The Supreme Court handed down an unusually messy order Friday night, in a case brought by a church claiming that it should be exempted from several rules California put in place to prevent the spread of Covid-19. The justices split four ways in the case, South Bay United Pentecostal Church v. Newsom, with members of the Court’s Republican majority divided into three different camps.
Interestingly, Justice Amy Coney Barrett wrote her first signed opinion since joining the Supreme Court, and her opinion takes a position that is slightly to the left of her most conservative colleagues. Though Barrett’s opinion is still quite conservative, it suggests that there may be some daylight between her views and those of her most reactionary colleagues.
Worshippers at South Bay United Pentecostal Church
The United States Supreme Court has enjoined California Governor Gavin Newsom's Executive Order barring indoor worship services, but has not blocked the 25% capacity limits. Remarkably the majority cites no record evidence of opinions by epidemiologists or infectious disease experts who differ with the judgment of those on whom the California Governor relies.
Justices Thomas, Alito, and Gorsuch would have gone further.
Justice Barrett, joined by Brett Kavanaugh, agreed tentatively with the ban on singing.
Justice Kagan, writing for herself and Justices Breyer and Sotomayor, dissented vigorously. Her opinion begins with a strong statement of deference to state authority, particularly when based on expert opinion:
Justices of this Court are not scientists. Nor do we know
much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a
raging pandemic. The Court orders California to weaken
its restrictions on public gatherings by making a special exception for worship services. The majority does so even
though the State’s policies treat worship just as favorably
as secular activities (including political assemblies) that,
according to medical evidence, pose the same risk of COVID
transmission. Under the Court’s injunction, the State must
instead treat worship services like secular activities that
pose a much lesser danger. That mandate defies our
caselaw, exceeds our judicial role, and risks worsening the
pandemic.
SOUTH BAY UNITED PENTECOSTAL CHURCH,
ET AL., v. GAVIN NEWSOM, GOVERNOR OF
CALIFORNIA, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[February 5, 2021]
The application for injunctive relief presented to JUSTICE
KAGAN and by her referred to the Court is granted in part.
Respondents are enjoined from enforcing the Blueprint’s
Tier 1 prohibition on indoor worship services against the
applicants pending disposition of the petition for a writ of
certiorari. The application is denied with respect to the percentage capacity limitations, and respondents are not enjoined from imposing a 25% capacity limitation on indoor
worship services in Tier 1. The application is denied with
respect to the prohibition on singing and chanting during
indoor services. This order is without prejudice to the applicants presenting new evidence to the District Court that
the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner. Should the petition for a writ of
certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is
granted, the order shall terminate upon the sending down
of the judgment of this Court.
JUSTICE THOMAS and JUSTICE GORSUCH would grant the
application in full.
JUSTICE ALITO would grant the application with respect
to all of the capacity restrictions on indoor worship services
and the prohibition against indoor singing and chanting, and would stay for 30 days an injunction against the percentage attendance caps and the prohibition against indoor
singing and chanting. JUSTICE ALITO would have the stay
lift in 30 days unless the State demonstrates clearly that
nothing short of those measures will reduce the community
spread of COVID–19 at indoor religious gatherings to the
same extent as do the restrictions the State enforces with
respect to other activities it classifies as essential.
CHIEF JUSTICE ROBERTS, concurring in the partial grant
of application for injunctive relief.
As I explained the last time the Court considered this
evolving case, federal courts owe significant deference to politically accountable officials with the “background, competence, and expertise to assess public health.” South Bay
United Pentecostal Church v. Newsom, 590 U. S. ___, ___
(2020) (opinion concurring in denial of application for injunctive relief ) (slip op., at 2). The State has concluded, for
example, that singing indoors poses a heightened risk of
transmitting COVID–19. I see no basis in this record for
overriding that aspect of the state public health framework.
At the same time, the State’s present determination—that
the maximum number of adherents who can safely worship
in the most cavernous cathedral is zero—appears to reflect
not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.
I adhere to the view that the “Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States.” Ibid. (internal
quotation marks and alteration omitted). But the Constitution also entrusts the protection of the people’s rights to
the Judiciary—not despite judges being shielded by life tenure, see post, at 6 (KAGAN, J., dissenting), but because they
are. Deference, though broad, has its limits.
