Tapped: The Prospect Group Blog

Law Professors Denounce Sessions’s Push for Case Quotas for Immigration Judges

In a letter sent to Attorney General Jeff Sessions on Tuesday, more than 120 law professors denounced the Justice Department’s new performance metrics for immigration judges as a danger to due process and an infringement on judicial independence.

Administrative and immigration law professors from at least 30 states warned that, while the current backlog of immigration cases, many of which are asylum requests, awaiting adjudication (more than 700,000, at last count) warranted action by the Justice Department, case quotas would come at too great a cost.

“Instead of providing adequate resources or implementing other case management tactics, the Department of Justice has proposed the case completion quotas,” the letter reads. “We believe that these quotas show disregard for the importance of independence, including avoidance of a conflict of interest, in adjudication. The quotas seem to align with President Trump’s displeasure with the need for process in immigration cases.”

Following an Executive Office for Immigration Review (EOIR) memo released in April, immigration judges are now expected to complete at least 700 cases per year and have fewer than 15 percent of their rulings overturned on appeal. Judges who fail to meet the quota will be deemed unsatisfactory or “needing improvement” and could face discipline.

The letter’s authors argue that the new quotas will pressure immigrant judges already stretched thin to rush complicated and weighty cases, thereby denying immigrants enough time to find a lawyer or collect evidence for their case. Instead of quotas, the law professors said the Justice Department should hire more judges, provide more support staff, and increase funding to the courts (solutions largely backed by Democrats and Republicans alike, as well as immigration judges themselves).

Immigrant advocates warn that the quotas could lead to an increase in erroneous deportations of immigrants, forcing many to return to the violence and persecution in their home countries that led them to apply for asylum in the first place.

“The purpose of implementing these metrics is to encourage efficient and effective case management while preserving immigration judge discretion and due process,” an EOIR spokesperson told the Prospect in response to the letter.

Immigration judges are technically considered attorney employees of the Justice Department and, as such, don’t have the same independence that other federal judges might have. This in-between status has left immigration courts particularly vulnerable to political pressure. And in the case of the Trump administration, Sessions has begun to repurpose the courts as an extension of his hardline anti-immigrant ideology.

In addition to the new quotas, the attorney general has also tied the hands of immigration judges by eliminating a tool used for organizing their case docket, known as administrative closure. Administrative closure, much like law enforcement’s prosecutorial discretion, allows judges to prioritize cases. It also provides immigrants stuck in a visa backlog or awaiting other legal relief a temporary reprieve from deportation.

Sessions, along with Trump, has signaled a clear distaste for the asylum system as a whole and a cynicism toward the majority of immigrants seeking refuge, saying they have taken advantage of the system and falsely claiming that 80 percent of asylum applications are without merit. Meanwhile, Trump has voiced a more fundamental issue with due process for non-citizens, even tweeting that undocumented immigrant should be deported “immediately, with no Judges or Court Cases.”

Faced with the pressure to meet strict quotas and stripped of the ability to handle their case dockets efficiently, judges may have little option but to cut corners or risk losing their jobs. The unprecedented structural changes pushed by Sessions amount to a greasing of the court system so as to create a slicker path to deportation for as many immigrants as possible.

Capitalism? Democrats Say, Pfoo!

The biennial Gallup poll on Americans’ sentiments toward capitalism and socialism came out this week, and the numbers tell us a lot, particularly about today’s Democrats. As in the 2016 poll, the share of Democrats who have a favorable view of socialism remains both high and essentially unchanged: 58 percent two years ago, 57 percent today.

In this year’s poll, however, for the first time the share of Democrats who view socialism favorably has taken a non-trivial lead over the share who feel the same way about capitalism. Two years ago, 56 percent of Democrats had a positive view of capitalism, essentially tying it with socialism (however much that meant that some Democrats had a positive view of both, and, for all we know, a positive view of a whole lot of things). This year, by contrast, the share of Democrats viewing capitalism positively tumbled to 47 percent—a full ten points beneath the share looking kindly on socialism.

It’s easy to read too much into these numbers (after all, yesterday’s poll showed that 16 percent of Republicans had a positive view of socialism, though this finding, like much of quantum mechanics, runs counter to reality as humans have experienced it). When many Democrats hear the word “socialism,” they think of such popular social democratic programs as Social Security and Medicare, or the single-payer systems and free public universities that exist in Western Europe. When many Republicans hear the word “socialism,” they think of Joseph Stalin.

