Courts & the Law, Defending Democracy, News

SCOTUS conservatives give temporary go ahead to Trump’s immigrant wealth test

The U.S. Supreme Court’s conservative majority will allow the Trump Administration to move forward with a wealth test that would deny green cards to immigrants who the government believes might make use of public benefits, such as food stamps and Section 8 housing.

The high court’s 5-4 decision is temporary (and doesn’t apply to the state of Illinois) as litigation over the “public charge” rule continues in many courts across the country. Justice Neil Gorsuch, who was nominated by President Donald Trump, wrote the opinion granting the government’s request to stay a nationwide injunction out of New York, but he didn’t weigh in on the merits of the case.

He did, however, take the opportunity to complain about the judicial patchwork of rulings out of trial courts around the nation, and noted that none really mattered much “at this point.”

“Today the Court (rightly) grants a stay, allowing the government to pursue (for now) its policy everywhere save Illinois. But, in light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem,” Gorsuch wrote. “The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw – they direct how the defendant must act toward persons who are not parties to the case.”

The public charge rule was set to go into effect Oct. 15, 2019, before five trial judges entered injunctions blocking it. “Public charge” is a term that refers to immigrants who the government believes will rely on public assistance. The new rule expands the definition of who would be considered a public charge so that the Department of Homeland Security (DHS) can “ensure applicants [for lawful admission to the country] are self-sufficient,” according to the 837-page document.

It changes “green card” criteria to allow harsh scrutiny of an immigrant’s financial resources when deciding whether to allow them to obtain legal status in the U.S. One of the factors that will be considered (and make it more difficult for legal immigrants to obtain permanent resident status) is whether they use or are likely to use public benefits, like non-emergency Medicaid, SNAP food assistance or Section 8 housing.

The new rule will consider a number of factors, including age, health, family status, education, and skills in determining whether a green card applicant is more likely than not to become a public charge at any time in the future.

“Nearly every sector of society has gone on record in opposition to this morally repugnant and legally dubious regulation, and for good reason: its implementation will hurt countless of immigrant and citizen families, and we’re all worse off as a result,” said Marielena Hincapié, Executive Director of the National Immigration Law Center. “This move by the Supreme Court is deeply disheartening and harmful for our low-income communities of color and our democracy. But it only strengthens our resolve to continue to fight — both in the courtroom and along with our communities — for a future in which every family can thrive.”

Kate Woomer-Deters

Attorneys, advocates and experts have emphasized that the new rule will only apply to a small group of immigrants, and does not affect children of immigrants who are using public benefits.

There are three specific benefits the new public charge rule applies to: non-emergency Medicaid, the Supplemental Nutrition Assistance Program (SNAP) and public housing. Under old guidance, and also included in the new rule, the government will also scrutinize the use of Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF). The rule does not apply to U.S. citizen children, pregnant women and children who use Medicaid or humanitarian categories of immigrants, including asylees, refugees, victims of trafficking and others.

“There should be virtually nobody dropping out of benefits because of this rule,” said Kate Woomer-Deters, senior attorney for the Immigration and Refugee Rights Project at the North Carolina Justice Center (the parent organization of NC Policy Watch).

She said programs that are not considered negatively by DHS are critical ones that individuals should continue using, like the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), the Affordable Care Act, FEMA aid, free school lunches and emergency Medicaid.

Undocumented immigrants are not eligible for any of the benefits included in the rule, so they already do not use them. The rule also does not apply to green card holders because they’ve already passed the public charge test. The rule also will not be retroactive, so anyone who used those benefits before October of this year will not be penalized.

Numerous organizations are working to keep immigrant communities educated about the new public charge rule to prevent individuals from dropping out of needed programs preemptively.

“The regulation itself directly affects only a small number of people, but the Trump administration is counting on fear to amplify the harm,” said Olivia Golden, Executive Director of the Center for Law and Social Policy. “The administration disregarded the law, the facts, and the voice of the American people to advance a brutal attack on millions of children and their families. Don’t let them win — fight fear with facts and make the best decision to protect your family. This regulation has already fueled fears that could cost millions their food, medical care, and homes.”

Justice Neil Gorsuch

Those same organizations are also reminding everyone that the fight isn’t over – they’ve vowed to fight as far as they can in the courts. There are a number of resources about the public charge rule and who it applies to. Both the NC Justice Center and the National Immigration Law Center have entire web pages devoted to the subject.

