Yearly Archives: 2017
Dec 19, 2017 Bethany BergerNative Peoples Law
In 2016, many thousands of Native people and their supporters traveled from across the country to protest construction of the Dakota Access Pipeline in North Dakota. It was the greatest display of unified Indian activism since the standoffs at Alcatraz and Wounded Knee. While Dakota Access set dogs on the protesters and North Dakota almost enacted a statute that would immunize those injuring protesters from liability, the federal government had a role as well. Because the pipeline ran over a section of federally-owned land, the U.S. had to grant an easement to build it, and needed to consider the impact on the Standing Rock Sioux, including sacred sites, drinking water, and treaty rights, before doing so. In the waning days of the Obama Administration, the EPA determined that it had not sufficiently considered all factors, and decided to delay the permit. In the first few days of the Trump Administration, the EPA reversed, ruling that the pipeline could go forward. After the pipeline was built (and already had its first leaks), a federal district court held that the U.S. had not sufficiently considered treaty rights and environmental concerns. But the court refused to halt the pipeline while considering the remedy, so gas continues to flow, and small leaks continue to occur.
As at Standing Rock, the federal government has tremendous power over the things most important to Native people. Five decades into the self-determination era, tribes still depend on the federal government to approve, regulate, or fund what tribes do with their businesses, land, natural resources, sacred sites, and police and social welfare services. The administration of this federal role is in these matters is far from the common law doctrines that occupy most Indian law professors. Not so for Professor Kevin Washburn. Washburn recently returned to academia after several years as the Assistant Secretary of Indian Affairs, where he struggled first hand with the factors governing federal decision-making. What the Future Holds: The Changing Landscape of Federal Indian Policy benefits from this experience with an unusually nuanced and informed perspective on the federal administration of the federal-tribal relationship.
From the founding era to today, Supreme Court opinions, statutes, and executive documents have referred to the United States as a trustee to Indian tribes. As Professor Washburn says, the implicit paternalism of this idea has always fit uncomfortably with the concept of tribal sovereignty, and particularly so in the modern era of self-determination. Washburn also notes that the Supreme Court has pared away at the legal power of the trust relationship, limiting the power of tribes to demand compensation for federal actions taken with conflict of interests, or to subject the federal government to other common-law trust obligations.
But as the paternalistic rationale and legal enforceability of the trust responsibility has faded, Washburn argues, the trust responsibility has been transformed. The federal government is now less the manager than the “principal underwriter” of tribal affairs. Today, most services formerly performed by the federal government are managed by Indian tribes with federally-funded self-determination contracts. This shift has resulted in more effective, culturally appropriate, and profitable results for notoriously mismanaged programs. But it has also resulted in new questions about the role of the federal government.
First, some may ask whether the trust responsibility “to provide funding to tribes to meet federal responsibilities” can continue as the paternalistic elements of the trust responsibility diminish. For Washburn, the answer is “of course.” Washburn argues that federal funding can be seen as a moral “rent” on the lands and sovereignty taken from tribal nations, and this, rather than a paternal noblesse oblige was how Chief Justice Marshall originally conceived it. Because tribal administration of programs for Indians has been proven more effective and efficient than federal or state administration, it also makes fiscal sense. But Washburn notes that even in the face of statutory promises to provide funding, the United States has repeatedly failed to appropriate enough money to fulfill its promises. In response, however, the Supreme Court has developed a new norm strictly holding the government to its fiscal promises to tribal nations.
A larger question arises regarding oversight of tribal governments. The general policy of the federal government today is to avoid interfering with tribal sovereignty. This policy is enshrined in statutes and executive orders, and increasingly expected by tribal nations. But numerous statutes still require federal approval for tribal projects, and the federal government can use this power to delay or shape negotiations so as to favor mining and other interests contracting with tribes. The federal approval power, even when it is not subject to conflicts of interest, adds time and expensive regulatory review to tribal actions. Washburn notes that there is a powerful case that this oversight is inconsistent with self-determination and tribal welfare.
At the same time (and this is one of the unique contributions of the essay), Washburn suggests that increasing tribal self-determination may argue for more federal oversight, not less. First, as we know from Spider-Man, with great power, comes great responsibility. Tribes increasingly have real power over peoples’ lives. In some cases, Washburn speculates, this leads to greater federal accountability.
