them, with a household income of at least 125% of the poverty line including the visa applicant. Finally, because of nationality caps and visa backlogs, it can take many years to bring extended relatives to the United States. This limits the potential to build chains of immigrants, especially from countries like Mexico that have many more qualified applicants than distributable visas.
Although no safeguard is perfect, the potential for chain migration to overwhelm the U.S. is more limited than the Administration’s rhetoric would suggest. Unfortunately, this raises the question whether the fierce opposition to immigrant families is truly about security, or whether a fear of cultural and ethnic change is prompting the effort to end the family reunification program.
As of 2014, Hispanics and Asians are the fastest growing groups in the nation for two separate reasons. Hispanics have a higher fertility rate once they arrive in the United States, while Asian immigrants arrive in the greatest numbers. Meanwhile, the percentage of white Americans is declining. All of this suggests that immigration is making America more diverse and less familiar to white Americans, who make up eighty-one percent of the 115th Congress but just sixty-two percent of the U.S. population. In the House of Representatives, Democrats have eighty-three minority members while the Republicans have only twelve, despite holding forty-five more seats as of January 2018.
It is unclear how the Democrats will handle Republicans’ demands for ending the F3 and F4 family sponsored visa programs. Eliminating those visas may be the price of protecting the 800,000 individuals enrolled in DACA. However, Republicans have also run into trouble with this negotiation tactic. As recently as April 25, 2018, a federal judge in the D.C. Circuit decided that the DACA program must remain intact unless the Department of Homeland Security can explain why DACA is “unlawful” within ninety days. If the courts uphold DACA then its effectiveness as a bargaining chip against the family sponsored visa program is greatly diminished.
As an alternative to chain migration visas, President Trump has proposed both cutting immigration overall by forty-four percent over the next fifty years, and shifting to a merit-based immigration system. Republicans have also introduced bills to limit family sponsored immigration and increase the number of merit-based employment visas. Democrats are unlikely to accede to cutting immigration so drastically, and shifting to a merit-based system could imply breaking up families. However, the merit-based system has been successful in Canada, where emphasis on immigrant contributions has popularized immigration as a whole. In fact, Canadians feel significantly more positive about immigration than do many Americans. Canada proportionally accepts about three times more immigrants than the United States, but saves about two-thirds of the slots for merit-based applicants. This may have economic advantages, but it raises humanitarian concerns. On the other hand, if the alternative is slashing immigration across the board, then it might be a necessary compromise. Switching to a merit-heavy system, however, may signal an end to the democratic values of an America that once prided itself, at least superficially, on welcoming the tired, poor, huddled masses yearning to breathe free.
Caitlin Britos anticipates graduating from Boston University School of Law in May 2019.
What are the Merits of a Merit-Based Immigration System?
In early November 2017, a man drove a truck onto a bike path in New York, killing eight and injuring thirteen. The suspect was a lawful permanent resident who received his immigrant visa through the diversity lottery program. This program allocates fifty thousand immigrant visas for foreign nationals from “countries with historically low rates of immigration to the United States.” Just a month later, in early December 2017, another man attempted a terrorist attack in New York using a homemade pipe bomb, injuring five. This suspect also was a lawful permanent resident, but he received his immigrant visa through the family-based immigrant visa category that allows siblings of U.S. citizens to immigrate to the U.S. based on that relationship.
Although immigration has arguably never left the spotlight in recent years, these two events brought it to the forefront once again. More specifically, President Trump used both instances immediately as an example of why our immigration system needs an overhaul. The viewpoint of the President and many others is that these events indicate immigration must be reformed to permit fewer routes to lawfully immigration into the United States. President Trump’s plan is to limit family-based immigration to only spouses and minor children of U.S. citizens (it now includes extended family like siblings or parents of U.S. citizens) and to introduce a points-based immigration system to “protect U.S. workers and taxpayers.” To do so, he has thrown his support behind the RAISE Act (House bill 3775 and Senate bill 1720) two substantially similar bills that seek to “establish a skills-based immigration points system, to focus family-sponsored immigration on spouses and minor children, to eliminate the Diversity Visa Program, [and] to set a limit on the number of refugees admitted annually to the United States.” Neither version of the bill has left committee. Currently, foreign nationals can immigrate to the U.S. through the diversity lottery program, through family sponsorship, through employment sponsorship, or as a refuges or asylum seeker.
