Archive for the 'Laws' Category

Teenage Illegal Alien’s Right to an Abortion: Understanding Constitutional Rights of Non-Citizens

A 17-year old girl who realized she was pregnant while being held in an immigration detention center in has found herself at the center of an ongoing lawsuit over her right to get an abortion as an illegal immigrant. The girl is unnamed, known only as Jane Doe in all the documents associated with her. She was pregnant when she was originally caught, by herself, crossing the border in September. However, she did not realize she was pregnant until she was being held in a Texas shelter.

We’ve talked before about the shelters the government is required to provide to unaccompanied minors held for potential deportation, and the governments failures when it comes to providing basic necessities in these shelters. However, the government was denying something else this time–access to an abortion. Jane Doe had made it clear that she did not want to carry her pregnancy to term, but was repeatedly denied requests to leave the shelter to go to a clinic and get an abortion. In the meantime, she was instead taken from the shelter to–without her request–to attend religious counseling sessions to convince her not to get an abortion and to a clinic to get ultrasounds to show her sonograms of the fetus. As the timer for an abortion was obviously ticking down, eventually the ACLU was forced to bring a lawsuit on behalf to enforce her rights to an abortion.

This lawsuit is an interesting way to analyze a not well resolved issue of law: the rights of non-citizens to an abortion while in the U.S. However, it is worth first addressing the constitutional rights of non-citizens and illegal aliens in the U.S. Despite a bit of a misinformation campaign to the contrary, non-citizens inside the U.S. do have constitutional rights–end of story. But to explore both the lawsuit and the rights of non-citizens in general, we’re going to do a two-part article. This article will address non-citizen constitutional rights and the next one will deal with Jane Doe’s lawsuit itself.

abortionConstitutional Rights of Illegal Aliens

Right off the bat, illegal aliens have constitutional rights. Despite a great deal of information on the internet trumpeting that they do not, they do. Before you leave a comment on this article, they do. Seriously. Not only do they have constitutional rights, but the fact that they have these rights has been settled for over a century.  The issue has been settled since 1886.

The first cases addressing the issue all dealt with Chinese immigrants, primarily here as non-citizens working on the railroads. In three cases–in 1886, 1896, and 1903–it was firmly established that so long as you are within U.S. territory you have at least some constitutional rights regardless of your citizenship status or whether you are here legally or illegally. These non-citizens were ruled all the way back then to have 14th Amendment Equal Protection rights as well as the due process protections of the 5th and 6th Amendments.

The lynchpin of these rulings rested on the words of the Constitution of the United States: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” You notice that the first section of that quote says “citizen” while the rest of the sections simply say “person.” This is an important distinction; some rights are indeed generally reserved for citizens but due process and equal protection of law is guaranteed to any person in the United States. The Supreme Court has consistently stuck to this interpretation of the Constitution.

In 2001, they ruled once again that the 14th Amendment applies to all aliens–legal or illegal. Two decades earlier, they ruled against Texas preventing illegal alien children from attending grade school on Constitutional Equal Protection grounds. To make a complicated issue short, states cannot deny to anybody in their jurisdiction–including illegal aliens–equal protection under their laws.

The Supreme Court has, at least in the criminal context, also extended the protections of the First and Fourth Amendment. This includes rights such as search and seizure protections, a right against self incrimination, and political freedoms of speech and association.

Situations Where Non-Citizens Have Very Little Rights

While illegal aliens do have Constitutional rights, the federal government has an extremely broad discretion in how to treat these non-citizens–immigration proceedings. The Supreme Court has long established that immigration law is the realm of the fed and these proceeding are essentially an administrative matter above judicial review.

Immigration is treated as a national security and foreign policy matter–firmly in the realm of Congress. This means Congress can do things that might be constitutionally unacceptable if they were dealing with citizens; if only in the context of immigration and deportation proceedings. This power is further supported by the nature of immigration proceedings as administrative as opposed to criminal hearings–you don’t go to jail you just get deported.

When the Supreme Court upheld this in 1952, they did so in the context of Congress’ right to expel noncitizens who were former communists. However, they also made it clear what the message behind the ruling was, saying “In recognizing this power and this responsibility of Congress, one does not in the remotest degree align oneself with fears unworthy of the American spirit or with hostility to the bracing air of the free spirit…One merely recognizes that the place to resist unwise or cruel legislation touching aliens is the Congress, not this Court.”

What Do the Constitutional Rights of Non-Citizens Mean in the Abortion Context?