Despite this, he argues, the need for increased federal oversight may be less compelling that it appears. He investigates three distinct areas of concern.
The most prominent is the headline-making disenrollment of tribal members by some tribes. Washburn notes that although some characterize this crisis as a battle over gaming revenue, those who do so are likely unaware that “at least since the arrival of the Europeans, tribal politics has been a blood sport.” In addition, to the extent that these are battles over gaming revenue, they are battles over a tribe’s own money, and so the case for federal accountability is less than it was in cases like Santa Clara Pueblo v. Martinez, the case that originally established the non-interference rule. Nevertheless, he notes, to the extent such disenrollment violates human rights norms, there may be a case for intervention similar to that for any nation violating human rights.
Washburn also investigates the case for greater intervention in tribal criminal justice systems. One of Washburn’s most important scholarly contributions before entering government service was in making the case for stronger tribal control in this area. Washburn now argues that the push for more tribal law enforcement power comes more from “activists” (and, he doesn’t mention, scholars) than from tribal leaders. Washburn’s original articles contributed to a movement that resulted in recent federal statutes and policies increasing tribal powers of prosecution and punishment. These statutes, however, impose greater federal oversight as a condition of exercising more power. “To exercise greater sovereignty,” Washburn now writes, tribal governments “necessarily must accept … outside interference by the federal government.” The article does not make clear whether Washburn believes these “political compromises” are a good thing or not, but does suggest that his time in power may have softened his prior scholarly stance.
Finally, Washburn discusses an area that has not gained as much public attention: the federal government’s role in land regulation. This is perhaps the most direct instance of the federal trust responsibility, as the federal government still actually owns most of Indian country in trust for either tribes or individual Indians. Washburn notes that the federal trust, and the regulatory apparatus that comes with it, actually reduce the value of land, perhaps a conflict of interest for the trustees. (Incidentally, one of the many contributions of Washburn’s tenure was in lessening this regulatory burden.) Individual allottee interests in free use and alienation of their land may also conflict with those of the other trust beneficiaries, the tribes. Like Jessica Shoemaker’s work (reviewed by Ezra Rosser in Jotwell), Washburn opens a new window into the reality of the trust status of Indian land.
Altogether, the strength of What the Future Holds is in providing new perspectives and asking hard questions rather than in providing answers. It also remains to be seen whether the Trump administration will undermine the new, less-paternalist trust relationship Washburn identifies. My guess is that it may lessen immediate support for tribes, particularly in areas where mining interests and red states argue against tribes, but that the administration’s attention span is too short to significantly change the trajectory of federal policy. But Washburn has identified important things for scholars to think about as we try to influence what the future holds, both for tribal nations and for those they govern.
Nov 30, 2017 Jill FamilyImmigration
Ming Hsu Chen,
The Administrator-in-Chief: The President and Executive Action in Immigration Law, 69
Admin. L. Rev. 347 (2017), available at
SSRN.
Professor Ming Chen’s Administrator-In-Chief: The President and Executive Action in Immigration Law is an ambitious effort to peer inside the relationship between a president and administrative agencies. It is the executive branch equivalent to the legislative sausage. Professor Chen concludes that a president is on strongest footing when he “promot[es] practices of good government in agencies rather than trying to substitute his policymaking judgments for those of the agency.” (P. 359.) The article emphasizes that the president should focus on his control over three things: (1) coherent federal policy; (2) centralized agency discretion, ensuring consistency, and (3) coordinating actions across all agencies. The article concludes that procedural choices matter; the president should work hard to set a procedural example and to use his influence to encourage procedural choices that will strengthen the legitimacy of policies. Professor Chen argues that the normative justifiability of presidential policymaking rests on whether the president is promoting coherency, consistency and coordination.
While three case studies from the Obama Administration’s approach to immigration law guide the article’s analysis, the analysis includes lessons for any president. In developing these case studies, Professor Chen conducted interviews with government officials and immigration advocates. The subject of the first case study is President Obama’s use of agency guidance documents to announce the Deferred Action for Childhood Arrivals (“DACA”) and Deferred Action for Parents of Americans (“DAPA”) policies. The second case study focuses on President Obama’s attempts to set removal and detention priorities. Professor Chen walks us through several incarnations of enforcement policies that attempted to express President Obama’s priorities for detention and removal. These policies called on local law enforcement to share information about individuals with federal immigration agents and to detain individuals while waiting for federal immigration officials to travel to a jail to take custody of an individual. The third case study examines the Obama Administration’s efforts to respond to a surge of asylum seekers at the Mexican border.