That said, it’s not hard to see why even minimally sentient beings would be increasingly wary about capitalism, most certainly as it’s currently practiced in the United States. Just yesterday, as Gallup was releasing its data, the Financial Times produced its own analysis of profits, profit margins, and wages in the United States. With 90 percent of the companies in the S&P 500 now having filed their second-quarter reports, profits have risen by 25 percent over the same period last year, and profit margins—how much companies profit from their gross revenues—have hit 11.8 percent, which the FT says is “the highest level since financial information provider FactSet began recording the data in 2008.”

How very nice. Of course, as corporations rake in more profit from their sales, the share of those sales going to wages likely declines—and indeed, that’s exactly what’s happened. That partly explains why real wages have actually gone down over the past year when the rate of inflation (which by historic standards is still pretty low) is taken into account.

So—record-high profit margins, with record amounts then being shoveled to major shareholders through all-time-high share buybacks, while wages stubbornly sag despite low unemployment levels. Americans—Democratic Americans in particular—likely aren’t able to quote you the numbers, but they certainly sense that big money is being generated, and most Americans aren’t getting it.

No wonder Democrats are more and more dubious about capitalism. They should be.

Tax Cuts for the rich. Deregulation for the powerful. Wage suppression for everyone else. These are the tenets of trickle-down economics, the conservatives’ age-old strategy for advantaging the interests of the rich and powerful over those of the middle class and poor. The articles in Trickle-Downers are devoted, first, to exposing and refuting these lies, but equally, to reminding Americans that these claims aren’t made because they are true. Rather, they are made because they are the most effective way elites have found to bully, confuse and intimidate middle- and working-class voters. Trickle-down claims are not real economics. They are negotiating strategies. Here at the Prospect, we hope to help you win that negotiation.

Federal Employee Union Begins ‘Shame on HHS’ Campaign

The Trump administration’s targeting of federal employee unions is unsurprising, considering its transparent disdain for labor. But this Friday, a major federal union plans to fight back with a union-wide campaign.

The National Treasury Employees Union, which represents 150,000 federal workers in 31 agencies, recently filed a grievance against the Department of Health and Human Services over “bad faith bargaining tactics.” In the grievance, NTEU says that HHS negotiators broke a number of bargaining rules during a negotiation over the union contract. HHS plans to eliminate telework and alternative-schedule options as well as public transportation subsidies and other benefits.

NTEU claims that HHS negotiators refused to explain the Trump administration’s proposals, and demanded counterproposals within three days. According to a statement from NTEU Chapter 254, after just one full day of bargaining, the department invited a mediator into negotiations—an “obvious effort to check that box so it can move forward to the Federal Service Impasse Panel.” Such a move would essentially declare that the two sides came to an impasse and could force the contract to move to the jurisdiction of the presidentially appointed panel.

Just one day later, HHS ended bargaining and submitted its final offer. According to the NTEU grievance, ground rules state that the bargaining schedule is 18 weeks.

The Trump administration’s contract proposals also include requiring union officials to pay rent for their offices, even though those on-site premises have been a part of federal union contracts for years. According to NTEU, the new language that HHS has offered is “almost word-for-word” the language in the illegal contract forced upon workers within the Department of Education in March, when, after negotiations with the American Federation of Government Employees union fell apart, the department announced a new “collective bargaining agreement” with widespread changes and reduced benefits—changes the union said it had not agreed to.

This Friday, NTEU is encouraging all members (not just HHS employees) to use the social media hashtags #SHAMEOnHHS and #UnionStrong, as well as to wear NTEU shirts and stickers bearing the hashtag.

Also on Friday, NTEU President Tony Reardon will deliver a petition to HHS Secretary Alex Azar, signed by nearly 5,000 HHS workers, asking the HHS negotiators to withdraw the proposals that target employee benefits.

“Today it is HHS,” reads a blog post on the NTEU website calling for union-wide solidarity. “Tomorrow it could be your agency.”

With executive orders aimed at curbing the power of federal unions, and attacks on benefits in both the Departments of Education and Agriculture, that may not be hyperbole.