With the inauguration of President Biden and Democrats holding a slim majority in Congress, policymakers are likely to consider whether and how to reverse various health policy regulations issued by the Trump Administration. As with other recent outgoing administrations,1 the pace of regulatory activity accelerated in the last several months, with the Trump Administration finalizing a number of new regulations in its last days. Rule-making by federal agencies is governed by the Administrative Procedure Act (APA),2 which generally requires a notice of proposed rule-making (NPRM) followed by a public comment period.3 The agency then responds to comments and issues a final rule, with a future effective date.4 An exception to this process is an interim final rule, which requires the agency to find “good cause” to adopt a rule that takes effect immediately, before notice and comment; the agency subsequently considers public comments and may make changes when finalizing the rule.5 Final regulations generally can be rescinded or altered only by issuing a new NPRM, in which the agency provides a reasonable justification for the policy change.6
Some additional processes, including the Congressional Review Act (CRA) and executive orders imposing a temporary moratorium on regulations in progress,7 may come into play when a new Congress and Presidential Administration take office, particularly when the outgoing Congress and/or Presidency was headed by the opposite political party. This brief explains options for rescinding or changing regulations at various stages8 and identifies some of the key candidates within health care that policymakers may be considering in the coming days, weeks, and months. Table 1 summarizes the processes available to change regulations, under either the CRA or administratively, from the perspective of a new presidential administration taking office.
Ofcom - the United Kingdom's regulator for broadcast, the postal service, broadband, telephone and other users of the airwaves - has revoked China Global TV's licence in the UK. China's global English language channel, CGTN is owned byCCTV [China Central Television] which, according to Ofcom, makes it a tool of the Chinese Communist Party, lacking editorial independence, and therefore ineligible for a broadcast licence.
This measure is likely to produce retaliation by China.
Having considered the available evidence, we have decided we are unable to grant the application to transfer the licence from SCML to CGTNC.
Correspondence from CGTN submitted during the course of our investigation makes clear that CGTNC is controlled by CCTV, which is also the sole shareholder of CGTNC.
Given CGTNC is controlled by CCTV – which, as part of the China Media Group, is controlled by the Chinese Communist Party and therefore disqualified from holding a broadcast licence under UK broadcasting laws – we consider that CGTNC would be disqualified from holding a licence.
What strikes me about the Republican argument that it's too late to impeach is this: the moment of maximum danger is the moment of transition. A lawless President or other impeachable officer is most likely to act as the moment of acquiescence in the loss approaches. The GOP majority's argument is that a successful effort to stop the coup d'etat deprives the Congress of the ability to bar the leaders of the failed coup from future office holding. As Justice Robert Jackson said in another context - the Constitution is not a suicide pact. - GWC
By Republicans’ logic, a president is free to commit insurrection so long as it’s at the end of his term.
By Bob Bauer
Mr. Bauer teaches constitutional law (the presidency) and political reform at New York University Law School. He served as White House counsel to President Barack Obama and was a senior adviser to the Biden campaign.