The proposed skills-based program is not the first of its kind. Canada was the first country to introduce a points-based system, with Australia and the United Kingdom following. Generally, these programs allocate points for certain attributes, such as age, education, and English-speaking ability. The United States program would allocate points based on age, level of higher education, English ability, job offer, and “extraordinary achievements.” Higher points are granted for applicants who are in their late 20s (i.e. of prime working age), who have earned a graduate or professional degree, who speak English fluently, and who have a high salaried position offered to them. Extraordinary achievements, like Nobel prizes or Olympic medals, offer additional points. Furthermore, points can be allocated for significant investment in the U.S., a revised version of the “EB-5” employment based category, which currently applies to foreign nationals that have invested $1 million in the U.S. Under the RAISE system, about 2% of Americans would qualify for an immigrant visa.
Professors Ayelet Shachar and Ran Hirschl argue that “[p]icking winners, in this context, comes very close to resembling headhunting practices, turning immigration officials and other policymakers, as well as public and private actors with devolved authority, into enterprising recruiters of super talent.” (at 87) These merit-based programs ultimately “prioritize brains, talent, and special skills.” (at 100) Immigration attorneys Chris Gafner and Stephen Yale-Loehr argue that “the point lottery should be a meritocracy based upon each applicant’s ability to contribute to the national interest. (at 210, emphasis added) They argue it would provide a more objective basis for adjudication of immigrant visa applications, “ensur[ing] that qualifying immigrants have the tangible qualities and knowledge that will truly enhance U.S. interests.” (at 208) The argument for merit-based immigration is that it supports national interests by attracting foreign nationals that are more likely to contribute to the U.S.
However, the points-based system is not without its criticisms. First, there are human rights concerns. Specifically, this system restricts freedom of movement and discriminates against large classes of foreign nationals, both of which are designated as human rights under international law. (at 286) Second, this restricts the movement of human capital by limiting the number of foreign nationals who can lawfully immigrate (or even enter) the U.S., which is not necessarily a sound economic policy. (at 289) Finally, it is not entirely clear that these systems have been effective in those countries in which it has been implemented. For instance, the Canadian program has become notorious for extremely long waiting times and for underutilizing the highly skilled foreign nationals it attracted. In the UK, businesses have asked for special treatment or exceptions because of the need for foreign workers that would not otherwise qualify under the point system. Thus, despite its lofty goals, the RAISE Act is not without flaws.
This bill lacks support in Congress. Additionally, Trump has been criticized for the timing of his support for RAISE: “Trump's immediate labeling of the attack as a terrorist act and his calls for policy actions contrasted with his responses to the violence and a killing by white supremacists in Charlottesville, Va., in August — Trump wouldn't blame the neo-Nazis solely and said then he doesn't rush to discuss incidents without the facts — and to the mass killings in Las Vegas on Oct. 1, after which he said it was too soon to discuss gun laws.”
Furthermore, this is not the only route to immigration reform. In the House, the Fairness for High-Skilled Immigrants Act offers an expanded immigration system. This bill eliminates per-country numerical limitations for employment-based visas. To immigrate through employment sponsorship, the current system allocates a limited number of visas based on the foreign nationals’ country, with a significant backlog for foreign nationals from certain countries, namely India, China, and the Philippines. This could leave foreign nationals waiting to up to ten years to complete the immigration process. For example, certain Indian nationals who began the immigration process in 2006 are still waiting for visas to be available. By eliminating the per-country numerical limitations, those Indian nationals would finally be able to receive lawful permanent resident status in the United States. This bill also increases the numerical limitations set for family-based immigrant visas. Like RAISE, this bill is still stuck in committee.
