Category Archives: Laws/Legislation

Immigration in the Supreme Court, 2009-13: A New Era of Immigration Law Unexceptionalism

Source: Kevin R. Johnson, University of California, Davis – School of Law, Legal Studies Research Paper No. 388, August 14, 2014

From the abstract:
With appropriate caution necessitated by the lessons of recent history, this Article posits that the Supreme Court’s contemporary immigration decisions suggest that the plenary power doctrine, the foundation of immigration exceptionalism, is again headed toward its ultimate demise. To test that thesis, this Article carefully scrutinizes the Supreme Court’s immigration decisions, as well as some other actions, such as certiorari denials in significant immigration cases, from 2009 to the present. This period coincides with the first five years of the Obama presidency, which has been a time during which the Executive Branch has seldomly relied on the plenary power doctrine in arguments to the Court.

The review of Supreme Court decisions reveals that, even though the Court now reviews considerably fewer cases than it once did, immigration matters regularly comprise a bread-and-butter part of its docket. Indeed the Court decided five immigration-related merits cases in one Term, an extraordinarily large number for a specialty substantive area of law. The fact that the Court frequently exercises its discretion to accept immigration cases for review suggests that the Justices – like the nation as a whole – consider immigration to be an important, at times contentious, national issue worthy of attention, raising many questions that go to the core of the modern administrative state. In light of the controversy surrounding some of the cases that have come before it, most notably the much-publicized constitutional challenge to Arizona’s SB 1070 and state and local efforts to push the federal government to more vigorously enforce the U.S. immigration laws, the Court could hardly help but be aware of that plain and simple truth.

What is perhaps most noteworthy from the review of immigration decisions of the Supreme Court of the last five Terms is that a conservative Court characterized as ideologically driven by some observers consistently has not taken an extreme approach to immigration law and its enforcement. The Roberts Court’s body of immigration decisions indeed is firmly and comfortably within the jurisprudential mainstream of its decisions in other areas of substantive law. The Court has applied ordinary, standard, and routine legal doctrines for the most part in ordinary, standard, and routine ways.

Analyzing the body of immigration decisions of the Supreme Court under the leadership of Chief Justice John Roberts in the 2009-13 Terms, this Article concludes that the Court in effect has to a large extent continued to bring U.S. immigration law into the legal mainstream. It has interpreted statutes to avoid constitutional questions and avoided invoking the plenary power doctrine to shield vulnerable statutes from judicial review. Although not yet eliminating the doctrine, the Court has slowly but surely moved away from anything that might reasonably be characterized as immigration exceptionalism. The undeniable trend in the Court’s immigration jurisprudence is entirely consistent with its efforts over more than a decade to, whenever possible, interpret the immigration laws to avoid deciding serious constitutional questions, and find creative ways to ensure judicial review of removal orders in the face of stringent congressional restrictions that some might reasonably read as purporting to wholly eliminate judicial review.

In applying the U.S. immigration laws, both conservative and liberal Supreme Court Justices look first to the text of the Immigration and Nationality Act and spend considerable time debating the proper interpretation of the (often complex) statutory provision in question. In addition, the Justices occasionally differ about the application of conventional legal doctrines to immigration cases, but rarely debate whether generally applicable doctrines should apply to immigration cases.

The Latest Developments on Coverage and Reasonable Accommodation under the Amended ADA

Source: Alan D. Berkowitz, J. Ian Downes, Kate Ericsson, and Jane Patullo, Employee Relations Law Journal, Vol. 40 no. 2, Autumn 2014
(subscription required)

Recently, a number of decisions concerning coverage and reasonable accommodation under the amended Americans with Disabilities Act that have been slowly percolating through the agency and court system have issued. In this article, the authors discuss the more notable decisions.

Equal Effort

Source: Sylvia Yee, Stanford Social Innovation Review, Fall 2014

Behind the recent advance of gay marriage rights lay a decade of careful planning and diligent collaboration… There are, of course, enormous cultural factors in play—the rise of a more socially tolerant younger generation and the increased visibility of gay people in mainstream media, for example. But in my view, the turnaround resulted in no small part from the way that gay rights leaders bounced back after the 2004 defeats and came together around a long-term, cross-organizational strategy for social change. There is still a great deal of work to do to secure equal marriage rights across the country. Even so, the success of the marriage equality fight over the past 10 years holds important lessons for leaders and funders of other social change movements. …

Doing Affirmative Action

Source: Stephen Clowney, University of Arkansas Research Paper No. 14-19, April 2, 2013 (Last revised: August 11, 2014)

From the abstract:
Based on the two years I worked in the Admissions Office at Princeton University, I argue that many opponents of racial preferences misunderstand how selective universities evaluate applicants and, as a result, their policy arguments are weaker than generally believed. More specifically, I rebut three major critiques put forth by skeptics of affirmative action. First, I claim that racial preferences are less robust than most critics imagine. Second, I argue that affirmative action imposes fewer costs on both whites and blacks than critics indicate. Finally, I show that racial preferences have less weighty moral consequences than critics believe. In fact, an attack on affirmative action — divorced from a larger project of increasing fairness in college admissions — amounts to an attack on black social mobility.