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to reunite children separated from their families at the United States-Mexico border, it is hereby ordered as follows: Section 1. Policy. It is the policy of my Administration to respect and value the integrity of families seeking to enter the United States. My Administration condemns the human tragedy that occurred when our immigration laws were used to intentionally separate children from their parents or legal guardians (families), including through the use of the Zero-Tolerance Policy. My Administration will protect family unity and ensure that children entering the United States are not separated from their families, except in the most extreme circumstances where a separation is clearly necessary for the safety and well-being of the child or is required by law. Sec. 2. Establishment. There is hereby established an Interagency Task Force on the Reunification of Families (Task Force). Sec. 3. Membership. (a) The Task Force shall include the following members or their designees: (i) the Secretary of Homeland Security, who shall serve as Chair; (ii) the Secretary of State, who shall serve as a Vice Chair; (iii) the Secretary of Health and Human Services, who shall serve as a Vice Chair; (iv) the Attorney General; (v) such other officers or employees of the Departments of State, Justice, Health and Human Services, and Homeland Security, as the head of each respective department may designate; and (vi) such other officers or employees of executive departments and agencies (agencies) as the Chair or Vice Chairs may invite to participate, with the concurrence of the head of the agency concerned. (b) The Chair shall convene and preside at meetings of the Task Force. The Chair, in consultation with the Vice Chairs, shall direct its work and, as appropriate, establish and direct subgroups of the Task Force. Sec. 4. Functions. The Task Force shall, consistent with applicable law, perform the following functions: (a) Identifying all children who were separated from their families at the United States-Mexico border between January 20, 2017, and January 20, 2021, in connection with the operation of the Zero-Tolerance Policy; (b) To the greatest extent possible, facilitating and enabling the reunification of each of the identified children with their families by: (i) providing recommendations to heads of agencies concerning the exercise of any agency authorities necessary to reunite the children with their families, including: (A) recommendations regarding the possible exercise of parole under section 212(d)(5)(A) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1182(d)(5)(A)), or the issuance of visas or other immigration benefits, as appropriate and consistent with applicable law; (B) recommendations regarding the provision of additional services and support to the children and their families, including trauma and mental health services; and (C) recommendations regarding reunification of any additional family members of the children who were separated, such as siblings, where there is a compelling humanitarian interest in doing so; (ii) providing recommendations to the President concerning the exercise of any Presidential authorities necessary to reunite the children with their families, as appropriate and consistent with applicable law; and (iii) for purposes of developing the recommendations described in this subsection, and in particular with respect to recommendations regarding the manner and location of reunification, consulting with the children, their families, representatives of the children and their families, and other stakeholders, and considering the families’ preferences and parental rights as well as the children’s well-being; and (c) Providing regular reports to the President...
"Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival...irrespective of such alien’s status, may apply for asylum"
"To establish that the applicant is a refugee…the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant."
Sec. 4. Restoring and Enhancing Asylum Processing at the Border. (a) Resuming the Safe and Orderly Processing of Asylum Claims at United States Land Borders. (i) The Secretary of Homeland Security and the Director of the Centers for Disease Control and Prevention (CDC), in coordination with the Secretary of State, shall promptly begin consultation and planning with international and non-governmental organizations to develop policies and procedures for the safe and orderly processing of asylum claims at United States land borders, consistent with public health and safety and capacity constraints. (ii) The Secretary of Homeland Security, in consultation with the Attorney General, the Secretary of Health and Human Services (HHS), and the Director of CDC, shall promptly begin taking steps to reinstate the safe and orderly reception and processing of arriving asylum seekers, consistent with public health and safety and capacity constraints. Additionally, in furtherance of this goal, as appropriate and consistent with applicable law: (A) The Secretary of HHS and the Director of CDC, in consultation with the Secretary of Homeland Security, shall promptly review and determine whether termination, rescission, or modification of the following actions is necessary and appropriate: “Order Suspending the Right To Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists,” 85 Fed. Reg. 65,806 (October 13, 2020); and “Control of Communicable Diseases; Foreign Quarantine: Suspension of the Right to Introduce and Prohibition of Introduction of Persons into United States from Designated Foreign Countries or Places for Public Health Purposes,” 85 Fed. Reg. 56,424 (September 11, 2020) (codified at 42 C.F.R. 71.40). (B) The Secretary of Homeland Security shall promptly review and determine whether to terminate or modify the program known as the Migrant Protection Protocols (MPP), including by considering whether to rescind the Memorandum of the Secretary of Homeland Security titled “Policy Guidance for Implementation of the Migrant Protection Protocols” (January 25, 2019), and any implementing guidance. In coordination with the Secretary