Neither bill seems to be garnering much attention, even with the President’s support for RAISE. There is an irony in the nation of immigrants trying to significantly restrict immigration. Of course, the issue is not as simple as turning away immigrants. However, at its core, that seems to be what RAISE is doing. The Fairness for High-Skilled Immigrants Act may not solve the problem either. It could be more of a temporary fix than a permanent solution or it could introduce different issues. Overall, neither bill seems to satisfy the need for immigration reform. They both propose reform while lacking a resolution to the controversial issue that prevails in the public eye.
Nancy Williams anticipates graduating from Boston University School of Law in May 2019.
Whose Legislation is it, Anyway?
It seems that after every mass shooting, the gun control debate transforms into a discussion about mental illness. Was the shooter mentally ill? If so, some gun rights advocates will deflect from the issue of gun safety and argue for mental health reform while gun control activists will argue for stricter gun laws–specifically those that make it harder for people with mental illnesses to buy guns. The most recent Las Vegas and Parkland shootings are no different. Despite the copious research suggesting that the existence of a mental illness correlates much more strongly with suicide than it does with interpersonal crimes, mental illness is once again being deemed the culprit. Of note is Speaker Ryan’s call for mental health reform, which he described as a “critical ingredient” in preventing further mass shootings. Ryan was subsequently questioned as to whether he thought repealing the Social Security Rule (a rule that expanded background checks to include Social Security data on people with mental illnesses) was a mistake. When pressed on the issue, Ryan argued that the Obama administration rule was an infringement on Second Amendment rights. President Trump has also advocated more treatment for people with mental illnesses as a solution to gun violence.
Although some federal laws designed to prohibit gun access to citizens with mental illnesses exists, it is
limited and under-enforced. Following the shooting at Virginia Tech, President Bush signed the NICS Improvement Amendments Act of 2007 into law, which attempted to identify individuals who are unqualified to possess guns due to mental illnesses or criminal backgrounds. This law proved to be inadequate; most notably when a mentally ill man, Adam Lanza, killed 20 first grade students and six teachers at Sandy Hook Elementary School in 2012. In response, President Obama proposed the Social Security Rule, which added more mental health records to the national background check system but was removed by Republicans in Congress under the Congressional Review Act in February of 2016.
There is a wide political divide in the gun control arena, with 79% of Democrats agreeing with the statement “it is more important to control gun ownership than protect gun rights,” compared to only 9% of Republicans. In fact, this divide has widened substantially since 2012, when 62% of Democrats and 21% of Republicans agreed with the statement.
However, despite this deep division, the issue of gun restrictions for those with mental illness stands as a unique common ground. According to a Pew Research poll from June 2017, 89% of both Republicans and Democrats support restrictions that would prevent people diagnosed with a mental illness from purchasing guns. No other gun policy proposal was found to have the same kind of bipartisan support, though barring gun purchases by people on no-fly lists and background checks for private sales and at gun shows come close.
Even more striking is the support for preventing people with mental illnesses from obtaining guns among gun and non-gun owners. Again, there is wide agreement amongst the two groups: 89% of both gun owners and non-gun owners support this policy proposal. Again, there is no other policy proposal that garners the exact same support amongst gun-owners and non-gun owners. Moreover, 82% of those who say it is more important to protect gun rights rather than control gun ownership actually favor laws that prevent the mentally ill from buying guns, compared with 77% support amongst those who say it is more important to control gun ownership.
Given that the policy restricting access to guns for those with mental illnesses is so widely accepted amongst Democrats and Republicans, gun owners and non-gun owners alike, why don’t we have a more robust policy in place?
One hypothesis is the National Rifle Association’s opposition to this type of gun control proposals and their generous campaign contributions to Republican politicians. In the 2016 election cycle, the NRA gave over $77,000 to the Republican National Committee, and $838,215 to individual federal congressional candidates. In addition, the group spent over $30 million in support of Donald Trump’s presidential campaign, more than any other outside group, according to the Center for Responsive Politics. Opensecrets.com, a campaign finance accountability website, wrote that “[t]his election cycle, the NRA spent more than $52 million—a number that will rise as final campaign finance figures are tallied — to carry on its effort to increase Republican control of government.” In a news article following“The NRA, of course, was among the earliest and staunchest supporters of Trump’s presidential bid. We thank him for his quick action on this measure and look forward to working with him and the pro-gun majorities in Congress to protect Americans’ Second Amendment rights.” Trump responded at the NRA convention in April where he stated “You came through big for me, and I am going to come through for you.”
