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Refugees Welcome?

By Sarah Song*

On Monday the U.S. Supreme Court allowed some of President Trump’s travel ban to stand, which he quickly hailed as a “clear victory.” Challengers of the ban have been equally quick to emphasize that the court’s opinion actually protects many people seeking to enter the U.S. including those who have families, offers of employment, or invitations from universities—those with “a bona fide relationship with a person or entity” in the U.S.[1] In drawing this line, the court delivered a victory to the plaintiffs bringing these cases, those with families affected by the ban and the Hawaii attorney general who brought suit partly on behalf of the state’s university. Who falls outside the line, as the court itself pointed out, are refugees who lack any bona fide relationship to the U.S. In their case, “the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.” To be sure, protecting national security is a compelling governmental interest, but the government has not produced any evidence that the travel ban actually preserves national security or that eliminating the ban would harm national security. By contrast, what is at stake for refugees excluded by the ban is a matter of life and death.

The U.S. has a moral obligation to take in those fleeing persecution and violence, including those who may have no prior connection to the country. Many noted the irony of President Trump signing his initial executive order closing U.S. borders to refugees on International Holocaust Remembrance Day. Not only did the EO suspend travel by citizens of seven (later revised to six) predominantly Muslim countries; it also halted the resettlement of refugees and cut the number of refugees to be admitted down to 50,000 from 110,000.[2] Protests sprang up at airports around the country with demonstrators carrying signs that said “Refugees welcome,” “No Ban, No Wall,” and “Shame.”

There are 16.1 million refugees currently under the UNHCR’s mandate. The vast majority (86 percent) are currently hosted by developing countries, with the top host countries being Turkey (2.5 million refugees), Pakistan (1.6 million), and Lebanon (1.1 million).[3] Geographic proximity is the de facto rule by which the responsibility toward refugees is distributed: neighboring countries are the first place refugees are able to get to, and the principle of non-refoulement (not returning refugees to a place where they would face persecution) has resulted in an international system of refugee protection that reinforces inequalities between rich and poor countries.

There is no generally recognized legal obligation to take in refugees for resettlement. What about as a moral matter? What would a more just system of sharing responsibility to resettle refugees look like? It would take into account not only prior relationships to a particular country but also a state’s capacity to integrate refugees. For example, we could argue the U.S. has a special responsibility toward Iraqi and Afghan refugees in virtue of U.S. intervention in these countries. Relevant criteria of state capacity include the size of the state’s territory, its population size and density, GDP, and unemployment rates. Wealthier countries with stronger integrative capacities should bear more responsibility than poorer countries with weaker integrative capacities.

You don’t have to accept the details of this particular proposal for sharing responsibility toward refugees to agree that the U.S. should be doing more to assist refugees. In 2016, the U.S. overseas refugee program admitted 96,900 refugees, the highest number of refugees referred by the UNHCR for resettlement.[4] This year Trump has set the cap at 50,000. It’s not just global humanitarian principles at stake but America’s own self-understanding as a nation offering refuge for the “huddled masses yearning to breathe free.” One sign I saw protesting Trump’s EO captured it well: “un-American.”

*Sarah Song is a Professor of Law and Political Science at U.C. Berkeley

[1] Donald J. Trump v. International Refugee Assistance Project, 582 U.S. _ (2017): https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf.

[2] Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States, 82 F.R. 8977 (Jan 27, 2017). (https://www.federalregister.gov/documents/2017/02/01/2017-02281/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states) and Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States, 82 F.R. 13209 (Mar 6, 2017). (https://www.federalregister.gov/documents/2017/03/09/2017-04837/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states).

[3] United Nations High Commissioner for Refugees, “Global Trends: Forced Displacement in 2015,” 2-3.

[4] See http://www.unhcr.org/globaltrends2016/.

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Republican Bill Would Make it Easier for Employers to Access Your Genetic Makeup

By Rep. Louise Slaughter (D-N.Y.)*

When scientists started the process of sequencing the human genome, it began to unlock limitless advancements in medicine that were and remain virtually unparalleled in our history. At the same time, a new risk arose that genetic information could be used for employment and health insurance discrimination. Every American was a potential victim; none of us were born with perfect genes.

