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CIVIL RIGHTS POLICIES, ANALYSIS, AND RESOURCES

The Civil Rights Domain tracks and reports on policies that deal with voter rights, police brutality, free speech, the right to privacy, and other human rights enshrined in our constitution. This domain tracks policies emanating from the White House, the Justice Department, Department of Homeland Security, the Department of Housing and Urban Development, and state legislatures. Our Principal Analyst is Rod Maggay who can be reached at rod@usresistnews.org.

The Danger of “Love It Or Leave It” Rhetoric From A Civil Rights Perspective

The Danger of “Love It Or Leave It” Rhetoric From A Civil Rights Perspective

Policy Summary
On July 14, 2019 President Donald J. Trump posted on his Twitter account tweets that were directed at four prominent Democratic Congresswomen of color. The women had been critical of United States policies under the Trump Administration. The President’s tweets stated they should “go back and…fix the totally broken and crime infested places from which they came.” His comments were condemned as racist from both sides of the aisle.

In August 2019, a Trump campaign petition about the Electoral College slammed “Coastal Elites and Liberal Donors” and referred to Rep. Ocasio – Cortez’s comments and stand against the Electoral College. The petition then ended with the phrase “This is our country, not theirs.”

The four Democratic congresswomen are Reps. Alexandra Ocasio – Cortez (D-NY), Ilhan Omar (D-MN), Ayanna Pressley (D-MA) and Rashida Tlaib (D-MI). All of the women with the exception of Rep. Omar are American citizens who were born in the United States. Rep. Omar was born in Somalia and emigrated from Somalia to the United States at the age of twelve and became a U.S. citizen at seventeen. LEARN MORE, LEARN MORE

Analysis
When President Trump posted the tweets that told four duly elected Congresswomen of the United States to go back to their countries it caused confusion, anger, charges of racism and debates about the nature of American citizenship and participation in the political process.

The confusion stems from the fact that three of the four women were born in the United States. How could three of these four women be “sent home” when they were born here in America? The women came from African – American, Palestinian and Puerto Rican families but were educated and spent their lives in the United States. The sadness of the President’s tweets show that he viewed the color and family ancestry of the women as a point to degrade them without regard to their backgrounds and contributions to America thus far. White persons with ancestry from Europe, such as Eastern Europe, are almost never singled out to return to their broken countries because of their ancestry or skin color, which demonstrates why President Trump’s comments were deemed racist.

The anger over the President’s tweets comes from the fact that the President has to resort to racist comments in order to deal with political opponents. President Trump’s racism is nothing new as evidenced by his comments about Charlottesville in 2017 but his comments here show that he has no problems resorting to racism when dealing with Members of Congress over simple policy differences. Not every politician is going to agree on every issue, like the Electoral College, but that is no reason to bring racist insults to the table to try and discredit and silence political opponents.

Finally, President Trump’s tweets shine a light on how these kinds of racist insults can affect the ideal of civil rights in America. There is no requirement that newly immigrated people’s vote or role in civil and political life is worth any less than any other person’s just because a person’s family may have been in America longer. There is also no requirement that a person of a white or European race has a greater say in civil life over other persons whose race may be from other places like Africa or Asia. That is why the phrase in the Trump campaign petition is so troubling. Rep. Ocasio – Cortez is neither a coastal elite (she was once a bartender) nor a liberal donor so the phrase may have been directed at her ancestry. Who is the petition referring to when it says “This is our country, not theirs[?]” What they are likely implying is that these women can have no say in the direction of the country. This is contrary to the civil rights ideal that everyone, regardless of how recent his or her families have arrived in America, has an equal say.

If America is to fulfill the goal of equality in American civil life, then the kind of posts telling other Americans to “love it or leave it” should be given no place in American political discourse. Those kinds of thinking and statements perpetuate the mentality that some votes and voices are not as equal as others. And it also implies that recent immigrants should not be viewed as equal with others yet and thus cannot fully participate on the same equal footing as other longer residing citizens just because their families have not been here as long as others. America is for all citizens, not just for a select few. LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by unsplash-logoClem Onojeghuo

President Trump Oversteps His Authority: He Cannot End Long – Standing Birthright Citizenship Rule With An Executive Order

President Trump Oversteps His Authority: He Cannot End Long – Standing Birthright Citizenship Rule With An Executive Order

Policy Summary
The Fourteenth Amendment to the United States Constitution states “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

