Author Archive for Lesley Chan

Trump Pushes Travel Ban Towards U.S. Supreme Court

The Trump Administration recently filed a petition to the United States Supreme Court requesting it hear its appeal of a decision by the United States Court of Appeals for the Fourth Circuit regarding Trump’s controversial travel ban. The Fourth Circuit Court upheld a lower court’s decision in Maryland which blocked implementation of the travel ban. Another lower court in Hawaii also blocked implementation of the travel ban. Trump signed the travel ban into effect via executive order earlier this year. The Ninth Circuit Court heard oral arguments from the government requesting reversal of the Hawaii court’s decision, but a decision on that appeal has yet to be issued. In addition to the petition to the Supreme Court to review the Fourth Circuit Court’s decision on the merits, the Trump Administration has asked the Supreme Court to grant stays of the lower court rulings in both Maryland and Hawaii. The Supreme Court generally makes a decision on stays quickly, and if it does in this case, the travel ban will be reinstated while the nation, and world, wait to hear its decision regarding the Fourth Circuit.

TrumpThe Arguments For and Against the Travel Ban

Trump’s travel ban targets individuals from six predominantly Muslim countries, temporarily preventing them from entering the United States for a period of 90 days. According to the Trump Administration, the purpose of the ban is to keep the country safe from terrorism until proper vetting procedures are put into place. In its petition to the Supreme Court, the Administration argues the President has broad power pursuant to the Constitution and Acts of Congress to stop outside individuals from entering the United States when he deems it a necessary security measure, particularly when the countries involved “sponsor or shelter” terrorist activity.

But challengers to the travel ban say it violates the First Amendment, which prohibits the government from interfering with the free exercise of religion. They further argue the travel ban is a clear abuse of the President’s power, resulting from his hostile views toward Muslims as demonstrated during his presidential campaign.

Supporters of Trump and his travel ban may be looking to the President’s Supreme Court nominee Neil Gorsuch for its reinstatement, but it is difficult to say where the newly appointed justice stands on the issue. In his confirmation hearings earlier this year, Associate Justice Gorsuch emphasized the importance of protecting freedom of religion, as guaranteed under the Constitution. During his testimony, he went on to state the Supreme Court has held that due process rights extend to undocumented individuals in the United States, and he would apply the law.

The Issues That Are Now Before the Supreme Court

A key legal question in this case is the constitutionality of Trump’s executive order implementing the travel ban, and whether he has exceeded the scope of his presidential authority by barring entry of aliens into the United States. In addition to its argument that the President has broad authority to suspend or restrict entry when he deems it in the nation’s interest, the Trump Administration asserts in its petition that the Supreme Court has never nullified religion-neutral government action based on mere speculation about an official’s ill-disposed motivations, particularly when such speculation is based on statements made by the official during a political campaign. The Administration requests the Supreme Court grant its petition for review of the Fourth Circuit Court’s decision before its summer recess begins end of June, which would allow both sides to prepare for oral argument when the Supreme Court’s new term begins in the fall. The Supreme Court has asked the challengers to the travel ban to respond to the petition by June 12.

All eyes will be on the Supreme Court as it decides fairly soon what to do with the government’s urgent requests, decisions that will be highly impactful in the months to come. It will take five votes from the Supreme Court justices to stay the two lower court decisions blocking the travel ban, and four votes for the petition for review of the Fourth Circuit Court’s decision to be granted. The Supreme Court’s ruling on the stay requests is expected soon; if granted, it will immediately reinstate the travel ban. This poses a potential problem for challengers to the travel ban, which imposes a 90-day restriction on individuals trying to enter the United States. If the Supreme Court grants review of the Fourth Circuit Court’s decision, and it is expected it will (in light of the constitutional issues at stake regarding the scope of a president’s power), the travel ban would no longer be in effect by the new Supreme Court term in the fall, making the case moot at that point.

20-Week Abortion Ban From Tennessee Means Big Changes for Pregnant Women

The governor of Tennessee recently signed a bill into law, effective July 1, which further regulates abortion in the state. Under this newly enacted measure, called the “Tennessee Infants Protection Act,” doctors are subject to criminal liability if they perform an abortion on a viable fetus and fail to show it was necessary to prevent the death or substantial and irreversible harm to the pregnant woman’s major bodily functions. A doctor may face license suspension and imprisonment for failing to comply with the act.

What Constitutes a “Viable” Fetus?

Under the act, once a fetus is viable, abortion is prohibited. “Viable” is defined as the stage of fetal development when an unborn child is able to survive outside the womb, with or without medical intervention. In Tennessee, there is a “rebuttable presumption” of viability at the gestational age of 24 weeks. (Gestational age is calculated from the first day of a pregnant woman’s last menstrual period.)

Though the act is often termed the “20-week abortion ban,” proponents of the act argue it merely requires doctors to assess fetal viability at the 20-week point in gestational age, if there is no medical emergency warranting a physician to immediately induce or perform an abortion. A physician’s good faith medical judgment that the fetus is not viable is an affirmative defense under the act.