These case studies reveal the extremely complicated nature of the immigration bureaucracy. Not only is the organizational chart complex, but the dispersion of immigration functions makes achieving coherency, consistency and coordination an awesome challenge. The immigration bureaucracy not only consists of three separate entities within the Department of Homeland Security (Customs and Border Protection, Immigration and Customs Enforcement, and United States Citizenship and Immigration Services), but the Department of Justice, the Department of State, and the Department of Labor each play roles as well. Each agency has its own mission and culture. The reality is even more complex, though, as Professor Chen’s research reveals competing cultures within agencies. Professor Chen describes different cultural forces at work within Homeland Security and also the challenges President Obama faced in fighting ingrained agency culture. The amount of inter- and intra-agency coordination and massaging necessary to change course is mind-boggling. Professor Chen’s article reminds us that no matter how difficult, this type of management can be crucial, and the president is in the best position to do it.
For DACA and DAPA, Professor Chen concludes that President Obama “somewhat succeeded in promoting a coherent system of enforcement practices.” (P. 411.) Both DACA and DAPA aimed to create a coherent policy of how the executive branch would exercise its prosecutorial discretion. Two things stood in the way and rendered the effort only somewhat successful, according to Professor Chen. First, the President faced strong headwinds in the form of agency cultural resistance to the policies. Second, in the case of DAPA, the procedural choice to use a guidance document instead of notice and comment rulemaking factored into the policy’s legal downfall. For both the detainer policies and the response to the surge in asylum applicants at the border, Professor Chen relays failures of coherency, consistency and coordination. According to Professor Chen, procedural missteps greatly contributed to those failures.
Professor Chen deserves a lot of credit for taking on this project. Her valuable insights allow us to peer into the relationship between President Obama and immigration agencies. Her article also serves as an important bridge between immigration law and administrative law generally. She ties specific immigration law case studies to larger administrative law issues, including the president’s proper relationship with agencies. Her detailed explanation of the immigration bureaucracy and the cultural challenges within it on their own are significant contributions. The article’s ambition, however, is also its soft spot. This is a very dense article that attempts to accomplish much and sometimes gets in its own way by attempting to touch on too many related topics. This left me, at times, unsure of the article’s main focus. On some points I was unsatisfied. For example, the article mentions the ongoing debate about the legitimacy of the administrative state, but left me without a clear explanation of how the call for greater attention to the president’s procedural power fits into that debate. Also, I believe that Professor Chen intends for her focus on procedure to be solely normative, but I am not sure and I would like to know where she sees the existing legal boundaries.
What is clear, however, is Professor Chen’s call for the president to be a staunch defender of procedure who encourages coherency, consistency and coordination across the executive branch. She makes suggestions for how a president can better achieve those goals and her case studies provide important lessons.
Cite as: Jill Family,
Procedure Matters, JOTWELL
(November 30, 2017) (reviewing Ming Hsu Chen,
The Administrator-in-Chief: The President and Executive Action in Immigration Law, 69
Admin. L. Rev. 347 (2017), available at SSRN),
https://lex.jotwell.com/procedure-matters/.
Nov 16, 2017 Ezra RosserPoverty Law
Susannah Camic Tahk,
The New Welfare Rights,
Brooklyn L. Rev. (forthcoming 2017), available at
SSRN.
Professor Susannah Camic Tahk’s newest article is a welcome and optimistic read that opens space for future work (re)constructing the idea that the poor have rights. The New Welfare Rights has much to offer scholars and advocates alike, showing that the poor have under-appreciated rights as taxpayers or as recipients of tax-based benefits. This is an important contribution because it shows the continued possibility of claims framed in terms of “rights” even in the aftermath of welfare reform.