In 1898, the United States Supreme Court decided the case United States v. Wong Kim Ark. In that case, Wong Kim Ark was a person of Chinese descent who had been born in San Francisco to Chinese immigrant parents. After traveling to China for a visit, Wong Kim Ark returned to San Francisco but was refused entry on the grounds that he did not have U.S. citizenship. Wong Kim Ark brought a case in federal district court that eventually was appealed to the U.S. Supreme Court. In a 6 – 2 decision that traced the history of the legal concept of “jus soli” (citizenship based on the place of birth) and set the legal precedent for persons born on U.S. soil the Court held that Wong Kim Ark did have United States citizenship because he was born on U.S. land despite his parents being foreign nationals. (There are exceptions to this rule that did not apply to this case.).

On August 21, 2019, President Donald Trump stated that he was going to end the rule that persons born on U.S. soil are given automatic United States citizenship. He stated that he was preparing to change the long – standing rule with an executive order. LEARN MORE, LEARN MORE

Analysis
President Donald Trump’s statement that he would overturn the well – settled legal rule that gives persons born anywhere on U.S. soil automatic American citizenship simply cannot be done because of the strength of the legal authorities supporting the rule and the political structure of the U.S. Government.

First, what the President is proposing would go up against some solid legal authorities. The text of the Fourteenth Amendment specifically states in no uncertain terms that “[a]ll persons born or naturalized in the United States…are citizens of the United States.” There is no ambiguity here about what these words mean. The President acknowledges this when he stated his intention to end the rule but the fact those words are included in the U.S. Constitution demonstrates that this is a rule meant to endure and withstand changing trends on immigration viewpoints in American politics. In addition to the language in the Constitution, there is also the Wong Kim Ark Supreme Court case that interpreted the Citizenship Clause in the Fourteenth Amendment. That case ruled definitively to uphold the principle that a person born on U.S. soil acquires American citizenship. The fact that this case has never been overruled after one hundred twenty years gives it significant weight as a case that is legally sound and rightfully decided.

Second, the President’s statement that he will overturn the rule with an executive order gets it wrong on what powers he can yield as President. The use of an executive order by the President is used to direct the activities of executive branch agencies and personnel. The executive order must also be consistent with and not contradict existing U.S. law passed by Congress or set forth by the Supreme Court. What President Trump is trying to do is unilaterally change well – settled American law without Congressional approval. And his proposed executive order directly contravenes a rule that the Supreme Court has already ruled on. The American system of “checks and balances” government was designed specifically to prevent one branch of government from taking actions that might be entrusted to another branch or do something beyond the limits of the executive branch of government as the President is suggesting he will do here. Based on this, the President simply cannot issue an executive order and change the birthright citizenship law on his own.

The President has made a suggestion that may have been an attempt to appeal to his political base but his proposal is simply too far – fetched and likely unlawful from a legal standpoint. LEARN MORE, LEARN MORE

Engagement Resources

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by unsplash-logoTaylor Wilcox

Did FBI Director Wray Mislead Congress During Senate Committee Testimony About Domestic Terror Groups

Did FBI Director Wray Mislead Congress During Senate Committee Testimony About Domestic Terror Groups

Policy Summary
On July 23, 2019, Director of the Federal Bureau of Investigation (FBI) Christopher Wray offered testimony to the U.S. Senate Judiciary Committee stating that the FBI had abandoned use of the “black identity extremism” label and was instead using an overarching umbrella label called “racially motivated violent extremism.” This label was to include all domestic terrorism groups without distinguishing any group by race.

On August 8, 2019, investigative reporter Ken Klippenstein of the The Young Turks website revealed leaked documents that showed that the FBI did not abandon the “black identity extremism” label. The leaked FBI documents were “counterterrorism strategy guides” for the Fiscal Years (FY) 2018 – 2020 and showed that even though the new “racially motivated extremism” and “racially motivated violent extremism” labels were used, the FBI continued to define these terms in the same way that they had previously defined “black identity extremism.” LEARN MORE 

Analysis
The leak of the counterterrorism strategy guides and revelation by investigative reporter Ken Klippenstein not only discredits Director Wray’s Senate committee testimony in July 2019 but also is disturbing in what it reveals in terms of domestic terrorism priorities for the Bureau.