As it turns out, even NRA members support legislation that prevents those with mental illnesses from purchasing guns. A July 2017 Pew Research poll that controlled for partisanship found that 79% of Republican members of the NRA support this policy proposal. However, NRA members also report a general level of satisfaction with the organization’s political authority. Only 9% of NRA members say that the organization has too much influence over gun laws and about six in ten members say that they are satisfied with the amount of influence that the organization has over gun laws.
Thus, it seems the future for the gun debate may be determined not by the popularity of the ideas proposed, but by the strength of Americans’ allegiance to a very powerful group in Washington. Either that, or these ironies tainting the gun debate remain a mystery.
Jessica Goldman anticipates graduating from Boston University School of Law in May, 2019.
Legislator of the Year– Senator John McCain
John McCain has served in the United States Senate for nearly 31 years, and is probably due a lifetime achievement award. This award, however, is not for his distinguished service in the US Navy, nor for his many accomplishments over three decades in Congress, nor for the honorable manner in which he ran for and lost the Presidency. Springsteen and U2 don't win lifetime achievement awards because they keep turning out relevant hits and earning new generations of fans. Likewise, Sen. McCain wins this year's award for his ringing call over the summer for Congress to return to regular order, backed up by his courageous break with his party during the Affordable Care Act repeal vote.
In late July, Sen. McCain returned to the the Senate to cast a critical vote to proceed to debate on the Senate's Obamacare repeal legislation. Sen. McCain, who had just disclosed that he was diagnosed with an aggressive form of brain cancer, then offered a passionate plea to his fellow senators:
"I've known and admired men and women in the Senate who played much more than a small role in our history, true statesmen, giants of American politics. They came from both parties, and from various backgrounds. Their ambitions were frequently in conflict. They held different views on the issues of the day. And they often had very serious disagreements about how best to serve the national interest.
"But they knew that however sharp and heartfelt their disputes, however keen their ambitions, they had an obligation to work collaboratively to ensure the Senate discharged its constitutional responsibilities effectively. Our responsibilities are important, vitally important, to the continued success of our Republic. And our arcane rules and customs are deliberately intended to require broad cooperation to function well at all. The most revered members of this institution accepted the necessity of compromise in order to make incremental progress on solving America's problems and to defend her from her adversaries.
"That principled mindset, and the service of our predecessors who possessed it, come to mind when I hear the Senate referred to as the world's greatest deliberative body. I'm not sure we can claim that distinction with a straight face today.
"I'm sure it wasn't always deserved in previous eras either. But I'm sure there have been times when it was, and I was privileged to witness some of those occasions.
"Our deliberations today -- not just our debates, but the exercise of all our responsibilities -- authorizing government policies, appropriating the funds to implement them, exercising our advice and consent role – are often lively and interesting. They can be sincere and principled. But they are more partisan, more tribal more of the time than any other time I remember. Our deliberations can still be important and useful, but I think we'd all agree they haven't been overburdened by greatness lately. And right now they aren't producing much for the American people.
"Both sides have let this happen. Let's leave the history of who shot first to the historians. I suspect they'll find we all conspired in our decline --either by deliberate actions or neglect. We've all played some role in it. Certainly I have. Sometimes, I've let my passion rule my reason. Sometimes, I made it harder to find common ground because of something harsh I said to a colleague. Sometimes, I wanted to win more for the sake of winning than to achieve a contested policy.
...
"Our system doesn't depend on our nobility. It accounts for our imperfections, and gives an order to our individual strivings that has helped make ours the most powerful and prosperous society on earth. It is our responsibility to preserve that, even when it requires us to do something less satisfying than 'winning.' Even when we must give a little to get a little. Even when our efforts manage just three yards and a cloud of dust, while critics on both sides denounce us for timidity, for our failure to 'triumph.'