Justice Clarence Thomas concurred with Gorsuch’s written opinion, which reads more like a case against nationwide injunctions altogether than an opinion about the veracity of the public charge rule in question.

“This is not normal,” he wrote. “Universal injunctions have little basis in traditional equitable practice. Their use has proliferated only in very recent years. And they hardly seem an innovation we should rush to embrace. By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions.”

Gorsuch added later that he hopes the court gets to an appropriate juncture to “take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.”



SCOTUS DHS Case (Text)

Courts & the Law, Defending Democracy, News

Department of Commerce looks at pipeline that leads to over-incarceration of disabled individuals

Graphic courtesy of the North Carolina Department of Commerce’s LEAD team

Individuals with disabilities are over-represented in the prison system, and the disparities are rooted in a school-to-prison pipeline that punishes disadvantaged youth — it’s a trend reported nationally by the U.S. Bureau of Justice Statistics that is mirrored in North Carolina, according to a new analysis by the state Department of Commerce’s Labor and Economic Analysis (LEAD) team.

The team used data from North Carolina’s Common Follow-Up System (CFS) —  a longitudinal repository of workforce and education data — to illustrate the extent of the “school-to-prison pipeline” for young people with disabilities in the state.

We begin our analysis by following a cohort of 83,126 students who exited public high school in North Carolina, either graduating or dropping out, during the 2000 school year.1 Nearly 6.4% of these individuals entered a state prison in North Carolina within 18 years after high school — more than half of them (3.5%) within seven years [Figure 1]. Students with disabilities were much more likely than their peers without disabilities to land in prison within 18 years (12.8% versus 5.6%, respectively). Most of these students with disabilities were reported by the state Department of Public Instruction as having a specific learning disability, an umbrella category that includes dyslexia and dysgraphia.

This disparity in incarceration rates is preceded by a disparity in high school graduation rates. The National Center for Education Statistics reports that, during the 2017 school year, students with disabilities in North Carolina had a four-year high school graduation rate of only 70%, compared to 87% for all students. Our own analysis of students who exited high school during the 2000 school year finds that only 33% of those with disabilities graduated upon exit, compared to 61% of their peers without disabilities.

LEAD found that high school dropouts in North Carolina were around six times more likely to enter prison than their peers who graduated — the research matched prior data from the U.S. Census Bureau that found that 16- to 24-year-olds who dropped out of high school were six time more likely to be institutionalized than high school graduates.

Another analysis of 990,270 students who exited a North Carolina high school during the 2000-2010 school years found that incarceration rates vary widely by type of disability. In its post about the data, LEAD wrote that while some individuals have disabilities that are immediately apparent, such as those requiring the use of wheelchair or a walking cane, many struggle with “invisible disabilities” that are non-apparent but nonetheless present challenges.

Its analysis found that North Carolina students with “invisible disabilities” such as behavioral and or emotional disorders, intellectual disabilities, specific learning disabilities, and traumatic brain injury are significantly more likely to wind up in the adult correctional system in the years following high school than their peers without disabilities.

Overall, individuals with disabilities who exited high school between 2000 and 2010 were more than twice as likely to enter prison within seven years after high school than their peers without disabilities. Those with behavioral/emotional disorders were the most at risk, with nearly 20% entering prison within seven years. Individuals with intellectual disability, specific learning disabilities, or traumatic brain injury also had a significantly elevated risk of going to prison. On the other hand, those with autism or orthopedic impairment were significantly less likely to enter prison than their peers without disabilities. The likelihood of individuals with visual impairment/blindness, hearing impairment/deafness, or speech impairment going to prison was not significantly different from their peers.

The school-to-prison pipeline for youth with disabilities is not only a human tragedy, it is also a workforce challenge. Our prior research demonstrated that former prisoners in North Carolina are much less likely to find employment after release than the broader population, depriving our economy of a potentially rich source of human capital. Our state’s educators, employers, and communities all have a stake in ensuring young people with disabilities are steered toward the pathway to opportunity and diverted away from the pipeline into prison.

The research is of note, because the North Carolina Administrative Office of the Courts has been leading a School Justice Partnership (SJP) effort that aims to keep kids in school and out of court. SJP is a group of community stakeholders — including school administrators, the law enforcement community, court system actors, juvenile justice personnel, and others — that develops and implements effective strategies to address student misconduct, according to its website.