What Medical Conditions Fall Under the Act?

If a physician determines the fetus is viable, the other affirmative defense is the abortion was necessary to save the pregnant woman’s life or prevent “serious risk of substantial and irreversible impairment of a major bodily function.” There are certain medical conditions which can complicate pregnancy and potentially cause death or “substantial and irreversible impairment of a major bodily function.” Examples include, but are not limited to, pre-eclampsia, diabetes, and multiple sclerosis. However, any condition relating to a pregnant woman’s mental health, regardless of the reason, does not fall within the purview of the act. In addition, the act does not include cases in which a woman’s own conduct results in substantial bodily harm or her death.

abortion banThe Impact of the Act on Pregnant Women in Tennessee

Among the potential obstacles for pregnant women in Tennessee are the narrow exceptions provided for an abortion to be permitted under the act. The prevention of death or substantial harm to a woman’s health are the only exceptions. Circumstances of rape or sexual abuse which can result in pregnancy are not exceptions under the act. This is particularly problematic if a woman does not know she got pregnant as a result of the abuse until later in her pregnancy. Additionally, what if the ultrasound routinely performed at 20 weeks reveals a serious abnormality with the fetus? Due to the narrow exceptions under the act, a pregnant woman receiving such news would automatically be prevented from making the right, albeit difficult, decisions for her and her family.

Further, if the woman’s physician determines an abortion is necessary to save her life or prevent substantial harm to her health, this conclusion is not enough. Under the act, a second physician, who is not professionally related to the first physician, must make the same determination and certify it in writing. This requirement can delay a woman’s ability to receive the necessary medical treatment for a potentially life threatening condition. As long as her condition is not an emergency (the need for an abortion is not immediate), she must get the second opinion. In addition, access to the second physician might be problematic. Per the act, the two physicians cannot be professionally connected, which means the pregnant woman, already in a fragile state, might need to travel in order to receive the second opinion. In the meantime, during such delays, family members—partners, spouses, young children—who depend on the pregnant woman will be negatively affected. Also, as mentioned above, the act does not allow conditions relating to mental health to come under the exception. However, such conditions can still have a detrimental impact on a pregnant woman and her loved ones.

Regardless of where one stands in this debate, the act will undoubtedly impact pregnant women in Tennessee who seek an abortion for various reasons. Proponents of the act question how a doctor or pregnant woman could proceed with a late term abortion, especially when it is proven the fetus could thrive as a human being outside the womb. On the other hand, the act’s opponents argue it infringes on a woman’s constitutional right to decide what is right for her and her body, as well as impedes her ability to do what is best for her family and work with her doctors regarding her health and well-being.

Not a Hate Crime, WV Supreme Court Determines about Attack on Gay Men

In April 2015, Steward Butler was in his car at a stoplight when he saw two men kissing on the sidewalk. He directed homophobic comments toward them, then exited his car and punched both men in the face. He was charged with battery, as well as violations of an individual’s civil rights under West Virginia Code Section 61-6-21(b), which makes it unlawful to injure a person because of that person’s “sex.” Though Butler was found guilty of battery, the lower court ruled he had not committed a civil rights violation under Section 61-6-21(b) because his assault on the men was not based on their “sex,” a term the court asserted was unambiguous and could not be expanded to include “sexual orientation.” The West Virginia Supreme Court upheld the ruling.

Sex v. Sexual Orientation

In reaching its decision, the Court explained that because use of the word “sex” in the statute was unambiguous, it should not be subject to interpretation and its plain meaning should be applied. Further, a word used in a statute is not deemed ambiguous merely because the parties in the case do not agree on its meaning.

The Court asserted that because the word “sex” was not defined in the statute, it was required to apply the “common, ordinary and accepted meaning.” In this case, it argued, “sex” and “sexual orientation” have different meanings. Referencing dictionaries to explain the difference, the Court explained that “sex” involves the physical structures such as genitalia and functions that separate males and females. By contrast, “sexual orientation” is about an individual’s sexuality or predisposition when it comes to sexual behavior and activity with other males or females.

Other States Have Included “Sexual Orientation” in Their Statutes

The Court went on to say that most of the states have enacted hate crime statutes, and there is an irrefutable distinction between “sex” and “sexual orientation” among the states. Six states, including West Virginia, use the term “sex” or “gender.” With respect to 20 of the states, the legislature used the term “sex” or “gender” in addition to the term “sexual orientation.” Six other states mention only “sexual orientation.” Some states use the terms “sexual orientation” in addition to “gender expression” or “gender identity.” Finally, certain states do not use any of these terms. Moreover, the Court pointed out that there have been prior court decisions on the matter involving states that use only the word “sex” in their hate crime statutes, and in these cases the courts did not define it to include or exclude “sexual orientation.”

Hate Crime

West Virginia’s Legislature Has Indisputably Left Out “Sexual Orientation”

According to the Court’s analysis of the legislature’s intent, it is undeniable that the term “sexual orientation” has been purposefully left out of the state’s hate crime statute. Since the statute’s enactment in 1987, the legislature has failed to add the term “sexual orientation.” Thus, the Court asserted, it must recognize the legislature’s intent to not include “sexual orientation” in the statute.