 

Michael Brown’s Body, Struggle, and Progress

On August 9, 2014, Darren Wilson shot Michael Brown dead in Ferguson, Missouri. In a final act of white supremacy, the police could not be bothered to cover up his mortal remains. As his body lay in the hot Missouri sun, a new civil rights movement erupted.

Because Michael Brown died that day, Wesley Brown now heads to the St. Lous County prosecutor's office.

Like Watts and Detroit and Crown Heights, Ferguson became shorthand for American racial injustice and unrest. It also served as a catalyst for a small group of people to rise up and underscore that “Black Lives Matter,” a simple rendering of a human condition that sparked an international movement.

Ferguson laid bare the instruments of institutional racism. White officials had long balanced the town’s books on the backs of African Americans through a devious if banal regimen of fines and court fees. The outrage, the headlines, and the federal investigations compelled the resignations of the police officer who killed Brown, the police chief, a municipal judge, and several other municipal officials.

Bob McCulloch, the long-time St. Louis County prosecutor charged with investigating the young man’s death was made of sterner stuff. He refused to step aside and bring in a special investigator to handle the probe into the shooting—even though his own police officer father had been killed by a black man, even though he had deep connections among Ferguson’s finest. Riots broke out again after a grand jury declined to indict the officer who shot Brown.

Michael Brown was about same age as Wesley Bell’s own son. Bell’s own father was cop. After Brown’s death, Bell began preaching a gospel of community policing. He ran for Ferguson City Council and won. African Americans had the power of the vote secured by humiliation, bloody beatings, and death. That right had atrophied but was newly ascendant. Then the city council member decided to go after the prosecutor’s seat.

Bob McCulloch personified The System. Wesley Bell campaigned on community policing, promises to reform cash bail, and a pledge not to seek the death penalty. He won a passionate and diverse following of local and national supporters.

What he didn’t have, most people thought, was a chance at winning. 

On Tuesday, he polished off McCulloch by a wide margin in Democratic primary. There are no other opponents on the November ballot.

Frederick Douglass had this to say about struggle, progress, and the challenge before Africa’s descendants in America:

If there is no struggle, there is no progress. Those who profess to favor freedom and yet deprecate agitation are men who want crops without plowing up the ground; they want rain without thunder and lightning. They want the ocean without the awful roar of its many waters.

This struggle may be a moral one, or it may be a physical one, and it may be both moral and physical, but it must be a struggle. Power concedes nothing without a demand. It never did and it never will.

Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong, which will be imposed upon them, and these will continue till they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress. …

If we ever get free from the oppressions and wrongs heaped upon us, we must pay for their removal. We must do this by labor, by suffering, by sacrifice, and if needs be, by our lives and the lives of others.

$2 Trillion Here, $2 Trillion There, and Soon We’re Talking Real Money

I know you know that Republicans throw money at the rich. Doctrines may shift, Russia may go from bad guy to BFF, NATO may defend the free world one day and dilute our sovereignty the next, but tax cuts for the rich are the one True North of Republican cosmology. Without it, the party perishes, not only from diminished campaign contributions but from lack of raison d’être.

As to just how much money Republicans throw at the rich, the nonpartisan Institute on Taxation and Economy Policy (ITEP) released a report last month that’s gone largely unremarked in the media but that makes starkly clear just how faithful a friend and lapdog the GOP has been to our wealthiest friends and neighbors. What ITEP did was to total up all the tax reductions to the rich enacted since George W. Bush became president in 2001, subtracting from that total the restoration of higher tax rates on the rich that went through under President Barack Obama.

Here are the numbers: Since 2001, the income tax cuts for the wealthiest 1 percent come to $1,366 billion. The estate tax cuts for the wealthiest 1 percent come to $838 billion. Subtract from these cuts the hikes on the wealthiest 1 percent enacted during the Obama intermission, and we have a grand total of $1,924 billion that the wealthiest have been able to pocket for their rainy day funds.

I think that’s close enough that we can round it up a bit to an even $2,000 billion—which, for those of you who’ve been counting the zeros, is actually $2 trillion.

And that doesn’t count, of course, the additional $100 billion in cuts to capital gains taxes that the administration now says it plans to implement administratively by changing how it calculates the initial value of investments. That $100 billion, too, would flow chiefly to that same 1 percent.