2014 Report on State Immigration Laws (Jan.-June)

Source: National Conference of State Legislatures, Immigrant Policy Project, August 12, 2014

From the press release:
Lawmakers in statehouses across the United States have approved 132 immigration-related laws so far this year, representing a nine percent decline since 2013, according to a report issued by the National Conference of State Legislatures. As of June 30, legislators in 41 states and the District of Columbia enacted 132 laws and 84 resolutions related to immigration, for a total of 216. During the same time period in 2013, legislators approved 146 laws and 231 resolutions, for a total of 377. According to the report, this decrease is due in part to four states not holding legislative sessions in 2014, notably the state of Texas, which enacted 101 laws and resolutions in 2013 alone. While the numbers of state laws and resolutions are down, states continue to consider immigration issues in a range of policy areas, notably budgets, law enforcement, employment and driver’s licenses….

How Do Lobbyists Influence Bills in State Legislatures?

Source: Brian M. Conley, Scholars Strategy Network, Basic Facts, August 2014

Lobbyists who seek to influence the U.S. federal government and state governments have gotten a lot of attention from journalists and researchers. According to the Center for Responsive Politics, in 2103 more than 12,000 registered lobbyists spent over three billion dollars attempting to influence the policies of the federal government; and similar efforts have been documented in the states, where both the amount and importance of lobbying has increased sharply since the late 1980s. Clearly, lobbying efforts are substantial. But too little is understood about whether – and how – lobbyist efforts pay off in actual influence over legislative outcomes. If influencing legislative policymaking is central to the task of lobbying – and if success means that one interest groups wins in competition with other groups pushing in a different direction – much uncertainty remains about the determinants of successful influence. …

A Legislative History of Article 1, Section 27 of the Constitution of the Commonwealth of Pennsylvania

Source: John C. Dernbach, Edmund J Sonnenberg, Widener Law School Legal Studies Research Paper No. 14-18, July 1, 2014

From the abstract:
The Pennsylvania Supreme Court’s decision in Robinson Township v. Commonwealth, 803 A.3d 901 (Dec. 19, 2013) has prompted enormous interest in the history and text of Article I, Section 27 of the Pennsylvania Constitution. This legislative history is a response to that interest. Amendments to the state constitution must be approved by each house of the General Assembly in two successive legislative sessions, and then approved by a majority of voters in a public referendum. Article I, Section 27 was agreed to in the 1969-1970 and 1971-72 sessions of the General Assembly, and approved by the state’s voters on May 18, 1971. We have attempted to put in one place all of the bills and other documents that represent its passage through this process. More than 40 years after its adoption, many of these documents are relatively hard to find. We hope that this legislative history will make it easier for the public, the bar, and others to see what was done, and why.
Constitution of the Commonwealth of Pennsylvania
Article 1
That the general, great and essential principles of liberty and free government may be recognized and unalterably established, WE DECLARE THAT – …..
Natural Resources and the Public Estate
Section 27.
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people. …..

Why there’s global urgency to enhance pensions

Source: Adam Mayer, Toronto Star, August 17 2014

As Ontario gets going on its supplementary pension plan, Britain has already launched one and the U.S. has one under consideration. … South of the border, a proposal that would supplement U.S. Social Security was laid out by Iowa Senator Tom Harkin in February and is in the early stages of debate. Harkin’s plan would cover 75 million Americans without any pension at all. … Harkin’s plan would be mandatory for companies with more than 10 people. Both employees and employers would contribute and the money could be directed into one of several privately run funds. …

how top up pension plans compare

Harkin Unveils Legislation to Address Retirement Crisis, Rebuild Private Pension System
Source: Senator Harkin, Press Release, January 30, 2014

Harkin, Chair of Senate Pensions Committee, Proposes “Universal, Secure, Adaptable (USA) Retirement Funds Act” to Expand Access to Privately-Run, Portable Retirement Plans

Harkin’s legislation would create a new type of privately-run retirement plan that combines the advantages of traditional pensions—including lifetime income benefits and pooled, professional management—with the portability and ease for employers of a 401(k). The key features of USA Retirement Funds include:
∙ Universal Coverage: USA Retirement Funds would be available to everyone, including the more than 61 million people without access to a workplace retirement plan and the 14.5 million people who are self-employed.
∙ Automatic Enrollment: Employees would be automatically enrolled at a rate of 6 percent per year, but could choose to raise, lower, or stop their contributions.
∙ Secure Lifetime Income: Benefits would be paid monthly for life, and participants would be shielded from market volatility and other risks.
∙ Lower Costs: Pooled, professional management and risk sharing will reduce the cost of retirement by up to 50 percent.
∙ Portability: People would be able to take their benefit with them as they change employers.
∙ Simple and Easy for Businesses: Small businesses can easily participate and would not have to take on risk or undue administrative burden.

Bill snapshot

Enhancing Social Security for Women and other Vulnerable Americans: What the Experts Say

Source: Heidi Hartmann, Institute for Women’s Policy Research (IWPR), IWPR #D504, July 2014

From the abstract:
This report was conducted by Institute for Women’s Policy Research (IWPR) to gather expert opinion about the likely direction and timing of new legislation affecting Social Security and to identify opportunities to raise the special concerns of women and other vulnerable populations in future legislative debates, so that their needs can be addressed.
Recently Proposed Legislation Affecting Social Security (Appendix to IWPR #D504)