The New Welfare Rights begins appropriately by presenting the rise and fall of rights-based claims to welfare. As Professor Tahk highlights, rights-based claims enjoyed a brief moment in the sun, but the Supreme Court stepped back from the promise of Goldberg v. Kelly, with a series of holdings—Professor Tahk focuses on Dandridge v. Williams and Eldridge v. Matthews—hostile to the idea that the poor have a right to public support. Professor Tahk explains, “After these cases, lawyers working on issues pertaining to government benefits and rights hit a wall.” (P. 12.) So far, this is not exactly new territory. Martha Davis’ masterful history of the rise and fall of welfare rights in her book Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973 (1993) is the leading account but numerous other articles and books tell a similar story. With only a few exceptions, most scholars and advocates generally accept the notion that the Courts are not receptive to arguments that the poor have rights. Somewhat less strongly stated, in today’s environment it is understood that existing recognized rights are vulnerable and the list of rights is not likely to be expanded through litigation. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 or Welfare Reform Bill, which explicitly stated that welfare was not an entitlement, is treated as final proof that the law has slammed shut on the poor.
What makes The New Welfare Rights so helpful is it shows that such pessimism might not be entirely merited. Following welfare reform, welfare rolls plummeted and did not rise after start of the Great Recession, but tax benefits to the working poor took off. With bi-partisan support, poor support morphed from welfare claims made by individuals, especially poor mothers and children, into money claimed by the working poor who file tax returns. This transition and the rising importance of the Earned Income Tax Credit (EITC) can rightly be critiqued for moving from a program geared towards supporting individuals as people or as citizens to a system of aid that values only people as workers. But as Professor Tahk shows, the move to provide assistance through the tax system “has opened the door to a new set of rights, the same rights that any taxpayer has.” (P. 5.) Post-welfare reform and after the Supreme Court turned away from Goldberg, state constitutions and state courts have been seen as a possible way for the poor to have their rights recognized. By showing the ways in which the poor, as taxpayers and as tax filers, have rights that are under-appreciated by advocates who focus solely on direct cash assistance, The New Welfare Rights creates space for additional rights-based claims on behalf of poor people. Professor Tahk notes, “Tax benefits come with rights. These rights accrue to poor recipients of tax benefits much as they do to wealthy individuals or businesses who obtain subsidies through the tax code. These rights arise from participating in the tax system.” (P. 26.)
I will admit I am not entirely convinced by Professor Tahk’s argument that the “tax-based welfare state does not operate along two tiers” and that “it presents a one-tiered vision of equal citizenship.” (P. 27.) A recent article by Professor Wendy Bach does a nice job attacking that argument and Matthew Desmond’s essay on the inequality connected to the mortgage interest deduction similarly challenges such a rosy view. But by highlighting the procedural rights that are part of the tax system, including those tied to the Taxpayer Bill of Rights, and connecting those rights to poor people (Pp. 35-43), The New Welfare Rights opens our eyes to ways in which to help the poor by leveraging rights built into the tax system. It is an article worthy of attention and is perhaps especially valuable to those of us who are skeptical about the government recognizing and responding positively to rights talk when it comes to poor people.
Oct 16, 2017 Angela BanksImmigration
Kerry Abrams,
Family Reunification and the Security State (forthcoming, 2017), available at
SSRN.Many Americans believe that one of the functions of United States immigration law is to facilitate family reunification. For example, the idea that if a non-citizen marries a United States citizen that person can reside in the United States with their U.S. citizen spouse. Yet another function of U.S. immigration law is border control to protect national security. Consequently, if the United States government deems a non-citizen a security threat, regardless of their relationship to a U.S. citizen, that non-citizen could be denied entry to the United States. The relationship between these two immigration law functions—family reunification and national security—has varied throughout American history.
Kerry Abrams’ forthcoming article, Family Reunification and the Security State, provides a framework for understanding the “shifting and complex relationship” between these two immigration law functions. (P. 1.) Professor Abrams identifies three periods of U.S. history in which the relationship between these two immigration law functions has varied. During the age of the unitary family there was little tension between the two immigration law functions, and family unity was paramount. In the subsequent age of security, the State’s concern about national security threats increased and family reunification was subordinated to border control. We are currently in the age of balancing in which family rights are viewed as individual constitutional rights that must be balanced with the State’s interest in border control. The implications of these shifts are highly visible today as citizens challenge President Trump’s executive order limiting migration from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen based on their interest in family reunification.