Dissenting Justices: Majority’s Take on the Law is Wrong

Justice Workman and Justice Davis wrote a dissenting opinion, arguing the majority opinion showed a detrimental misunderstanding of the phrase “because of . . . sex” in the statute. The Court is required to look at the entire language of a statute, and in this case, the dissenting Justices assert, the victims were assaulted because of their sex. In a hate crime situation, it is the bias and motivation for the crime that are ultimately punished, and the victims were clearly attacked because they were not behaving in a manner their assailant perceived men should behave with other men.

Justices Workman and Davis supported their argument with a case that came under Title VII of the Civil Rights Act of 1964. There, a female manager was denied partnership at her accounting firm and told she should act and appear more feminine. The case came before the U.S. Supreme Court, which concluded the phrase “because of . . . sex” in the federal statute included mistreatment due to gender stereotypes. According to Justices Workman and Davis, the woman was discriminated against not just because she had the anatomical parts of a female, but because she did not conform and act in the manner she was expected to as a woman in a corporate setting. But for her sex, Justices Workman and Davis argue, the woman in the accounting firm would not have been discriminated against. Likewise, but for their sex, the two male victims in this case would not have been attacked by the defendant.

That Victims Suffered “No Injustice” Is Highly Questionable

The Court stated in its opinion that, despite the dismissal of the hate crime charges, there was no injustice because the two counts of battery against Butler were upheld. This remark is undoubtedly an oversimplification of the meaning of hate crimes and what justice means for its victims.

Working Families Flexibility Act… Is It Actually Flexible?

The House of Representatives recently passed the Working Families Flexibility Act of 2017. Should the bill also pass in the Senate, the White House has announced that President Trump’s advisers plan to recommend he sign it into law.

What is the Working Families Flexibility Act?

If this bill becomes law, it will amend the Fair Labor Standards Act and change current rules regarding overtime pay in the private sector. In lieu of monetary overtime pay, under the bill, an employee can opt to receive compensatory time off equivalent to no less than one and one-half hours for each hour the employee works overtime. This option to receive paid time off has been available in the public sector for several years as a means of cutting costs.

The bill further provides that employees cannot accrue more than 160 hours of compensatory time. In order to opt for compensatory time, the employee must have worked at least 1,000 hours during a minimum 12-month period of continuous employment with the employer.

Working Families Flexibility ActWould Working Families Truly Have “Flexibility” Under the Act?

According to proponents of the bill, families would have more flexibility and control over their work schedules. They could use their compensatory time any way they choose, and take time off to tend to personal and family matters. Advocates of the bill could argue it empowers working families who often find it difficult balancing work and home life.

But opponents of the bill question the “flexibility” the proposed law would supposedly give working families. The primary concern is that an employee’s boss has the final say as to when the employee can take time off. An employee might waive overtime pay, expecting to take compensation time later (such as for a child’s recital or scheduled family trip), but the reality is requests for specified time off could be declined. If time off (and when it can be taken) is ultimately in the hands of the boss, how much flexibility can really be provided to working families under the Act? There are times when employers may even require an employee work overtime. If overtime pay is waived, it goes back into the pockets of businesses. Yet, use of earned compensatory time, when the employee desires to take it, is subject to the boss’ approval.

Why is a Paid Time Off Option Feasible in the Public Sector, and Why is it Dangerous in the Private Sector?

The answer to this is simple: unions. Unions create a layer of protection that is not as readily available in the private sector. Under the bill, in order for an employee to select compensatory time in lieu of overtime pay, there must be a written agreement if the employee is not represented by a union. But what if the employee is not fully aware of the consequences of surrendering earned overtime pay? The purpose of a collective bargaining agreement set forth between unions and employers is to preserve employee rights, including overtime pay, and lay out well-established procedures for grievances. It is a formal, structured agreement designed to protect, not just one person, but a group of individuals from foreseeable employer misconduct. This systematic safeguard would not be available to an unrepresented employee in the private sector who enters into an agreement waiving overtime pay. At a minimum, the thought of this is alarming, and given the questionable benefit of “flexibility” proposed by the bill, this type of an agreement seems fraudulent. If this bill becomes law, hard-working—unrepresented—families across the country, struggling to make ends meet, would be surrendering their right to overtime pay.

There is a provision in the bill which prohibits an employer from coercing an employee into taking compensatory time, and the bill’s proponents might argue that allowing agreements between employers and employees provides a protective measure against such coercion. Regardless, the for-profit nature of the private sector would undoubtedly make coercion inevitable, and employees without proper representation would become vulnerable.

So as the bill sits in the Senate, it is worth pondering whether this proposed law truly helps working families, or hurts them by providing an option that, at the outset seems fair, but actually later strips them of hard earned money. Though flexibility via compensatory time seems like a nice option for employees, perhaps maintaining legally mandated overtime pay is the best option for protecting working families and minimizing their potential loss.