First, Director Wray’s statement that the FBI had abandoned the term “black identity extremism” label in favor of an umbrella term that included all forms of racially motivated extremist groups ignores the fact that the Bureau continued to use the definition of “black identity extremism” it had previously developed. Even though the new label mentions “white supremacy extremism” as being included, the new label is still defined using the “black identity extremism” label. This implies that black identity extremism is more of a threat than any other category such as white supremacist groups. In fact, the documents categorized black identity extremism as a “priority” threat while white supremacist groups were only a “medium” threat. This indicates that the Trump Administration places a higher priority on criminalizing Black dissent over confronting white supremacist groups.

Secondly, the threat guidance guide for 2020 expanded on the continued use of the so-called discarded black identity extremism label by referring to “violent black extremist attacks.” But nowhere in the document did it list a specific instance of a violent black extremist attack. Instead the guide listed attacks that had been perpetrated by white supremacists – the Pittsburgh synagogue attack, the attack in New Zealand and the San Diego synagogue attack. This indicates that President Trump’s FBI is trying to tie black protest movements to horrific white supremacist attacks even though the threat guide put out by the FBI could list no incident of a violent black extremist attack.

Finally, the documents mention a mysterious project called IRON FIST. Many details of this program have not been revealed yet but the leaked documents indicate that they are an FBI program designed to spy, investigate and infiltrate black activist groups through the use of undercover agents. This is disturbing news because it does not distinguish between legitimate black activist behavior and violent incidents and seems to simply group all black activist behavior as wrong. The IRON FIST program also does not indicate if and how the program will comply with protected civil rights and liberties. This is a real concern as the documents also reveal that black activist groups are considered a higher threat priority than white supremacist groups and even the foreign group Al-Qaeda.

The testimony by FBI Director Wray in July should have helped clarify the issues surrounding the priorities the Bureau would tackle in the future regarding domestic terror groups but these leaked FBI documents show that the Bureau is confused about its priorities. It is also disturbing because it illustrates how the Trump Administration is trying to suppress legitimate black activist behavior when statistics and recent incidents indicate that the more serious threat is from white supremacist groups. This is a terrible position for President Trump and the FBI to take and is clearly misguided on the real domestic terror threat that threatens America today. LEARN MORE, LEARN MORE

Engagement Resources:

 

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by Lianhao Qu

Competing House Resolutions Shine Light On Right To Boycott Under First Amendment

Competing House Resolutions Shine Light On Right To Boycott Under First Amendment

Policy Summary
On March 21, 2019 H.Res. 246 was introduced in the U.S. House of Representatives by Rep. Brad Schneider (IL-D) titled “Opposing Efforts to Delegitimize the State of Israel and the Global Boycott, Divestment and Sanctions Movement Targeting Israel.” On July 23, 2019 the resolution passed in the House by a 398 – 17 vote. Prior to the passage of that resolution Rep. Ilhan Omar (MN-D) introduced H.Res. 496 on July 16, 2019 titled “Affirming That All Americans Have The Right To Participate In Boycotts In Pursuit of Civil and Human Rights At Home And Abroad, As Protected By The First Amendment to the Constitution.” This resolution has not been voted on as of yet but has been assigned to the House Committee on the Judiciary which has jurisdiction over constitutional issues. LEARN MORE, LEARN MORE

Analysis
One of the key issues in the debate on the conflict in the Middle East appears set to play out in the halls of the U.S. Congress. The two resolutions introduced in the House of Representatives since March have re-ignited a discussion as to the role of protest groups and the U.S. Constitution’s First Amendment’s protection of free speech and the right to engage in boycotts. The Boycott, Divestment and Sanctions (BDS) Movement is a global movement working to end international support for Israel’s oppression of Palestinians and pressure Israel to comply with international law. H.Res. 246 and Israel clearly oppose the BDS movement because of how it may affect the State of Israel economically and diplomatically.

Rep. Omar’s H.Res. 496 is in opposition to H.Res. 246 but takes a different approach than what one might expect her to take. While Rep. Omar’s position supporting the Palestinian people is well known her resolution is framed as a Freedom of Speech issue. It never mentions Israel or BDS by name but instead focuses on how prior boycotts were significant moments in American history – the U.S. boycotting the 1980 Summer Olympics in Moscow, the 1980’s boycott of South African goods because of apartheid policies there as well as a number of Supreme Court cases from the Vietnam War era and the Civil Rights Movement that affirmed the right to boycott.