Non-citizens and illegal aliens have constitutional rights and, generally, enjoy protection of state law equal to that of a citizen. Depending on the state an illegal alien lives in, these rights are occasionally expanded by state law. While California likely offers the most additional protections, many states offer things such as in-state tuition, driver’s licenses, healthcare, and more. If somebody tells you non-citizens do not have constitutional rights or are not protected by the law, they are incorrect.

But before Jane Doe’s case there had never been a case specifically ruling on the constitutional rights of non-citizens to an abortion. Obviously there are a great deal of protections for citizen women seeking an abortion, although some might argue these protections are not enough. However, no court had ruled on the specific issue. Non-citizens enjoy equal protection of the law, but how does that apply when it comes to the law on abortion? Later this week we’ll look at Jane Doe’s case and find out.

A Scarlet Letter: Sex Offender Status to Be Put on Passports

Over a year since the law was passed the State Department has begun enforcing provisions of the International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders–more colloquially known as the International Megan’s Law or H.R. 515–requiring the passports of registered sex offenders convicted of sex offenses involving a minor to bear a notice saying, “the bearer was convicted of a sex offense against a minor.”

The International Megan’s Law was introduced back in 2015 and signed into law by former-President Obama on February 2nd, 2016. There are many provisions of the law, however the relevant ones here require sex offenders whose crime involves a minor to bear passports including the above discussed notice. The law also requires offenders to give law enforcement 21 days notice before travelling out of the country.

sex offenderThe law has obviously been in effect for over a year, but as of a few days ago the State Department will begin revoking the existing passports of covered sex offenders and requiring them to apply for new passports bearing the notice. The goal of this law is to target and eliminate sex tourism, a serious issue. According to the State Department, the passport notice and provisions of the law will not prevent a sex offender from leaving the country altogether or affect the validity of their passports in any way–although they do acknowledge that other countries may take a different approach.

Despite these reassurances, there have been some who have raised questions about the legality of these provisions. An organization known as California Reform Sex Offender Laws brought a lawsuit almost immediately after the law was passed. The right to travel freely is often discussed as a fundamental human right, so the concerns are not completely meritless. However, the goal of eliminating sex tourism is hard to argue with. To better understand the situation, let’s look at the original Megan’s Law, the International Megan’s Law, and the resolution of the lawsuit brought against the law.

The Original Megan’s Law

Megan’s Law is fairly well known, but for those unfamiliar it is the informal name for the laws creating the public registry of sex offenders. In the wake of the horrific rape and murder of a young girl named Megan Kanka, states across the nation created laws requiring registration after somebody is convicted. The laws vary a bit from state to state in terms of what information is publically available, what offenses require registration if convicted, requirements placed on registered offenders etc. Some common information that is publically available includes names, pictures, addresses, conviction/incarceration dates, and the type of crime they were convicted of.

The laws have occasionally faced challenges and criticism. These criticisms usually trend towards the laws either being overly restrictive or overbroad in who is required to register. For example, public urination is an offense that often requires registration. Another common criticism is that the laws tend to paint with broad strokes in terms of making little to moderate distinctions between types of offenses. Regardless of these criticisms, the laws have consistently been supported in the courts.

Potential Issues with The International Megan’s Law

The International Megan’s Law has a great deal more elements than the passport provisions discussed above. For example, in addition to the passport provisions, the law allows the U.S. to notify destination countries if an offender is travelling to their country. Stopping sex tourism is hard to argue with, especially when the provisions are exclusively targeted at sex offenders with crimes involving minors. However, this has certainly not stopped critics from commenting on the law. Surprisingly, not everything these critics say is necessarily completely off the mark.

As mentioned, the law was created to stymie sex tourism and child sex trafficking. When originally passed, representatives made it clear that no one law could totally stop these issues but argued that every step towards eliminating them was an important one. However, critics have pointed out that the issue targeted may have been more of a talking point than a realistic problem. In a five-year period, there were only three convictions for sexual offenses overseas out of the over 800,000 registered sex offenders in the U.S. today. What’s more, statistics do seem to show than the percentage of registered offenders who commit similar crimes again is very low–in the realm of 3%. The critics argue that the new passports are a sort of “Scarlett Letter” singling out registered offenders even more than before and that the law does not address a problem as widespread as Congress suggested or effectively deal with sex tourism. These criticisms led to the lawsuit discussed above from the California Reform Sex Offenders Laws.

The Arguments of the Lawsuit

The lawsuit primarily focused on how much the laws could limit travel and how potentially overbroad the provisions were–including those convicted of crimes such as sexting or public urination. The plaintiffs in the case included several people who specifically highlighted this potential over breadth and would need special passports–a man whose conviction had been expunged, a man sentenced to only probation and not required to register because his crime was particularly minor, and a man convicted 25 years ago. At least one of these three was required to routinely travel to China for work, so the passport requirement hit him particularly close to home. The lawsuit argued that the law was unconstitutional because it compelled speech in violation of the First Amendment, retroactively punishes people (generally a legal no-no), denied them equal protection of the law and denied them the right to legal process in defending their passports. The court in question did not buy any of these arguments and dismissed the case in September of 2016.