"I hope we can again rely on humility, on our need to cooperate, on our dependence on each other to learn how to trust each other again and by so doing better serve the people who elected us. Stop listening to the bombastic loudmouths on the radio and television and the Internet. To hell with them. They don't want anything done for the public good. Our incapacity is their livelihood.
"Let's trust each other. Let's return to regular order. We've been spinning our wheels on too many important issues because we keep trying to find a way to win without help from across the aisle. That's an approach that's been employed by both sides, mandating legislation from the top down, without any support from the other side, with all the parliamentary maneuvers that requires.
...
"I voted for the motion to proceed to allow debate to continue and amendments to be offered. I will not vote for the bill as it is today. It's a shell of a bill right now. We all know that. I have changes urged by my state's governor that will have to be included to earn my support for final passage of any bill. I know many of you will have to see the bill changed substantially for you to support it.
...
"Why don't we try the old way of legislating in the Senate, the way our rules and customs encourage us to act. If this process ends in failure, which seem likely, then let's return to regular order.
"Let the Health, Education, Labor, and Pensions Committee under Chairman Alexander and Ranking Member Murray hold hearings, try to report a bill out of committee with contributions from both sides. Then bring it to the floor for amendment and debate, and see if we can pass something that will be imperfect, full of compromises, and not very pleasing to implacable partisans on either side, but that might provide workable solutions to problems Americans are struggling with today.
"What have we to lose by trying to work together to find those solutions? We're not getting much done apart. I don't think any of us feels very proud of our incapacity. Merely preventing your political opponents from doing what they want isn't the most inspiring work. There's greater satisfaction in respecting our differences, but not letting them prevent agreements that don't require abandonment of core principles, agreements made in good faith that help improve lives and protect the American people.
...
"The success of the Senate is important to the continued success of America. This country --this big, boisterous, brawling, intemperate, restless, striving, daring, beautiful, bountiful, brave, good and magnificent country -- needs us to help it thrive. That responsibility is more important than any of our personal interests or political affiliations."
A few days later, Sen. McCain carried out his promise to vote against a bill that he continued to see as an "incomplete shell." His vote doomed the effort to "repeal & replace" the Affordable Care Act.
Amazingly, after being elected to Congress as a Reagan Republican, and running as the GOP candidate for President, Sen. McCain now has a higher favorability among Democrats and independents than Republicans. In December 2017, a CCN poll showed 68% of Democrats and 48% of independents had a favorable opinion of the Senator, whereas only 46% of Republicans felt the same. In this toxic political time, some Republicans even whisper that Sen. McCain is a RINO, a "Republican In Name Only," especially after his health care vote in August. That is truly sad.
What is more conservative than demanding Congress, the branch that has the greatest capacity to do good or harm to the Republic, operate by its own time-honored traditions and rules and subject major bills to bi-partisan scrutiny and amendment before passage? Many Republicans railed against these practices when former Democratic Leader Harry Reid recklessly used the "nuclear option" to end most judicial filibusters, and routinely "filled the tree" to prevent consideration of Republican amendments. Yet once the GOP gained control of the Senate, they too placed ideology and winning over creating bipartisan agreement on important issues.
A strong functioning Congress is especially important now. President Trump is a small man—seemingly devoid of ideals or morals. He cares nothing for policy details, but just his own image and “winning†deals. His “leadership†has demoralized executive agency personnel and harmed the nation's image oversees. Senators should try to emulate the legends that went before them--Goldwater, Kennedy, Dirksen, Inouye, Ervin, Taft, Fulbright--and now McCain. The House leadership should be taking the example of Cannon, Rayburn, Martin and O'Neill-- and stop kowtowing to the so-called "Freedom Caucus." Congress needs to pull itself together to first balance, and then cure, Trumpism.
For his bold and timely call for a return to regular order, Dome is pleased to name Senator John McCain our Legislator of the Year.