Between the two resolutions, it appears that Rep. Schneider’s H.Res. 246 is not aimed at protecting the free speech right of Americans but is an attempt to try and stifle discussion and dissent on the conflict in the Middle East in favor of the State of Israel. A resolution like that could have the effect of “chilling” speech on the issue if people become fearful of taking a position that the government clearly does not favor. Rep. Rashida Tlaib (MI-D), a noted Palestinian supporter, said, “Dissent is how we nurture democracy” and stood in opposition to H.Res. 246. Rep. Omar could have introduced a resolution stating her opposition to Israel but she made a key choice in deciding to frame the discussion as a free speech issue to be decided by each person as they see fit. The key point here between the two resolutions is to not to try and manipulate the American people into taking the political position that the U.S. Government prefers as Rep. Schneider’s resolution could do. The point is to instead use the protection of free speech to give Americans space and freedom to pursue and advocate for issues important to them even if they are unpopular to others, which is what Rep. Omar’s resolution does. As the Supreme Court in NAACP v. Claiborne Hardware said when it affirmed the right of people to engage in boycott activity on unpopular issues, “[B]oycotts and related activities to bring about political, social and economic change are political speech” and occupy “the highest rung of the hierarchy of First Amendment values” and are protected by the First Amendment. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Disuse of “Black Identity Extremism” Category Creates New Problem For The FBI

Disuse of “Black Identity Extremism” Category Creates New Problem For The FBI

Policy Summary
On July 23, 2019, Federal Bureau of Investigation (FBI) Director Christopher Wray testified before the U.S. Senate Judiciary Committee that the Bureau had reorganized its categories that it had used to describe and monitor violent extremism groups in the United States. Previously, the FBI had eleven different domestic terrorism categories which included “white supremacists” as a separate category. In 2017, it was revealed that the U.S. Government had a “black identity extremism” category which proved highly controversial. During his testimony, Director Wray stated that the bureau has now abandoned the category “black identity extremism” and is now using the overarching “racially motivated violent extremism” to track all domestic terrorism groups without differentiating any group by race. LEARN MORE 

Analysis
The “black identity extremism” label became a highly controversial point of contention because of the possibility that the category was going to be used to suppress black protest groups in the wake of President Donald Trump’s racist statements, especially after the 2017 incident in Charlottesville, Virginia. Other civil rights leaders and a handful of Democratic senators pushed back on the “black identity extremism” label and called it an attempt to fabricate a false equivalency with rising white supremacy actions. They also called it an attempt to discredit legitimate black activist groups that were pursuing lawful actions against police violence and other black – centered issues. The worry was that any group that was legitimately advocating for an issue connected with the black community could easily be categorized as extremist. This could then lead to increased surveillance and harassment from law enforcement authorities against the groups. Kristen Clarke, president and executive director of the National Lawyers Committee for Civil Rights Under Law, called the “black identity extremism” category nothing more than a distraction from the real and rising threat of white supremacy groups. Those hate groups have even openly embraced President Trump.

The simple solution would have been to eliminate the “black identity extremism” category, which Representative Ayanna Pressley (IL-D) called absurd as used by the FBI. However, Director Wray’s comments to the Senate Judiciary Committee exposed a new problem when all of these categories are lumped together under one umbrella term. If the FBI no longer uses its old classification system (it had used as many as eleven before) to distinguish between white supremacist, anti – Semitic and other hate groups then the new “racially motivated violent extremism” category can still be used to label any race based advocacy group as a hate group. A legitimate black, Asian or Latino advocacy group can easily be grouped under this label. All it would take is one minor scuffle at a protest or a rogue member committing a violent act without the group’s knowledge and that would be enough for someone to call for the black or Latino group to be labeled and categorized as an extremist group. The Asian American Legal Defense and Education Fund (AALDEF) or Mexican American Legal Defense and Education Fund (MALDEF) would be susceptible to being classified under this category, as would many other groups doing legitimate advocacy work.