The judge ruled that the lawsuit, brought before passport provisions had taken effect, had no actual injury but only a speculative one–an actual injury is required for standing to challenge a law. However, the judge still took the time to rule that despite not having standing the case would have lost anyway. Government speech, such as the contents of a passport or driver’s license, is not protected by the First Amendment. Court’s have long held that registration of sex offenders–no matter how substantial or far reaching the impact on a registrant’s life–don’t implicate retroactive punishment issues as they are not punitive measures. The judge also ruled that the registrants already got their due process–when they were first convicted of the crime they had to register for. Finally, she ruled that there was no constitutionally protected class that was targeted by the law and that it only required a rational basis–the least rigorous constitutionality test–to be considered constitutional. The judge said that the International Megan’s Law met this test.

Law Potentially More Effective Than Anticipated

As of now, the International Megan’s Law and its passport provisions are constitutional. However, with the passport provisions taking effect there is an actual harm that may give a lawsuit standing to challenge the law and the district court ruling on the matter. But, it looks like the provisions are here to stay. What’s more, it looks like they are having an effect.

The author of the law has said Thailand has expressed gratitude for the passage of the International Megan’s Law. Apparently, over 160 convicted sex offenders have been caught trying to enter the country.  It is not clear whether these offenders were entering for the purposes of sex tourism, but Thailand has an unfortunate reputation as destination for this sort of activity. Ultimately, it’s hard to argue against any step designed to reduce such heinous behavior. It is certainly crucially important to protect the constitutional rights of all–including those who have been convicted of a crime. The arguments that the potential benefits of the law could be outweighed by the harm they do isn’t one to dismiss out of hand. However, for now the International Megan’s Law is a constitutional law protecting children across the world.

Standing or Kneeling, Your Rights When It Comes to Our National Anthem

It’s been over a year since Colin Kaepernick chose to take a knee during the national anthem in protest of the treatment of people of color in the U.S. At the time, the act was controversial. However, it led quite a few other professional athletes–and amateur athletes–to take up his cause and join him in kneeling. Even now, after the act has led to struggles in Kaepernick’s career–an odd sentence to write considering the criminal activities many other athlete’s careers have endured–there are an enormous number of athletes taking a knee in protest.

The act itself is something to be respected, protest is at the heart of U.S. values. However, it has faced an enormous amount of criticism as unpatriotic–in the media, online, and even from President Trump. The NFL has stated that they encourage, but do not require players to stand during the national anthem. But some associated with the NFL have come down hard on the protests. For instance, the coach of the Dallas Cowboys has said–after initially supporting the protesting players–that those who kneel during the national anthem will not play. This sort of response has led many to jump to the defense of these athletes on First Amendment grounds–arguing that the teams and NFL are trampling the athlete’s right to free speech and protest.

Unfortunately, while the cause and protest itself is important, this simply isn’t how the First Amendment works. To fully understand the rights involved in this situation, let’s look at how the First Amendment works, and the NFL rules on the topic.

national anthemThe First Amendment Generally Doesn’t Protect Against Private Action

First and foremost, we need to discuss a fundamental rule of how and when the First Amendment applies. The First Amendment protects your speech, religion, and right to association against the government and public agents of the government–not private parties. Thus, as we’ve discussed in the past, it is very rare that freedom of speech is an issue for an employer. You also have very close to no rights when it comes to what other people

Unless you work for the government, there are very few situations where your employer is limited in how they can curtail your speech. Where the politics behind a firing overlaps with a protected class such a race, national origin, religion, or-in many states-sexual orientation or gender identity it can give rise to separate legal issues. Similarly, allowing a workplace environment where a boss or even many employees constantly discuss issues such as banning access to specific ethnicities, races, or countries, that can easily create a hostile work environment or constitute harassment. Both can lead to legal action against an employer.

Finally, an employer cannot punish political stances in a way that limits an employee’s ability to discuss terms of employment or unionization. For example, if employees feel a politician’s stances might impact their wages then an employer would generally not be able to punish them for talking about it. Otherwise, your employer–and the NFL–are basically free to limit their employers or players however they like.