of State, the Attorney General, and the Director of CDC, the Secretary of Homeland Security shall promptly consider a phased strategy for the safe and orderly entry into the United States, consistent with public health and safety and capacity constraints, of those individuals who have been subjected to MPP for further processing of their asylum claims. (C) The Attorney General and the Secretary of Homeland Security shall promptly review and determine whether to rescind the interim final rule titled “Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims,” 83 Fed. Reg. 55,934 (November 9, 2018), and the final rule titled “Asylum Eligibility and Procedural Modifications,” 85 Fed. Reg. 82,260 (December 17, 2020), as well as any agency memoranda or guidance that were issued in reliance on those rules. (D) The Attorney General and the Secretary of Homeland Security shall promptly review and determine whether to rescind the interim final rule titled “Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act,” 84 Fed. Reg. 63,994 (November 19, 2019), as well as any agency memoranda or guidance issued in reliance on that rule. In the interim, the Secretary of State shall promptly consider whether to notify the governments of the Northern Triangle that, as efforts to establish a cooperative, mutually respectful approach to managing migration across the region begin, the United States intends to suspend and terminate the following agreements: (1) “Agreement Between the Government of the United States of America and the Government of the Republic of Guatemala on Cooperation Regarding the Examination of Protection Claims,” 84 Fed. Reg. 64,095 (July 26, 2019). (2) “Agreement Between the Government of the United States of America and the Government of the Republic of El Salvador for Cooperation in the Examination of Protection Claims,” 85 Fed. Reg. 83,597 (September 20, 2019). (3) “Agreement Between the Government of the United States of America and the Government of the Republic of Honduras for Cooperation in the Examination of Protection Claims,” 85 Fed. Reg. 25,462 (September 25, 2019). (E) The Secretary of Homeland Security shall promptly cease implementing the “Prompt Asylum Case Review” program and the “Humanitarian Asylum Review Program” and consider rescinding any orders, rules, regulations, guidelines or policies implementing those programs. (F) The following Presidential documents are revoked: (1) Executive Order 13767 of January 25, 2017 (Border Security and Immigration Enforcement Improvements). (2) Proclamation 9880 of May 8, 2019 (Addressing Mass Migration Through the Southern Border of the United States). [entry of any alien into the United States across the international boundary between the United States and Mexico is hereby suspended and limited]
(5) Presidential Memorandum of April 4, 2018 (Securing the Southern Border of the United States). (G) The Secretary of State, the Attorney General, and the Secretary of Homeland Security shall promptly take steps to rescind any agency memoranda or guidance issued in reliance on or in furtherance of any directive revoked by section 4(a)(ii)(F) of this order. (b) Ensuring a Timely and Fair Expedited Removal Process. (i) The Secretary of Homeland Security, with support from the United States Digital Service within the Office of Management and Budget, shall promptly begin a review of procedures for individuals placed in expedited removal proceedings at the United States border. Within 120 days of the date of this order, the Secretary of Homeland Security shall submit a report to the President with the results of this review and recommendations for creating a more efficient and orderly process that facilitates timely adjudications and adherence to standards of fairness and due process. (ii) The Secretary of Homeland Security shall promptly review and consider whether to modify, revoke, or rescind the designation titled “Designating Aliens for Expedited Removal,” 84 Fed. Reg. 35,409 (July 23, 2019), regarding the geographic scope of expedited removal pursuant to INA section 235(b)(1), 8 U.S.C. 1225(b)(1), consistent with applicable law. The review shall consider our legal and humanitarian obligations, constitutional principles of due process and other applicable law, enforcement resources, the public interest, and any other factors consistent with this order that the Secretary deems appropriate. If the Secretary determines that modifying, revoking, or rescinding the designation is appropriate, the Secretary shall do so through publication in the Federal Register. (c) Asylum Eligibility. The Attorney General and the Secretary of Homeland Security shall: (i) within 180 days of the date of this order, conduct a comprehensive examination of current rules, regulations, precedential decisions, and internal guidelines governing the adjudication of asylum claims and determinations of refugee status to evaluate whether the United States provides protection for those fleeing domestic or gang violence in a manner consistent with international standards; and (ii) within 270 days of the date of this order, promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a “particular social group,” as that term is used in 8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
he second Catholic president of the United States is the first to hold office in the midst of an American intra-Church crisis. John Kennedy never had to deal with the kind of conflict currently roiling the USCCB or the opposition of so many bishops to the papacy. But Joe Biden takes office just as the situation inside the U.S. Catholic Church becomes reminiscent of the Americanist controversy of the late nineteenth century. What divided the bishops then were the warnings put forth by Leo XIII in Longinqua oceani (1895) and Testem benevolentiae (1899)—namely, admonitions against embracing the “American” models of religious liberty and separation of church and state. New York Archbishop John Corrigan sided with the pope, against St. Paul Archbishop John Ireland and his allies, whom Leo ultimately disavowed for their “Americanist” views. The split had long-term effects on the Church.