Additionally, the umbrella category could even be used to hide how the federal government is allocating its resources to fight these groups as there would no longer be any transparency as to how much money goes to fighting white supremacy or other groups, as is pointed out in this online petition. With President Trump and his administration constantly being accused of racist statements, it becomes more important to know if enough resources are being directed to fight white supremacist groups or if the resources are being directed away to other less pressing and less threatening groups. This new single category can help hide the true facts and numbers. While Mr. Wray’s comments to the Senate Committee have helped to expose the lie of the “black identity extremism” category it tried to implement, the single umbrella “racially motivated violent extremism” category seems just as flawed and might be no better in the long run. LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Federal Court of Appeals Rules President Trump Cannot Block Critics on His Twitter Account

Federal Court of Appeals Rules President Trump Cannot Block Critics on His Twitter Account

Policy Summary
In 2018 Judge Naomi Reice Buchwald of the Federal District Court for the Southern District of New York ruled that President Donald J. Trump and other White House officials had violated the First Amendment by blocking a number of Twitter users from the President’s Twitter account. President Trump and other White House officials had been sued by a number of Twitter users who had been blocked and the Knight First Amendment Institute at Columbia University. The President appealed that ruling to the Federal Circuit Court of Appeals for the Second Circuit. A three-judge panel heard the appeal and subsequently issued a unanimous opinion that affirmed Judge Buchwald’s opinion in the lower court. Immediately after the ruling was handed down, a separate lawsuit was filed against Representative Alexandria Ocasio Cortez (NY-D) as she had blocked some users from her Twitter account. That lawsuit is still pending. LEARN MORE

Analysis
While the opinion issued by the federal appeals court is certainly a setback for President Trump it is clearly a win for the Constitution’s First Amendment protection of free speech on social media and will likely offer legal guidance on how politicians are to treat speech on their own social media accounts.

At the federal district court level Judge Buchwald ruled that President Trump’s use of his Twitter account was an account used by a state actor, was a public forum and that the actions to block critics from his Twitter feed amounted to viewpoint discrimination. What this means is that the courts found significant acts taken by the President was not a means of communication taken by a private person in a private place which, astonishingly, is what lawyers for the President tried to argue. Most of the American public knew that Donald Trump was using his Twitter account for more than just private use. He had often used the social media platform to announce new policies and to question the acts of some members of his Cabinet. And it was most certainly a public forum because, as the court said, this “instrumentality of communication” was opened “for indiscriminate use by the general public.” It was not meant for only a select number of users but for all citizens to engage and interact with the President and other users who gather on his Twitter feed. As such, it was deemed a public forum and was thus required to follow the long established public forum free speech rules which include prohibitions on viewpoint discrimination.

And here is where the President ran into trouble. By blocking users who were critical of his policies, the President denied users who were critical of him a chance to engage with people who supported him. While the President was not obligated to listen to his critics he crossed the line when he decided, based on the views certain users expressed, which user would be permitted to interact and engage with others. This was clearly discrimination based on what a user thought, expressed and said and was a clear violation of the First Amendment’s free speech public forum rules. This opinion is significant because it finally states for certain that politicians – at any level and of any political party – can no longer simply ban online speech because they disagree with the message of the speech.

The opinion wrapped up by unanimously upholding all of the rulings made at the federal district court level and ended by stating, “[I]f the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.” There could have been no better response to a President who has grappled with how to handle his critics and others opposed to his presidency. LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by unsplash-logoSara Kurfeß

Georgetown Law School Discovers FBI and ICE Use State DMV Databases With No Restrictions To Scan ID Photos For Investigations

Georgetown Law School Discovers FBI and ICE Use State DMV Databases With No Restrictions To Scan ID Photos For Investigations

Policy Summary
On July 9, 2019 the Washington Post reported that Georgetown University Law’s Center on Privacy and Technology had obtained public records that revealed that the Federal Bureau of Investigation (FBI) and Immigration and Customs Enforcement (ICE) had worked with state officials and state agencies to search through DMV database photos of residents with face recognition technology. The efforts were done in connection with criminal investigations. However, residents with photos on file with the DMV in their state were not informed that the FBI and ICE were scanning thousands of photos with the new technology. The searches requested by federal government agencies and performed by state officials did not distinguish between those residents who had committed a crime and those who had not. The searches were performed to hopefully find a photo match against any photo contained in the state DMV photo database. The FBI had been conducting these kinds of searches with state agencies since at least 2011. LEARN MORE

Analysis
The report of the records obtained by the Center on Privacy and Technology at the Georgetown University Law School has caused a firestorm on Capitol Hill and in statehouses around the nation. Lawmakers from both sides of the aisle have come forward to condemn the activities and to call for rules and guidelines that would apply to future activities of this kind. While no substantive bill or rule proposal has been put forth yet the House of Representatives Homeland Security Committee has scheduled a meeting with Customs and Border Protection (CBP), the Transportation Security Administration (TSA) and the Secret Service to discuss possible guidelines.