No one should be forced to live in fear that their genetic information could be used to deny them a job, educational opportunity, or health insurance. Despite the fact that everyone has a bad gene, I’ve seen too many people discriminated against. That’s why I wrote the first genetic nondiscrimination bill in 1995. My hope was to move the legislation forward to outlaw discrimination and remove a major barrier to making progress in genetic research. Unfortunately, many of my colleagues, persuaded by self-serving arguments from the insurance industry, put up a fight and failed to give this bill the attention it deserved.

In politics and life, you’re only defeated when you give up. It took longer than I would have liked, but we finally had success after I introduced the bill for a full seven Congresses. After this fourteen-year fight, my bill, the Genetic Information Nondiscrimination Act (GINA), finally passed the House by a vote of 414-1 and the Senate unanimously in 2008, before being signed into law by President George W. Bush.

The late Senator Ted Kennedy, D-Mass., called this bill “the first civil rights act of the twenty-first century,” and Dr. Frances Collins, who is now the Director of the National Institutes of Health, said that watching it pass in Congress was a seminal moment in his career.

By prohibiting the improper and discriminatory use of genetic information, people could take advantage of the life-altering potential of genetic research without fearing that their employers could fire them and their health insurers could raise their rates based on a test result. This law has since gone on to play a leading role in much of the groundbreaking medical research being done today.

Congress reiterated its support for the fundamental importance of this law when it passed the 21st Century Cures Act late last year, which was signed into law by President Obama. The bipartisan legislation contains some of the most significant advances in research privacy protections in decades, giving those taking part in genetic testing even more safeguards to keep their data private.

Despite the long-standing, bipartisan backing for GINA and the recent widespread support for the 21st Century Cures Act, congressional Republicans are now working quickly and quietly to roll back these safeguards by passing H.R. 1313. The so-called Preserving Employee Wellness Programs Act would make it easier for employers to access their employees’ medical information and genetic testing. Worse still, this proposal would give employers access to the same information about their employees’ spouses and even their children. Any employees who decline to provide this information would face penalties that could cost them thousands of dollars a year.

These financial penalties are a way for employers to force their employees to provide sensitive medical information and would make a private health condition anything but. This Republican bill would take our nation back to the days before GINA, where employees could once again have their genetic information used against them, with their jobs and health care back on the line.

We cannot afford to turn back the clock with the Preserving Employee Wellness Programs Act and reverse the progress we’ve made under GINA. Private genetic information should remain exactly that, and not follow an employee into the workplace. If Republicans succeed in passing this bill, it would open an enormous loophole in Americans’ hard-won privacy protections and threaten the remarkable medical research progress we’ve made in recent years.

I’m gratified by the many agencies, groups, and advocates that have already weighed in against this legislation. The public must join the scientific and consumer protection community to demand that Congress protect our privacy and promising medical breakthroughs by scrapping this dangerous bill.

 

*Rep. Slaughter has served as the U.S. representative for New York’s 25th District since 1987 and is the current ranking member of the House Rules Committee. Her work on GINA previously was published in the Harvard Journal on Legislation.

Photo Credit: Andrea Laurel

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Presidentializing Incivility: Trump and the Expansion of Presidential Opportunity

By Brian Christopher Jones*

No government or military experience…fine.

Don’t read (beyond Twitter)…fine.

Refuse to release your tax returns…fine.

Encourage violence at your campaign rallies…fine.

Degrade women about their “looks”…fine.

Mock disabled persons…fine.

Belittle political opponents and defame their families…fine.

Brag about groping and touching (potentially sexually assaulting) women…fine.

Openly lie to the American public…fine.