The age of the unitary family was one in which the family was understood to be a single legal identity—that of the husband and father. During this time period the State’s interest in border control was limited. The State was primarily interested in “expand[ing] its borders and settl[ing] new territory.” (P. 4.) Viewing the family as a unitary legal entity, and allowing the migration of all family members, assisted the State in achieving this goal.
Professor Abrams notes that the even though transformations were taking place at the state level that undermined the idea of the unitary family, such as married women property acts, “the common law theory of marital unity was still so powerful that family unity was treated with extraordinary[] deference.” (P. 6.) Professor Abrams uses the story of Chung Toy Ho and Wong Choy Sin to illustrate the deference granted to the idea of the unitary family. Chung Toy Ho and Wong Choy Sin were the wife and child of Chinese merchant Wong Ham. During the era of Chinese exclusion laborers were excluded, but others like merchants could migrate to the United States. Yet federal law did not specify that merchants could bring their family members with them. Judge Deady of the United States District Court of Oregon heard their case and concluded that China and the United States could not have intended to prohibit merchants from bringing their wives and children with them when they could bring their servants. He noted that “[t]he company of the one, and the care and custody of the other, are his by natural right; and he ought not to be deprived of either, unless the intention of congress to do so is clear and unmistakable.” (P. 7.) Judge Deady concluded that Chung Toy Ho and Wong Choy Sin were admissible based on their familial relationship to Wong Ham.
The family unity principle at work during this time period did not provide migration opportunities for all families. This principle protected the family that was “married and monogamous.” (P. 7.) Yet for the families that were within the accepted conception of family, the idea of family unity was “strong enough to override serious government interests in border protection and immigration policy.” (P. 8.)
This presumption shifted during the age of security when the State’s interest in national security increased significantly. The age of security corresponds with post-World War I America—a time when there was significant suspicion of the foreign-born population. The plenary power doctrine was used to outweigh an individual’s interest in family unity in large part because “[a] spouse might not be just a spouse but a spy.” (P. 12.) In several cases the spouses of U.S. citizens were denied entry to the U.S. because they were deemed security risks.
Professor Abrams argues that we are currently in the age of balancing. Within the last twenty years, two developments ushered in this age. First, the constitutionalization of family rights, and second, less acceptance of the plenary power doctrine in its strongest form. These two developments have created a context in which an individual’s right to family life is legally cognizable and the State’s interest in border control and national security is appropriately reviewed by courts. While the plenary power doctrine has not died, it is much more “malleable and nuanced” today, which means that the State’s interest in national security does not automatically trump an individual’s right to family life. (P. 18.) Rather courts are increasing engaged in balancing the individual and State interests at issue. Professor Abrams concludes that “[t]he development of a modern family reunification right has occurred slowly but is now ripe enough to be poised for affirmative recognition by our courts.” (P. 25.)
The history that Professor Abrams provides is particularly timely as courts are faced with several challenges to President Trump’s executive order addressing migration from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. Family members residing in the United States have challenged the executive order as a violation of their right to family life as family members are denied entry to the U.S. based solely on their nationality. In an age of balancing courts may provide more review of the executive order to balance the President’s concerns about national security with United States citizens’ interest in family reunification.
Sep 13, 2017 Tom SimmonsElder Law
Alexander A. Boni-Saenz,
Sexual Advance Directives, 68
Ala. L. Rev. 1 (2016), available at
SSRN.
May an individual consent to sex in advance of incapacity (or intoxication)? Can an individual consent prospectively to intercourse? Should we only recognize consent given contemporaneously with the sexual act? These are straightforward questions which reside within core human needs and autonomy, yet few have considered them in the elder law context. Consensual sex has been explicated by juries, lawmakers, and scholars with practically endless variations, but a temporal dimension to sexual consent has not.
A sexual advance directive might read: “I hereby consent to vaginal intercourse with my spouse upon and during my incapacity.” Advance directives are statutorily authorized for healthcare. What about for sex? Professor Boni-Saenz makes a convincing case for answering “yes!” in Sexual Advance Directives. An individual facing dementia may want to continue to have sex with her partner even after dementia has diminished or destroyed her capacity. If prospective sexual consent is invalid, her partner would be guilty of rape for an act of penetration with her even if she had unambiguously extended pre-incapacity consent.