The reason this issue has angered so many is, as Senator Patrick J. Leahy (VT-D) said, “[G]etting a driver’s license do[es] not consent to surveillance.” Federal investigators had been granted access to databases in twenty-one states and the District of Columbia. The relative ease with which outside federal agencies were permitted to scour through a database was troubling because the searches were not restricted to only those residents who had a criminal record. Representative Zoe Lofgren (CA-D) pointed out that this was an unwarranted intrusion of privacy rights and that it was done secretly and without any authorization of law. Nor was there any notice sent to citizens that this could occur or that there was any way to challenge and stop this practice, say in a court of law.

What is worrisome is that there are safeguards out there to prevent abuse or to limit how the information can be disseminated but law enforcement authorities are simply ignoring it right now. Washington State said that they only permit facial recognition searches with a court order or subpoena. This can be key because a judge can greatly limit what can be searched instead of allowing for a “fishing expedition” style search where investigators are allowed access to look for anything and everything that comes to mind. Another limitation would be to restrict searches to already convicted offenders instead of everyone in the DMV database. And, finally another limitation would be to have searches used only for the initial purpose of a search – for example, if an initial facial recognition search in a database was used for a burglary, that information cannot be used for an unconnected incident like an immigration or work – related investigation.

There are a number of issues that need to be debated and potential options thoroughly researched before this practice of federal agencies rummaging through DMV databases can continue. The letter sent by Jeramie D. Scott, Senior Counsel at the Electronic Privacy Information Center (EPIC), eloquently demonstrates the reasons to temporarily ban the use of the software and also shows the widespread support from so many other groups that also want transparency, oversight and accountability on this dangerous new technology. LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by Thomas Millot

President Trump Abandons Battle To Add Citizenship Question To U.S. 2020 National Census

President Trump Abandons Battle To Add Citizenship Question To U.S. 2020 National Census

Policy Summary
In March 2018 Secretary of Commerce Wilbur Ross announced in an internal memorandum that he intended to reinstate a citizenship question on the upcoming 2020 national census. A national census questionnaire had not asked the citizenship status question since 1950. After Secretary Ross announced his intention numerous lawsuits were filed throughout the country to block the question from appearing on the upcoming questionnaire. Two separate lawsuits were filed in federal district courts in the State of New York to block the question that were later consolidated into a single case. The federal district court later requested additional materials because they thought the initial evidence incomplete. Additional materials were submitted and at the bench trial the federal district court ruled the Secretary’s action to reinstate the citizenship question arbitrary and capricious, based on a pretextual rationale and in violation of the Census Act. The case was appealed to the Court of Appeals for the Second Circuit but the case was eventually appealed directly to the U.S. Supreme Court before the Court of Appeals could hear the case. The Supreme Court accepted the case because of the deadline of June 2019 to begin printing and mailing questionnaires for the 2020 census.

On June 27, 2019 the Supreme Court handed down a decision that effectively banned the citizenship question for the 2020 census but ended up remanding the case back to the lower court which left open the door for the citizenship inquiry to be added on a census questionnaire in the future. However, President Trump has made it clear that he still wants to try to add the question even though the census questionnaire has begun to be printed. The week after the Supreme Court decision, President Trump floated several ideas to try and add the citizenship question in a rushed manner. However, On July 11, 2019 President Trump announced that he would pursue other options to gather citizenship status information from persons residing in the United States instead of trying to gather that information from a question on the 2020 national census questionnaire. LEARN MORE, LEARN MORE

Analysis
After the U.S. Supreme Court issued its decision blocking the citizenship question from being added to the 2020 census questionnaire the issue was thought to be over. However, President Trump wanted to continue the fight for the question. Due to the timeline of having to print the questionnaire for 327 million people, President Trump’s decision to try and continue the fight was sure to cause complications – due to the speed of the U.S. court system (there are still numerous cases in the states challenging President Trump’s attempt to add the question with the two of the most notable in Maryland and New York), the desire to try to reach every citizen/household before the end of 2020 and the possibility of having a uniform census questionnaire.