The NFL, if they wanted, could almost certainly force its players to stand for the national anthem as a condition of playing. So, could the organization behind every team in the NFL. If they were a government organization, this wouldn’t be the case. Not only can the government not limit speech, the Supreme Court has held–as far back as during World War II–that citizens can choose whether they want to salute the flag. To make a law to the contrary has been clearly held to be unconstitutional. There is no question that this sort of ruling would extend to standing or sitting during the anthem.

This has raised some concerns in the public with how Trump has responded to the protests. He has publicly and vociferously condemned the athletes taking a knee, suggesting that owners should fire them in tweets. Many have pointed to his position and said that these statements are coercing owners into acting and, based on Trump’s position, have said this violates the First Amendment. This is not the case.

Are Trump’s comments inappropriate? Absolutely. However, it is unlikely that they rise to the level of a First Amendment violation.  Unless Trump threatens actual action in his presidential capacity against the players, the NFL, or their employers, it is unlikely his action will reach the level of being unconstitutional.

There’s also been some misunderstanding from lawmakers on how the law works when it comes to the First Amendment and protests. For instance, Oklahoma Senator James Lankford has compared the protests to the firing of a coach for saying a prayer in the field. However, Senator Lankford’s comparison–referring to an assistant high school football coach fired for refusing to stop praying on the 50 yard line at every game–only serves to highlight the important distinction we discussed earlier. This coach worked for a public school–a government institution bound by First Amendment rules. This is exactly what the 9th Circuit said on the issue earlier this year. By acting as he did, the coach violated the Establishment Clause of the First Amendment by prioritizing one religion over another as a representative of the government.

The NFL is a private company employing players, this is the bottom line when it comes to player’s right to protest.  The NFL is not limited by the establishment clause and the limits on how it restricts the speech of what are essentially their employees are minimal. How the NFL will respond is essentially just governed by NFL rules, the same goes for each individual team. Each NFL player has a contract which governs their employment.

You can bet that, for the most part, these contracts include restrictions on speech, behavior, and more which–when violated–allow for their release. Some common terms include requirements that players maintain public respect for the game and ensure their personal conduct doesn’t adversely affect the team–very broad provisions. This means that how the protests are treated is, for better or worse, mostly up to the individual teams. Other than that, the only remaining issue in the NFL’s rules.

NFL Rules

There’s been a fair bit of misinformation on the internet about NFL rules on the topic of the national anthem. To clarify the issue once and for all, the NFL rules do include a policy regarding the national anthem. However, they do not require players to stand.

The entirety of the rules of the topic can be summarized as follows. The anthem is played at every game, all players need to be at the sideline and on the field during the anthem. After that, every else is a suggestion–this was recently confirmed by the NFL itself.

This means the NFL isn’t interested in coming down one way or another on the protests, the issue is firmly in the hands of the teams.

These Protests are Important

So legally, the players don’t have First Amendment protections against the NFL when it comes to their protests. Does this mean that should be the end of the conversation when it comes to protecting these protests? Of course not.

Free speech is a constitutional right, but it’s also a integral part of U.S. society as a concept. It is important that we voice our support of their message and protest. Private companies like the NFL aren’t required to comply to the rules of the First Amendment as private people and companies have their own rights to free speech. However, a right to free speech is not a right to freedom from consequences for your speech and choices regarding speech. If it is known that coming down on these protests will result in public condemnation, the teams will be hesitant to take action.

The teams are the ultimate arbiter of how these protests will be treated. However, these teams are ultimately accountable to their supporters as the lynchpin of their business–that means your support is crucial to helping the athletes who have chosen to use their fame to send an extremely important message to the world.

Failure to Pay Rent on Your Furniture Could Mean Jail Time

In Texas and Florida, you might go to jail for failing to pay for your furniture. Rental companies in the state had successfully lobbied for a little-known law that allows rental companies to press criminal charges up to felony theft for failure to pay for a rental property. A dispute over a $3000 bed set can turn into six months of jail time for the debtor. The Texas Tribune and NerdWallet found rent-to-own companies have pressed charges against thousands of customers in Texas and in other states.

Customers faced with these charges are allegedly that they were misled. Their understanding was that the rental agreements were installment payments to purchase the furniture. An agreement to pay $8,000 for a $5,000 piece of furniture, only to return the furniture to the company, is absurd. The companies claim they only want their property back under the terms of the lease.

rental companies21st Century Debtor Prisons?

One of the biggest concerns with public policies like these is whether the agreement is an adhesion contract. Adhesion contracts are standardized agreements that are on a “take it or leave it” basis. Adhesion contracts are often scrutinized because their standardized nature causes people to read them less carefully than other agreements. Rental contracts are often adhesion agreements when it comes to criminal charges. Nobody expects to get arrested because they signed an agreement to rent a chair.  If customers don’t read the agreement and fully understand what it is they are agreeing to, they may find themselves blindsided when the police show up.