One of the things that divides the episcopate now is Biden himself. Many have criticized his Catholicism and are opposed to his presidency (just as they have criticized and opposed Pope Francis). But the critics also seem to fear the beginning of a social revolution—taking an apocalyptic view of the moment, seizing on issues of sexual morality and abortion in particular as an anchor of continuity with the past. What happened on January 20, the day of Biden’s inauguration, reveals the degree of ecclesial turmoil. A statement signed by USCCB President José Gomez, offering pro forma congratulations to and prayers for the new U.S. president and his administration, quickly pivoted to abortion, once more highlighting it as the “preeminent priority.” The statement, which struck quite a different tone from the congratulatory message with which the USCCB welcomed Donald Trump four years ago—and from Pope Francis’s note of congratulations to Biden—would have appeared before Biden’s swearing in had the Vatican not intervened and delayed it. (One can only assume that the leadership of the USCCB has a nostalgia for the Trump presidency that the Vatican and many U.S. Catholics don’t.) Gomez’s statement drew quick and unprecedented condemnation from some of the conference’s own members, most notably Chicago Cardinal Blase Cupich, who that afternoon tweeted: “Today, the U.S. Conference of Catholic Bishops issued an ill-considered statement on the day of President Biden’s inauguration.” He went on to criticize not only the content but also the process by which the statement had been crafted, reviewed, and released. Other bishops and cardinals, including Newark’s Joseph Tobin, were more discreetly critical.
No matter that the next day the USCCB issued formal statements praising Biden’s executive orders returning America to the Paris Agreement, reinstating DACA protections, and overturning Trump’s Muslim ban. The wrong note had already been struck, one far out of tune with the relief many people here and the world over, Catholic and non-Catholic, felt with the passing of the Trump presidency and its racism and political violence. San Diego Bishop Robert McElroy had days earlier condemned the January 6 assault against the Capitol as “the logical trajectory of the last four years of President Trump’s leadership of our country.” But the January 20 statement from the conference was one more indication that a number of U.S. bishops are indifferent to what happened in this country under Trump, and saw no reason not to support him a second time.
The conference is out of step not only with the new president, but also with many in the Catholic flock, as well as with the Vatican.
How many other bishops will follow Cupich’s lead? For now, it seems not many, at least in public. But no matter the allegedly “thundering consensus” within the USCCB, the conference as a whole is out of step not only with the new president, but also with many in the Catholic flock, as well as with the Vatican.
President Trump’s responsibility for the events of January 6 is unmistakable. After losing
the 2020 election, President Trump refused to accept the will of the American people. He spent
months asserting, without evidence, that he won in a “landslide” and that the election was “stolen.”
He amplified these lies at every turn, seeking to convince supporters that they were victims of a
massive electoral conspiracy that threatened the Nation’s continued existence. But every single
court to consider the President’s attacks on the outcome of the election rejected them. And state
and federal officials from both parties refused President Trump’s increasingly desperate demands
that they break the law to keep him in power.
With his options running out, President Trump
announced a “Save America Rally” on January 6. He promised it would be “wild.”
By the day of the rally, President Trump had spent months using his bully pulpit to insist
that the Joint Session of Congress was the final act of a vast plot to destroy America. As a result—
and as had been widely reported—the crowd was armed, angry, and dangerous. Before President
Trump took the stage, his lawyer called for “trial by combat.” His son warned Republican legislators
against finalizing the election results: “We’re coming for you.”
Finally, President Trump appeared
behind a podium bearing the presidential seal. Surveying the tense crowd before him, President
Trump whipped it into a frenzy, exhorting followers to “fight like hell [or] you’re not going to have a
country anymore.” Then he aimed them straight at the Capitol, declaring: “You’ll never take back
our country with weakness. You have to show strength, and you have to be strong.”