The question became so important to the President that he even tried to float some skeptical ideas that were likely to be declared unconstitutional. President Trump’s first proposal after being thwarted by the Supreme Court decision was to try to delay the 2020 census. However, the U.S. Constitution requires that a census be taken every ten years in order to allocate U.S. Representatives to each state according to the population of each state. By trying to delay the decennial census for a minor question, President Trump would have explicitly violated the U.S. Constitution and thrown the U.S. Government into a chaotic state.

President Trump’s other proposal was to try to add the citizenship question by executive order. This would also have been a violation of the U.S. Constitution since the same Article 1, § 2 requires the census to occur “in such Manner as they shall by Law direct.” What this means is that Congress decides the laws that dictate how the census should be carried out while the President directs the activities to implement the laws. By threatening to use an executive order that had not been approved by Congress in a statute would have been a violation of the separation of powers principle. The kind of act that President Trump threatened to do would have been another way for him to try and get his way by going around the powers of Congress, which is without a doubt prohibited by the U.S. Constitution.

With President Trump’s announcement on July 11th the issue of foregoing adding the citizenship question on the national census and the constitutional complexities that that would have entailed now appears to have been put to rest. But things with President Trump are never so simple. While the 2020 census can now proceed, President Trump’s directive to gather citizenship info through other means and Attorney General William Barr’s curious statement that future congressional apportionment only applies to citizens have no doubt set the stage for a number of new battles to be fought over the significance and future role of illegal immigrants and illegal aliens in American society. LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by Arnaud Jaegers

Florida Enacts “Poll Tax” Fifty – Five Years After Being Outlawed By U.S. Constitution; State Action

Florida Enacts “Poll Tax” Fifty – Five Years After Being Outlawed By U.S. Constitution; State Action

Policy Summary
The Twenty – Fourth Amendment to the U.S. Constitution states “The right of citizens of the United States to vote in any primary or other election…shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”

In 2018, the State of Florida placed the Voting Rights Restoration for Felons Initiative on the November 2018 ballot. That initiative, popularly known as Florida Amendment 4, was a proposal to amend the Florida Constitution that sought to restore voting rights to Florida citizens who had lost their voting rights after they had been convicted of a felony. Under the Florida Constitution a Florida resident who had lost his or her right to vote because of a felony conviction continued to be banned from voting even after the completion of their sentence and other requirements such as parole and probation. Florida voters overwhelmingly approved Florida Amendment 4 with 64% approving out of nearly eight million votes cast. An initial estimate predicts that 1.4 million Floridians convicted of a felony will have their voting rights restored. (Those convicted of murder or sexual assaults are excluded from having their voting rights restored under the initiative).

However, Florida Republican legislators and Republican Governor Ron De Santis, who had been opposed to the ballot initiative from the beginning, introduced Senate Bill 7066 in the state legislature that would add additional requirements to Amendment 4. Before having their voting rights restored, felons would be additionally required to pay all overdue and pending court costs, fines and fees before being permitted to register to vote in Florida. The bill passed the Florida state legislature and Gov. De Santis signed SB 7066 into law on June 28, 2019. After signing the bill, numerous non – profit groups filed suit to challenge the additional requirements. LEARN MORE

Analysis
The events undertaken by Republican politicians in Florida are astonishing in their disregard for the U.S. Constitution and the majority of Florida voters who made their will known in the November 2018 election.

As discussed above, the Twenty – Fourth Amendment to the U.S. Constitution explicitly states that a state may not deny a citizen the right to vote for failure to pay any poll tax or other tax. The prohibition is clear and yet Republicans in Florida went ahead with the new bill anyways. The text of the new law signed by the Governor might use words like court costs, fines or fees but there is no mistake that the law is conditioning the right to vote on whether a person first pays money up front before being allowed to register. No fine – tuning of words or a classification of fees can ever change how this transaction would eventually play out if implemented – that someone in this country would first have to give money before exercising their right to vote. That scenario is simply a violation of one of the Amendments to the U.S. Constitution.