The use of criminal charges to collect rental property is unnecessary because all states have civil procedures for debt collection. Civil laws provide a wide array of tools for creditors to get their money back. Lienswage garnishment, and civil suits are available to those who are owed money. Pressing criminal charges is a means of avoiding the usual due process of debt collection.

However, anyone who’s had to collect debt knows that it can be a long and expensive process. To obtain legal remedies like wage garnishment, the creditor must initiate a lawsuit and then convince a judge of one’s position. Calling the police would seem like a cheap and quick solution in comparison.

What is the Future of These Types of Contracts?

On one hand, it’s extreme and abusive to pursue criminal charges just because someone signed a piece of paper. On the other hand, the rental companies do have a right to recover their property and threats of criminal action are probably more effective than the use of liens. One possible solution would be to require rental companies to explicitly inform the customer that they may be subject to criminal charges in the event they fail to pay or return the rental property.

Customers would have notice that these clauses are in their contracts and could decide whether they wanted to do business with a company that would press criminal charges for missing a thousand dollars of property.  If rental companies are forced to disclose potential criminal liability in their agreements, it might increase competition between companies that use the police and those that do not. This would be a win for both customers and the free market.

Did Attorney General Jeff Sessions Lie to Congress?

With Special Counsel Robert Mueller’s first indictments, new questions have arisen regarding Attorney General Jeff Sessions’ testimony regarding Russia and the Trump campaign. During Sessions’ Judiciary Committee confirmation hearing on January 10, Senator Al Franken asked him what Sessions would do “if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign.”

Franken was referring to a news report alleging that Russia had compromising material on Trump and Trump surrogates were in contact with the Russian government. Sessions replied that he was “not aware of any of those activities” and said “I have been called a surrogate at a time or two in that campaign and I didn’t have—did not have communications with the Russians, and I’m unable to comment on it.” Sessions followed up in January 17 letter to Senator Patrick Leahy that he, Sessions, had not been “in contact with anyone connected to any part of the Russian government about the 2016 election.

SessionsWhat Made the Attorney General’s Office Change Their Mind?

After news about Papadopoulos’s guilty plea emerged, the Attorney General’s office changed it’s tune: “As far as Sessions seemed to be concerned, when he shut down this idea of Papadopoulos engaging with Russia, that was the end of it and he moved the meeting along to other issues.” Instead of being “unaware of any of those activities,” as Sessions had testified under oath in January, the Attorney General thought “It was a bad idea and the Senator didn’t want people to speak about it again.”

Even if we give Sessions the benefit of the doubt that he did everything to discourage meetings with the Kremlin, he should have made these revelations to Congress in January. Instead, Sessions waited until after news of Papadopoulos’s guilty plea to disclose what he has now apparently remembered. These revelations should have been made earlier, especially because Session’s supervisor has been screaming “FAKE NEWS!” whenever a journalist mentioned secret meetings between the Trump campaign and Russia.

What’s truly disturbing is that this is not a single incident. This administration has a history and pattern of making absurd claims which are either easily debunked or which are debunked by later evidence.

But Did He Do it Knowingly and Willfully?

Perjury is the intention act of knowingly or willfully making a false statement while under oath, either verbally or by writing. Statements which are merely false do not constitute perjury. The defendant must know that the statement was false, but made it anyway.

The issue is whether Sessions knew he was making false statement when he said he was “not aware of any activities” between the Trump campaign and Russia, when in fact he was at the meeting when Papadopoulos claimed he could set up connections between Russia and Trump himself. There are two questions that need to be answered before we can determine whether Sessions has committed perjury:

  1. Did Sessions believe Papadopoulos was speaking as a representative of the Kremlin?
  2. When Sessions said he was not “not aware of any activities,” did he know that “aware” also included “to discourage?”

If the answer to both questions is yes, then Sessions would be guilty of perjury. If Sessions believed that Papadopoulos represented Russia, then there was a connection between the Trump campaign and Russia right in front of him. If Sessions also knew that discouraging activity between the two was part of the question asked, then Sessions would have committed perjury. If the question had been “Did you encourage activities between the campaign and Russia,” Sessions would not have been stating a falsehood under oath. However, the question is merely about whether the meeting took place, not Session’s reaction to that meeting. If Sessions understood what the question was about, then he would have committed perjury.

Obviously, if Sessions lied under oath, he should at least meet the same punishment as President Clinton: disbarment, if not impeachment. Unlike the President though, Sessions would have to resign from his position anyway because the Attorney General must be an attorney.