Incited by President Trump, his mob attacked the Capitol
Update: Today, February 2, 2021 Joe Biden issued a series of Executive Orders revoking key Trump administration anti-immigrant rules and orders hours after the Senate confirmed Alejandro Mayorkas as Secretary of the Department of Homeland Security, the Times reports.
Three of those orders have been posted on this blog today.
Much of modern federal law is the product of regulatory measures - Rules issued after Notice and comment under the Administrative Procedure Act, `emergency' orders, etc. But much of the meat is contained in guidances, directives, and other procedures. The Trump administration used those too and very effectively. The APA authorizes judicial review of federal agency regulations for arbitrariness and constitutionality and sufficiency of evidence. But the 870 Article III judges are a force of limited ability to manage the array of administrative measures taken in the past four years.
The writ possessed by federal Article III judges over agency action is quite broad under 5 U.S.C. 706. They are empowered to set aside regulations deemed "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right..." But they are limited by the doctrines of deference to agency expertise, and to the presumption that an executive agency charged with faithful enforcement of a law has reasonably understood that law and construed its ambiguities in good faith.
Finally there is the range of complexity and sheer volume of agency actions - ones undertaken in the past four years by an administration dedicated to reducing the compliance burdens placed on regulated industries. The Biden administration will find much of its restorative agenda has been aided by Harvard law students who have developed the Regulatory Rollback Tracker.
The Biden transition team after the election issued a comprehensive immigration plan. But as transition team member and Yale/Stanford professor described in an interview cited in The New Yorker, reversal will be a prodigious effort. Most press attention has gone to the most dramatic of the Trump administration efforts to stem the flow of immigration: asylum seekers trekking from Central America to the southern border, the Muslim-ban upheld by the Supreme Court after cosmetic changes to cleanse the taint of campaign rhetoric. Those efforts were accomplished by a variety of means: Notice and Comment rule-making, Presidential Proclamations accompanied by `emergency' Rules adopted without notice, hiring Immigration Judges But the devil is often far from the headlines.
For example, the American Bar Association Commission on Immigration has described the Immigration Courts as in an existential crisis. Production quotas and time-based deadlines undermine judicial independence, according to the ABA report prepared by Washington, D.C. based law firm Arnold and Porter. Other obstacles include the so-called Migrant Protection Protocols which the Department of Homeland Security asserts are designed to "end exploitation of our generous immigration laws". But immigrants advocates describe the program not as "faithful execution" of laws and treaties but rather as measures to deter and expel migrants to Mexico without granting the asylum interviews and hearings to which asylum law entitles anyone who crosses the border and states a plausible claim.
But such measures are only the tip of the iceberg of administrative measures by which the Trump administration cut even legal immigration in half, and virtually blocked immigration across the 2,000 mile southern border.
In 2017, Lucas Guttentag launched a project to track every Trump-era change to the immigration system.
One of the most fastidious chroniclers of this vast record is Lucas Guttentag, a law professor at Yale and Stanford. Guttentag is in his sixties, with plastic-framed glasses and the warmth of a genial high-school principal. In the eighties, he founded the A.C.L.U.’s Immigrants’ Rights Project, and later worked in Barack Obama’s Department of Homeland Security. When Trump came to power, Guttentag was alarmed not just by the pace of executive orders but also by the dozens of provisions tucked within them like “ticking time bombs,” as he put it. One created a special office to study the effects of crimes committed by “criminal aliens.” Another sought to expand the use of “expedited removal,” a tool for fast-tracking deportations.
Cartoon by Liana Finck
In the fall of 2017, Guttentag assembled a group of law students in a wood-panelled room at Yale. He proposed creating a communally sourced database of every change that Trump made to the immigration system. “So many things have happened in year one of Trump that are already receding from our memory, because we’re looking at the latest disaster,” he said. “If we don’t keep track, it will take a new Administration years just to unearth everything that’s happened.” They called it the Immigration Policy Tracking Project. Guttentag hoped that the database would prove useful to whoever succeeded Trump. “Going forward, we’re going to capture everything,” he told the team. “Someday we’ll need a road map for reversing all this damage.”