In addition to the constitutional questions, the bill just passed by Republicans is in direct contravention to what a majority of voters in Florida wanted. Residents of Florida were well aware of what the consequences would be if the Voting Rights Restoration for Felons Initiative was approved – that former felons would have their voting rights restored. Florida residents approved it anyways and did so in an overwhelming fashion. So why did Gov. De Santis and other Republican legislators wait until after the results of the election to add additional restrictions? Why didn’t they push for these restrictions to be added to the text of the initiative in order to have the residents of Florida have their say on them in the 2018 election? Maybe they were hoping that the initiative they had been opposed to from the beginning would not pass but that did not turn out to be the case. So now, instead of respecting the will of the voters, Gov. De Santis and other Republican politicians have decided to unilaterally impose additional restrictions that are more to their liking, albeit unconstitutional on its face and in opposition to the results of an election. These moves undertaken by the Republican leadership in Florida hint back to tactics often used by whites against African – American voters from the days of Jim Crow and speak to the levels of voter suppression that still occurs across the country in a very divisive and hostile partisan America. It is a modern day version of a poll tax and should be stricken from the books at the first opportunity. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by David Masemore

U.S. Supreme Court Issues Decision Blocking “Citizenship Question” From Being Added To Next Census

U.S. Supreme Court Issues Decision Blocking “Citizenship Question” From Being Added To Next Census

Policy Summary
In March 2018, shortly after he was appointed Secretary of Commerce for the Department of Commerce, Wilbur Ross announced in an internal memorandum that he intended to reinstate a question on the upcoming 2020 national census regarding the citizenship status of each member residing in a household. A national census questionnaire had not asked the citizenship status question since 1950. The proposal was highly controversial and numerous lawsuits were filed throughout the country to block the question from appearing on the upcoming questionnaire. Two separate lawsuits were filed in federal district courts in the State of New York to block the question and later consolidated into a single case. The federal district court later requested additional materials because they deemed the information at hand was incomplete. After additional materials were submitted and a bench trial the federal district court ruled the Secretary’s action to reinstate the citizenship question arbitrary and capricious, based on a pretextual rationale and violated the Census Act. The case was appealed to the Court of Appeals for the Second Circuit but the case was eventually appealed directly to the U.S. Supreme Court before the Court of Appeals could hear the case. The Supreme Court accepted the case because of the looming deadline of June 2019 to begin printing and distributing questionnaires for the 2020 census.

On June 27, 2019 the Supreme Court handed down a decision which effectively banned the citizenship question for the 2020 census but remanded the case back to the lower court which leaves open the door for the citizenship inquiry to be added on a census questionnaire in the future. LEARN MORE

Analysis
The Supreme Court case Department of Commerce v. New York is a win for supporters of those who fought to keep a citizenship status question off the 2020 decennial census but the opinion only applies to the 2020 census. Because of the reasons laid out in the ruling, it is completely conceivable that a citizenship question could appear on the 2030 and 2040 censuses and beyond. Only the timing of the decision and the irrational approach undertaken by the Secretary worked to keep the citizenship question off the 2020 census.

In the majority opinion written by the Chief Justice, he writes that Secretary Ross’s decision to look into reinstating the citizenship question was not supported by the evidence in the record of “why” the Secretary wanted to do this. The rationale the Secretary gave appeared to be a “mismatch” with his eventual decision and appeared to be more of a “distraction” from other political reasons behind his rationale. The sole reason finally given by the Secretary was for better enforcement of the Voting Rights Act (VRA) but there were no indications he considered the VRA when he initially announced the proposal. Also, his interactions with other government agencies to gather citizenship data focused on other issues and made no mention of voting rights. Based on case law interpreting the Administrative Procedure Act (APA), agency decisions must “articulate a satisfactory explanation” which must also “include a rational connection between the facts found and the choices made.” Decisions must also be “within the bounds of reasoned decision-making.” What the Secretary gave for trying to add the citizenship question did not satisfy these standards because the evidence before him and the statements he made did not support his eventual course of action. Instead, in the words of the Chief Justice, his reasoning appeared contrived.

But even if this decision does not allow the question to be added for the 2020 census, the rest of the opinion makes clear that if a future Secretary or the Department of Commerce is able to marshal supporting evidence in favor of adding a citizenship question and can articulate it in a reasoned and logical way that there might not be anything to stop the question from being eventually added. The opinion notes that a citizenship question has not been on the census since 1950 but that it had been a regular feature of census questionnaires throughout the nineteenth century. It is very conceivable that supporters of the citizenship question for the 2030 census could well undertake a more organized approach with this court opinion as a guideline as to what to do and what not to do. The citizenship question has been struck from the 2020 questionnaire but this opinion only sets the stage for a possible and very likely addition of the citizenship question for the 2030 census and others to come in the coming decades. LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by unsplash-logoClaire Anderson

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