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, 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)

Courts & the Law, Defending Democracy, News

A “Raise the Age” breakdown by districts across the state

North Carolina officially implemented Raise the Age legislation Dec. 1, 2019 — the change in law means that most 16- and 17-year-olds no longer have to go through the adult criminal justice system and anyone under the age of 18 no longer goes to adult jail.

The Department of Public Safety’s Juvenile Justice division has been hard at work making sure law enforcement, court staff and stakeholders are updated about how the change is coming along. Part of its implementation process involves keeping close track of the numbers — how many Raise the Age complaints are made, how many juveniles are detained, and at some point, trying to figure out the rate of recidivism.

The first set of numbers associated with the new law was released earlier this month at the Juvenile Jurisdiction Advisory Committee meeting as part of an initial interim report to lawmakers about Raise the Age.

As reported by NC Policy Watch yesterday, so far, the projections the committee made have generally been close to, or a little under, what was expected. It’s a trend Deputy Secretary William Lassiter hopes holds.

The committee projected 1,683 Raise the Age complaints in the month of December – the first month of implementation – but preliminary data shows there were only 407. It was anticipated there would be 60 juveniles detained that first month, and reports show there were 78.

The numbers can and probably will change, after all, investigations are still ongoing. The committee will complete another interim report in May, though, to give lawmakers and the public a more accurate picture of how implementation is taking off.

Check out the table below for a preliminary district breakdown of Raise the Age complaints in December.

Raise the Age complaints by district

The age of juvenile jurisdiction was officially raised as of Dec. 1 to include 16- and 17-year-olds. The following table reflects preliminary data from the month of December in 2019 and shows how many Raise the Age complaints were made to each district in the state. A Raise the Age complaint is defined as complaints received on juveniles ages 16 and 17. The data was provided by the Department of Public Safety's Juvenile Justice division and is current as of Jan. 8, 2020.
District numberNumber of Raise the Age complaints
District 01<5
District 026
District 0312
District 0410
District 05<5
District 06<5
District 0710
District 08<5
District 09<5
District 1024
District 1112
District 12<5
District 13<5
District 149
District 1510
District 166
District 175
District 189
District 1916
District 206
District 215
District 229
District 235
District 24<5
District 25<5
District 2616
District 2716
District 2811
District 2911
District 30<5
Courts & the Law, Defending Democracy, News

Today: Absentee by-mail voting kicks off March primary election

ATLANTA, GA – NOVEMBER 06: Voters cast their ballots at a polling station set up at Grady High School for the mid-term elections on November 6, 2018 in Atlanta, Georgia. Georgia has a tight race to elect the state’s next Governor. (Photo by Jessica McGowan/Getty Images)

The State Board of Elections will begin mailing out absentee by-mail ballots today to voters who request them for the March primary election.

Any North Carolina voter is eligible to vote absentee by mail. Primary Election Day is March 3 and the absentee by-mail ballots must be requested from the voter’s county board of elections by 5 p.m. Tuesday, Feb. 25. Voters will select the political party nominees to appear on the Nov. 3 General Election ballot.

“By-mail absentee voting officially launches the 2020 primary election,” said State Board Executive Director Karen Brinson Bell in a news release. “Any registered voter in North Carolina may request a mail-in absentee ballot for the primary.”

To vote absentee, voters must complete a 2020 state absentee ballot request form. Voters who submit a valid request will receive a ballot from their county board of elections. The materials will include detailed instructions for how to complete and return the ballot, according to the State Board.

There are changes to the absentee voting process this year, including that an absentee request form is only valid if returned to the county board by the voter, the voter’s near relative, legal guardian or Multipartisan Assistance Team (MAT); forms cannot be emailed or faxed; and, if a voter needs help completing the request form due to blindness, disability or inability to read or write and a relative or legal guardian is not available, they can get help from another person, who must list their name and address on the form.

There are five primary ballots available to voters representing the following political parties: Constitution, Democratic, Green, Libertarian and Republican. Voters affiliated with one of those political parties must vote with that primary ballot — unaffiliated voters can choose a Republican, Democratic or Libertarian primary ballot, or a nonpartisan one if available.

One-stop, in-person early voting for the primary begins Thursday, Feb. 13 and runs through Saturday, Feb. 29. A photo-ID is not required to vote in the primary election.

Visit the State Board’s absentee voting page online for more information.