Chief Justice Cheri Beasley is working to implement SJPs in all 100 of North Carolina’s counties. You can learn more about the research behind SJPs here.

Read the full Department of Commerce post about school-to-prison pipeline analyses here.

Courts & the Law, News

Brennan Center remembers Citizens United 10 years later; urges reform

Ten years ago, the U.S. Supreme Court opened the door in Citizens United for mega-wealthy donors to infuse big money into political races across the nation.

Or, as the Brennan Center for Justice put it, the high court “slashed commonsense limits on campaign cash and set America’s campaign finance system on a path to overwhelming dominance by the ultra-wealthy few.” The non-profit at New York University released its analysis this week on House Resolution 1, the reform law that would counter Citizens United.

H.R. 1 is a public financing program that would “amplify the voices of small donors, so the flood of megadonor money can be balanced by supercharged funding from regular people.” The Brennan Center’s analysis shows it would fundamentally transform campaign financing for the better.

Since Citizens United, the share of election funding from megadonors has mushroomed: in 2016, a few donors of more than $100,000 accounted for more than half of all election spending, dwarfing the money given by millions of small donors. Even with the boom in grassroots engagement and small donations in 2018, small donors were overshadowed by megadonors. Without reform, the gap is only going to widen.

The imbalance in campaign finance has made many Americans frustrated and cynical. But while it may be easy to see the current state of money in politics as inevitable, the truth is powerful fixes are available to restore balance and empower everyday people.

Public campaign financing has succeeded in changing the way politicians raise money in states and cities across the country, from Maine to Arizona and New York City to Los Angeles. It reduces candidates’ need to chase big donors and makes typical Americans the most important source of funds. The boost that public financing gives small donors is needed now more than ever because non-millionaires simply can’t keep up with the gains at the top.

North Carolina defunded its public financing program years ago, and it subsequently led to millions in outside spending for the election of now state Supreme Court Justice Mike Morgan which shifted the court’s ideological balance to the left.

Previous Brennan Center research has shown that million-dollar campaigns for state supreme court seats were fast becoming the national norm. Dark, untraceable funds are flooding judicial races, and national political groups and business interests regularly pour money into these campaigns.

And this year isn’t expected to be any different as Republicans have a chance to win more seats and even out the ideology across the bench. There are three seats on the state Supreme Court up for election, and each race will be competitive.

Chief Justice Cheri Beasley, who was appointed to the helm earlier this year, will run against Associate Justice Paul Newby, currently the most senior on the court and the only Republican, to keep her place on the bench. North Carolina Court of Appeals Judges Lucy Inman, a registered Democrat, and Phil Berger Jr., a registered Republican, will vie for the seat Newby leaves behind.

And finally, on the high court, former lawmaker Tamara Barringer, a Republican, will challenge current Associate Justice Mark Davis, a Democrat, in his effort to stay seated after being appointed earlier this year by Gov. Roy Cooper.

H.R. 1, the For the People Act, was passed by the House congressional delegation in March 2019, and it is a comprehensive democracy reform package that would help quell big and dark money in political campaign races.

The bill includes a system of public financing for House elections that would multiply small contributions by matching donations of $200 or less at a rate of six to one, according to the Brennan Center analysis. A $200 donation would get a $1,200 match, making it worth $1,400 to the campaign. Candidates can choose to opt in if they show they have substantial public support. Those participating may not accept more than $1,000 in private funds from each donor — significantly lower than the contribution limit of $5,600 for the 2020 election cycle. And the amount of public funds each candidate can earn in an election cycle is capped.

Read the Brennan Center’s full analysis here about how H.R. 1 would turn the current funding landscape on its head.

Courts & the Law, Defending Democracy, News

Judges: Voters unhappy with 2016 special session should take care of it at the ballot box, not in court

The judicial branch of government has no right to tell the General Assembly how quickly laws must be enacted nor can it require them to give advance public notice ahead of a legislative special session, according to a state Court of Appeals opinion released today.

The plaintiffs in Common Cause v. Forest challenged the 2016 special legislative session in which two bills were passed that fundamentally changed the balance of power between governmental branches. The session was called with no advance notice to the public, and there were 26 separate bills filed at the time, which the plaintiffs’ attorney said at the hearing was to distract from the legislation that ultimately passed.

A unanimous, bipartisan three-judge appellate panel rejected the argument that the people have a right to instruct their representatives via a time limit for public notice of a special session.