Individuals may want to grant prospective consent to sex for different reasons. As Boni-Saenz observes, “They might have an interest in enabling sexually fulfilling lives for their future disabled selves, in preserving important sexual identities or relationships, or in protecting spouses from criminal prosecution for rape.” (P. 4.) An individual’s right to have intimate relations with the person of her choosing is so fundamental that we should consider carefully whether the right should be suspended by dementia if the individual thoughtfully considered the possibility of incapacitated sex while she was still competent. The questions posed by Boni-Saenz get at the basic concept of self. If a present-self consents to a future-self’s sexual act, has the individual consented?
This kind of abstract problem might interest some, but it can also be framed in concrete terms. It is an important practical question: Should we recognize an individual’s attempt to consent prospectively to sex? If the question is framed as an individual right, it is difficult – but not impossible – to argue that the right should be denied persons with advanced dementia, traumatic brain injuries, a stroke, or senility.
These kinds of questions, though, as difficult as they are, are actually more problematic than they might initially seem. We tend to think of dementia or incapacity as a light switch, either on or off. The law treats incapacity in fairly absolute terms: one has capacity or one doesn’t. In reality, a loss of capacity almost always appears in gradations of grey, not as either black or white. While an “on or off” of incapacity is legally convenient, it is biologically inaccurate. Many individuals without capacity can articulate their desires. Moreover, sexual disinhibition is often undiminished by dementia.
Hypothetically, let’s say, I once had a client with a diagnosis of early onset Alzheimer’s. She delivered a directive to her caregivers for the time when she would lose capacity. She wanted, she told them, to enjoy replays of her favorite television program, Gunsmoke. She was sure that this would give her comfort as she lost the ability to articulate her wants. Inevitably, she declined and lost capacity. Her caregivers dutifully played Gunsmoke for her, but the tapes were distracting, even distressing, to her. She angrily complained that the words “all ran together.” I’ve been told that this is a common complaint for dementia patients. Closely-spaced television dialogue can become indecipherable and even terrifying to individuals with dementia. If the caregivers had been bound to continue to subject her to Gunsmoke reruns, my clients’ former-self would have, in effect, infringed on the autonomy of her present-self.
The same kind of quandary with a sexual advance directive is even more important – and disquieting.
Next, Boni-Saenz injects another problem. Along with advance directives, healthcare proxies are among the most commonly utilized tools for elder law attorneys. A healthcare proxy is a kind of durable power of attorney which appoints a surrogate decision maker over healthcare decisions. These instruments permit an agent, such as a trusted friend or family member, to grant – or withhold – informed consent in various medical situations if the principal has lost capacity. (The “durability” of a power of attorney refers to its effectiveness notwithstanding incapacity, a statutory reversal of common law agency principles.) Not uncommonly, a healthcare agent is faced with whether to terminate artificial means of life support on account of a terminal or vegetative condition of their loved one – whether to “pull the plug.”
If sexual advance directives are permitted to prospectively grant (or deny) consent to physical intimacy, then, by extension, sexual powers of attorney are also warranted. Vesting a trusted agent with the power to consent (or refuse) intimacy goes partway toward ameliorating the inherent problem of an advance directive; the difficulty of responding to unanticipated circumstances. With a healthcare proxy, an agent’s determinations can take account of evolving issues in ways that a static (and perhaps stale) declaration cannot.
In most cases, the named agent under a healthcare proxy will be a spouse or partner, with a successor agent named in the event of the primary agent’s unavailability; typically an adult child. Agents are named on the basis of occupying positions of trust and familiarity with the principal’s wishes. Spouses and children frequently fit the bill.
Now envision a husband-agent making the decision on behalf of his incapacitated wife-principal about whether to consent to have sex with him. He will – as agents often do – wear two hats. It’s the same conflict of interest scenario from numerous fiduciary cases, but of a particular kind heretofore unexplored by agency law, or criminal law, for that matter. And what if an adult child is the agent? Picture a daughter faced with the decision of sexual consent on behalf of her aged mother.
There’s much more in Sexual Advance Directives; it is highly recommended reading.