The students carved up immigration policy into what one of them, Rebecca Chan, described to me as “little fiefdoms”: humanitarian protections, labor laws, immigrant visas, citizenship. Then they performed a kind of public-policy forensics, searching for evidence of new policies in the Federal Register, legal blogs, government Web sites, Listservs for immigration attorneys, and nonprofit newsletters. When they found a change, they logged it in a private database, along with the text of the Obama-era policy that preceded it, and might otherwise be lost. They worked in relative secrecy: some students worried that their database would get hacked by white-supremacist trolls or be co-opted by Trump officials for bragging rights.
Many of the tweaks in the Tracker seem deceptively mundane. Last year, the Administration finalized a rule to nearly double the cost of the naturalization application, from six hundred and forty dollars to a thousand and thirty. (A federal judge in California blocked the rule’s implementation, much as dozens of other changes identified in the Tracker have been enjoined in court.) Guttentag told me, “Literally changing one single word on a form can make a lot of difference.” In January, 2020, the ombudsman for U.S. Citizenship and Immigration Services issued an alert that the agency had begun rejecting certain paperwork if the blank spaces weren’t filled out with the term “N/A,” for “non-applicable.” In December, U.S.C.I.S. redesigned the civics exam given to those applying for citizenship, doubling the number of questions, and giving some answers a conservative bent. The answer to the question “Who does a U.S. Senator represent?” used to be “All people of the state,” but now specifies “Citizens of their state.” All told, new administrative hurdles and other obstacles have cut the number of legal immigrants to the U.S. nearly in half.
***In politics, the status quo has uncanny power. In 2008, during Obama’s first Presidential campaign, he promised to close Guantánamo Bay. On the night that he won, detainees at Guantánamo chanted, “Obama! Obama! Obama!”; defense lawyers paraded before military prosecutors in a conga line, singing, “Hey hey hey, goodbye!” Obama issued an executive order on his third day in office, calling for Guantánamo’s closure within a year. But he was soon fighting with Congress, which passed legislation that made transferring detainees to the U.S. difficult, and engaging in tense negotiations with foreign countries about their willingness to accept prisoners. Toward the end of his second term, Obama was asked, by a seventh grader, if he had any regrets. “I would have closed Guantánamo on the first day,” he said. “The path of least resistance was just to leave it open.”
Today, Guttentag hopes that the minutiae won’t be forgotten. Later this month, he will make his Tracker public. He hopes that it will provide a useful model for reversing Trump-era policies in other sectors of the government as well. At Harvard Law School, a team has created a “Regulatory Rollback Tracker,” to log the ways in which Trump eroded environmental regulations. The Leadership Conference on Civil and Human Rights has inventoried dozens of assaults on civil rights. “To undo the damage, we’ll have to keep getting deeper and deeper into the weeds,” Guttentag told me. “That’s where so much of the change still needs to happen.”
Maria, in Miami, knows that her fate depends, in part, on how quickly Biden transforms asylum policy. Noemi Samuel Del Rosario, a lawyer at Americans for Immigrant Justice, which is working with the Door to fight Maria’s removal, told me that she hopes Biden will go further than ending the Migrant Protection Protocols; he also, she said, “needs to right the wrongs for families like Maria’s, who didn’t get a fair chance to present their cases in the way they should have in the first place.” Maria’s mother, Gabriela, is in hiding. Her sister, Paulina, is on the run in Honduras. “My wish is to eat around the same table as my family,” Maria told me. She still has the sketch of the pink hibiscus flower that she drew on the night that ice came for her at Abbott House. She kept her journal from the facility, too, in which she did an exercise envisaging her life ten years in the future. She imagined herself as a lawyer, in a pink suit, fighting for immigrant kids in court. “I’m proud of all that you’ve been able to achieve,” she wrote. “I see you as a woman warrior.” ♦
This story was produced in collaboration with the Global Migration Project, at Columbia University’s Graduate School of Journalism, with contributions from Adriana Carranca, Eileen Grench, and Isabela Dias.