But back to that $2 trillion: By a curious coincidence, that was also the amount that the administration proposed to save in its (mercifully, not very enactable) 2019 budget by reducing spending on Medicaid ($1.4 trillion), Medicare ($530 billion) and Social Security ($25 billion)—which comes in at a cool $1.955 trillion. As with the tax cut to the 1 percent, let’s just round that to $2 trillion, too.

So: Republican presidents and congresses have cut the taxes of the 1 percent by $2 trillion over the past 17 years, and Trump has now proposed to cut spending on Medicaid, Medicare, and Social Security by the same $2 trillion.

Democratic campaign consultants, do with this what you will.

Tax Cuts for the rich. Deregulation for the powerful. Wage suppression for everyone else. These are the tenets of trickle-down economics, the conservatives’ age-old strategy for advantaging the interests of the rich and powerful over those of the middle class and poor. The articles in Trickle-Downers are devoted, first, to exposing and refuting these lies, but equally, to reminding Americans that these claims aren’t made because they are true. Rather, they are made because they are the most effective way elites have found to bully, confuse and intimidate middle- and working-class voters. Trickle-down claims are not real economics. They are negotiating strategies. Here at the Prospect, we hope to help you win that negotiation.

Labor's Astonishing Missouri Win — and the Opening It Portends

Ohio’s razor-thin vote for an open House seat got most of the headlines, but the bigger story was the defeat of a right-to-work ballot proposition in supposedly right-wing Missouri.

The bill to make Missouri America’s 28th state with a “right to work” law was passed by the legislature in 2017 and signed by then–Republican Governor Eric Greitens. But the labor movement qualified a ballot initiative overturning the measure, and it passed by a margin of 2 to 1, including in very conservative parts of a state carried overwhelmingly by Trump.

The “right to work” option was added to labor law by the 1947 Taft-Hartley Act. Passed by the Republican 80th Congress over President Truman’s veto (he denounced it as a “slave labor act”), Taft-Hartley allows states to pass laws permitting workers to opt out of paying union dues even when a majority of workers sign union cards.

The name “right to work” was always a fraud. Even in states without such laws, anybody can take a job at a unionized facility. Workers merely have to join, or if they don’t want to join, to pay dues after they are hired.

“Right to work” makes it much harder to organize in such states. Until the last few decades, these measures were largely confined to the anti-union South and Mountain West. Lately, they have been enacted in Michigan, Indiana, and Wisconsin. In the past decade, they've been beaten with ballot initiatives in California and Ohio.

The Missouri vote not only extends and intensifies that success in a supposedly far more conservative state. It shows the latent appeal of pocketbook issues and trade unionism even in Trump country. It shows that the labor movement may be down, but it is far from out.

In Missouri, just 8.7 percent of workers are members of unions. But most working families know someone with a union job and they know the difference a union can make.

The right to have a union signals concern for the forgotten working class. By trying to crush labor, Missouri Republicans signaled not individual rights—the usual pitch for the misnamed “right to work” law—but their contempt for working people, who got the message.

The Missouri outcome also bodes well for the re-election of Senator Claire McCaskill, one of the supposedly endangered Democrats up this fall. More importantly, it signals the resurgence of the labor movement—and reminds Democrats that progressive economics are the indispensable ingredient for success on the beaten-down American heartland.

FCC’s Proposed Lifeline Restructuring Only Exacerbates the Digital Divide

At a House hearing regarding expanding broadband internet access across the country on July 25, Federal Communications Commission Chairman Ajit Pai said that closing the “digital divide” was a “top priority” during his tenure as chairman.

If that’s the case, then he certainly has a surprising approach to doing so.

In November 2017, the Republican-dominated FCC leadership voted to consider a proposal to restructure the Lifeline program—sometimes called “Obamaphone” by conservative critics—which provides subsidies for broadband and phone access to low-income Americans. The program provides a $9.25 per month discount to individuals or families who are either at or below 135 percent of the federal poverty guidelines—$16,389 per year for an individual, $33,885 per year for a family of four—or who qualify for other government assistance programs, like SNAP or Medicaid. 