“The right protected [the right to instruct] is one of open access to the law-making process and of open communication with one’s representatives in that process,” the opinion states. “The courts have the power to defend that right. But the decision of how quickly particular laws, on particular subjects, must be enacted is a political question reserved for another branch of government.”

Judge Richard Dietz wrote the opinion, with Judges Hunter Murphy and Allegra Collins concurring. He wrote that the judicial branch has no constitutional authority to demand from the legislative branch an explanation of why a particular bill must move quickly to  enactment, much less the authority to review whether that explanation is “valid.”

He also wrote the plaintiffs did not show they were denied the right to instruct their representatives.

“They have shown, at most, that their representatives chose not to listen to them,” the document states. “That may be a reason not to vote for those representatives in the future; it is not a constitutional violation.”

The bills that were passed out of the challenged special session were Senate Bill 4, which changed the structure of state and county boards of elections and the State Ethics Commission, created partisan appellate judicial elections, and stripped the newly elected governor of the power to administer the Industrial Commission, and House Bill 17, which transferred power from the state Board of Education to the Superintendent of Public Instruction.

There has already been extensive litigation over the substance of those bills rather than the special session itself.

Bob Phillips, Executive Director of Common Cause NC, said Tuesday they are considering whether to appeal the opinion to the state Supreme Court.

“There was no justifiable reason for the special legislative session that was hatched in secrecy,” he said in a news release. “It was a deliberate effort by Republican legislative leaders to keep citizens in the dark about their plans to engage in a nakedly partisan power grab.”

Read the full appellate opinion below.



COA Common Cause Challenge (Text)

Commentary, Courts & the Law, News

The week’s top stories on Policy Watch

Commentary:
1. Make no mistake. The budget failed because Republicans failed to compromise.

There is a temptation—and believe me, I understand it—to celebrate the fleeting nature of this week’s special session of the North Carolina state legislature as some sort of coup.

Resist that temptation, even if the sight of an ostensibly frustrated Phil Berger is a new one to these tired eyes.

Berger and his compatriots in the Republican caucus enjoyed near unchecked power in the last decade. A post-Obama surge of conservatives played a modest part in that, although the gerrymandering did its part too. [Read more…]

2. Pipelines, roads and railways: This is why you should care about Trump’s rollback of NEPA, a key environmental law

By the time the new Interstate 885 opens in Durham later this year, some of the people who conceived of the original project will have been long dead.

In the works for 60 years, the East End Connector, as Durhamites call it, funnels traffic over four miles from NC 147 to US 70 and onto I-85, to reduce congestion on surface streets.

But environmental laws did not slow-walk the project. In fact, when the highway was first conceived in the early 1960s, there was no EPA. There was no Clean Water Act, no Clean Air Act. There was no NEPA — National Environmental Policy Act. All those laws were passed in the 1970s. [Read more…]

3. NC’s new “Raise the Age” law appears to be off to a promising start

New facilities and policies offer hope to 16 and 17 year-olds once consigned to the adult corrections system

Tall trees and a rocky, woodsy landscape envelop the C.A. Dillon juvenile detention campus in Butner. Save for the tall metal fence that rings the confinement building, the area could be mistaken for a summer camp or private school grounds.

The feeling that greets the visitor of wanting to go for a group hike or play flag football with old pals quickly diminishes inside, however, as the smell of fresh paint permeates the building and barred windows and concrete walls remind you that this isn’t a fun trip away from home. But it won’t be like that forever – after all, this isn’t jail.[Read more…]

4. State lawmaker’s failure to disclose business ties highlights broader ethics enforcement problem

State Rep. Holly Grange (R-New Hanover) failed to disclose a business owned and operated by her husband on state Statement of Economic Interest (SEI) forms for several years, according to documents reviewed by Policy Watch.

In North Carolina, public officials are required to disclose connections to all non-publicly owned companies by which they or their immediate family members are employed or in which they have an interest.

Grange’s husband, David Grange, registered his “consulting” business Osprey at Compass Pointe LLC with the state Secretary of State’s office in July 2015. Yet the business did not appear on Grange’s SEI form in 2016, when she was first appointed to a state House seat to replace incumbent Rick Catlin. She ran unopposed for the seat in that year’s election. Rep. Grange also did not list the business on her SEI forms in 2017 or 2018. In February 2018, the business was administratively dissolved by the Secretary of State’s office for failure to file an annual report. [Read more…] Read more