The obvious effect of the proposal is to limit access to phone and broadband service to low-income Americans, which of course would widen the digital gap that Pai claims to want to close. According to a 2017 Pew Research Center poll, almost 30 percent of adults with an income below $30,000 per year don’t have smartphones, and roughly half don’t have home broadband services or a computer of some kind. Among adults making $30,000 to $99,000 a year, 81 percent have a smartphone, 87 percent, a computer of some kind, and 80 percent, broadband internet. Nearly 100 percent of adults with an income over $100,000 have access to all three.

As of 2015, 12.5 million people subscribed to the Lifeline program, with 400,000 subscribers living on tribal lands. Two tribal organizations, the Crow Creek Sioux Tribe and the Oceti Sakowin Tribal Utility Authority, along with several smaller wireless carriers, have sued the FCC over this proposal, which seeks specifically to cut an enhanced $25 subsidy for tribal residents in “urban” areas, and makes the enhanced subsidy unavailable to subscribers who buy from wireless resellers, effective immediately. Tribal groups even submitted a petition to the FCC to hold off on enacting the proposal until the court case is decided, but the FCC denied the petition.

The restructuring would also affect survivors of domestic abuse and those living in abusive households, a report by Mother Jones found. Domestic violence affects women’s ability to be financially self-sufficient, and abusers often cut women off from various support systems, making subsidized cell phones a literal lifeline to those who would otherwise be separated from society, the report finds.

Residents of Puerto Rico, who are still recovering from the devastation to cell phone and internet infrastructure from Hurricane Maria, are also in the crossfire of this restructuring: 17 percent of Puerto Ricans use Lifeline, and the proposed cuts could be a “death sentence” for subscribers, Luis Belén, CEO of the National Health IT Collaborative for the Underserved told Newsweek. The restructuring would also affect veterans, who make up 12 percent of the program and the many more active duty military members and their families who would qualify for the Lifeline program.

The proposed restructuring would slash the benefits provided through Lifeline by limiting subsidies. Recipients would only be eligible for discounts through “facilities-based providers,” such as Comcast, which have their own physical network infrastructure to provide wireless service to consumers. This is opposed to “wireless resellers,” such as Virgin Mobile or Straight Talk, which are smaller companies that buy network access from these larger facilities networks and resell this access to consumers. 

These “mobile virtual network operators” (MVNOs) usually offer cheaper, prepaid phone options that don’t require good credit to purchase. Such a move would effectively cut off 70 percent of Lifeline users that rely on wireless resellers for coverage, and instead push subscribers to larger providers such as AT&T and Verizon.

The plan also proposes an annual cap on Lifeline disbursements, changing the original Lifeline structure in which the amount spent on disbursements was more flexible. Prior to this proposal, if disbursements exceeded 90 percent of the overall Lifeline yearly budget, a report would have to be filed to explain how funding was used, but ultimately, the increased spending was allowed. 

If the proposal is enacted, the new budget would have a self-enforcing mechanism that would put a cap on disbursement spending automatically if it overtook its allotted portion of the overall budget, limiting the flexibility of disbursement spending. This type of cap could potentially bar those who qualify for Lifeline from ever getting subsidies, depending on where the cap is set.

The restructuring proposal could take effect in October, pending approval by the Office of Management and Budget.

The proposal is supposedly aimed at cutting down fraud and abuse, despite claims from over 200 advocacy groups—including the ACLU, the NAACP, and Common Cause— in an open letter to Pai that Lifeline has aided in reducing the digital divide in rural and poor communities. That isn’t stopping the FCC from going ahead with a restructuring proposal that targets millions of marginalized people.

A program that takes away vital connections to today’s online world from veterans, American Indians, low-income Americans, and others seems hardly a solution for closing the digital divide— if anything, it works to exacerbate it.

Why Dems Should Make a $15 Wage Their First Order of Business

Let’s make the increasingly likely assumption that Democrats take back the House in November. Nothing symbolizes concern for working people better than a higher minimum wage. And nothing jams Republicans quite as starkly as making them take a vote on this.

Do you doubt that? Here is a true fact. In the election of 2004—that’s the one where John Kerry booted a winnable election—activists in Florida qualified a ballot initiative raising that state’s minimum wage by one dollar, from $5.15 to $6.15

Well, you might say, that doesn’t affect all that many people, right? John Kerry was asked to come down and campaign for it. He declined.

How do you think the initiative did in this quintessential swing state, which George W. Bush carried in that election?

The minimum-wage initiative won overwhelmingly, with 71 percent of the vote. It carried every single Florida county, including some very conservative ones where the sort of working people who later voted for Donald Trump care about their paychecks.

The minimum-wage initiative won by three million votes. It received about two million votes more than Kerry did, and a million votes more than Bush did. If Kerry had accepted the invitation to go out on street corners and campaign for the minimum-wage hike, he might have been elected president.

So as I was saying, when Democrats take back the House, they should make a vote on a $15 minimum wage their first order of business. Any questions?

The Tax Act’s Unfinished Business

The wealthiest Americans were already pretty happy with the 2017 Republican Tax Act. It bequeaths corporations with $1.7 trillion in tax cuts at the expense of funding for social programs, and 83 percent of the law’s benefits will go to the top 1 percent by 2027, when most of the individual income changes will have expired.

But greed works in not-so-mysterious ways, and it seems these gifts weren’t enough. During the G20 summit earlier this month in Argentina, Treasury Secretary Steven Mnuchin told The New York Times that the Trump administration was considering dodging Congress to reduce capital gains taxes through regulation. Larry Kudlow, Donald Trump’s top economic adviser, has long advocated indexing capital gains to inflation, meaning that when an investor sells an asset, the initial price they paid for it would be adjusted for inflation so that the amount they’re taxed on (how much they earned when they sold it) would be lower.

The possible Treasury action, reported by the Times on Monday, is likely illegal. But as the Prospect outlined in its summer issue, which was devoted entirely to the 2017 Tax Act, Trump and his allies may stop at nothing to slash taxes for the wealthy. Even in the face of strong opposition, Republicans and the administration were determined to get their bill through, despite the fact that the tax cuts were demonstrably unpopular among voters. (The articles in that issue cover everything from who benefits the most, to how Democrats should respond, to debunking the claims of those promoting the law.)

During the 2016 presidential campaign, Trump had promised to close the carried interest loophole that allows hedge fund managers to pay the lower capital gains rate on the money they make from an investment, but the loophole survived the 2017 bill and doesn’t seem likely to be revisited in the so-called Tax Reform 2.0 proposals currently being floated by Republicans on Capitol Hill.

Is ‘Jeopardy!’ Crossing Racial Lines?

Alex Trebek, longtime and iconic Jeopardy! Host, announced his possible retirement on Sunday. At 78 years old and recently having had brain surgery, Trebek told Fox News that he is “50-50” for remaining host after his contract expires in 2020.

Trebek’s departure, of course, wouldn’t be the end of the show, but it would leave the podium open for a new host. Trebek gave two recommendations for his potential heirs.

“The fellow who does play-by-play for the Los Angeles Kings, they should consider him,” Trebek told TMZ. He’s talking about Alex Faust, a 28-year-old announcer for the Los Angeles hockey team.

For his second pick, Trebek said, “There is an attorney, Laura Coates, she’s African American and she appears on some of the cable news shows from time to time.”

Why was her race one of her primary identifiers? There’s plenty more that Trebek could have cited from Coates’s impressive resume. Coates is a Princeton grad, a successful lawyer for the Department of Justice, a book author, and a legal analyst for SiriusXM and CNN.

Giving him the benefit of the doubt, maybe Trebek just wanted to highlight the progressiveness of the show. But even if this is the case, true acceptance would be highlighting Coates’s achievements as making her qualified, rather than her race.

Trebek didn’t say that Faust was white and male, but I suppose he didn’t have to. Since Jeopardy! debuted in 1964, the host of the show has always been a white male.

Saturday Night Live has used Jeopardy! as a vehicle to highlight the divisiveness of race in America through their “Black Jeopardy” skits. Typically, these skits are formatted like a regular Jeopardy! game show (with Kenan Thompson as the host, Darnell Hayes aka “Alex Treblack”) with two black contestants and one white contestant, whose ignorance about the nuances of African American culture is exposed through the questions and responses.

It will be interesting to see how viewers of the real Jeopardy!—whose average age is 65—will react to the possibility of a young black woman hosting the nightly weekday show, possibly making parts of the sardonic SNL skit a reality.

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