And the list could go on…

The above is not meant to disparage but to demonstrate the current harsh reality of the American presidency. US citizens voted in a candidate that displayed these qualities. Further, the list poses significant questions for politics more generally, such as: what role should credentials and experience—governmental or non-governmental—play in evaluating potential leaders; should leadership candidates adhere to contemporary customary norms; and, perhaps most importantly, is there a level of dignity and civility that politicians, and especially leaders such as presidents, should abide by? Mr. Trump’s candidacy and election victory have established an identity politics beyond the typical demographic characteristics we tend to associate with party politics. Ultimately, Trump has presidentialized incivility, and in doing so has vastly expanded presidential opportunity.

After Barack Obama’s 2008 election, commentators from around the globe proclaimed that his victory opened the doors ever wider, not only to the American dream, but to the presidency. That anyone, no matter their background or skin color, could ascend to the highest office in the land. For America it was a transformational moment: a Black President…finally. After all the years of subtle—and at many times overt—racism in the United States, someone came along that shattered traditional conceptions of the American “president,” which had been middle aged or elderly white men until that point.

There remains little doubt that Barack Obama’s ascension to the presidency was a watershed moment, not merely for the African American community, but for the country as a whole. Obama’s 2008 victory was a decisive repudiation of George W. Bush’s time in office; a time where the President of the United States often appeared oblivious—and therefore easily manipulated—on matters of domestic and foreign policy. Obama was the opposite of George W. in terms of detail, policy knowledge and international worldview. Where Bush would quip, Obama would lecture; where Bush led with his gut, Obama led with his head. This is where, we thought, the American presidency was headed: to brainy government and thoughtful foreign policy, as opposed to “shooting from the hip” (in large part, Hillary Clinton was also a rebuke to the latter style of governance). Boy, oh boy, were we wrong.

Eight years later, the opportunity to become the President of the United States has expanded, perhaps even more widely than it did after President Obama’s two victories. It has expanded to the point that even outsiders with no government or military experience, and a collection of incendiary policy ideas, can now reach such heights. This newfound expansion embodies significant differences compared to Obama’s victories, or even Mrs. Clinton’s nomination. The latter two examples fit traditional models of identity politics, expanding presidential opportunity based on demographic characteristics. These characteristics dominate how we discuss identity politics and expansion of opportunity: Obama as first Black president; Hillary as first female presidential candidate. Such characteristics do matter: just like Obama’s two victories, Mrs. Clinton’s historic nomination and victory in the popular vote demonstrate that women can readily compete for America’s highest office. And yet, Mr Trump’s victory opened up the identity politics of the presidency in a radically different—more sinister—manner: embracing an “outsider” status and brazenly disregarding presidential customary norms.

Just think of what Barack Obama had to do to get into the White House:

  • Hold impeccable academic credentials (BA – Columbia University; JD – Harvard Law School)
  • Whilst at law school, was president of the Harvard Law Review, the most prestigious law journal in the country
  • Lectured constitutional law at the University of Chicago Law School for over twelve years (1992-2004)
  • Served in the Illinois State Senate for eight years (1997-2004)
  • Served in the United States Senate for four years (2005-2008)

No doubt, these are impressive credentials for a presidential candidate; they are also some of the more traditional qualifications associated with the presidency. Trump, meanwhile, held distinctively unconventional credentials: he managed a vast real estate enterprise that his father left him in a most generous position to run. Additionally, by being the glossy, uncompromising boss that employees dare not challenge, he also starred in a hit American reality television show: The Apprentice. Trump was also never formally associated with the Republican Party, besides speaking at a couple CPAC conferences and being a registered Republican in time for the 2016 election (he has also been a registered Democrat for much of his life). Thus if there was ever any distinguished “route” to the presidency, Trump certainly broke it.

Beyond holding “presidential” credentials, Trump’s victory shook one of the core tenants of America’s political system: that no matter the party, a degree of civility and common decency adorns the presidency. This means that not only is there a certain amount of respect given to the person holding the office, but also the individual is supposed to uphold presidential values (some such values can be found here). Previously, these standards displayed themselves even before individuals attained the office. Whilst undergoing the gruelling presidential campaign, candidates have commonly acted in a manner that was seen to be “presidential.” Generally this has been understood as respecting your opponents, complying with contemporary norms (e.g., releasing your tax returns), and upholding the idea that the job requires a commitment to the general public—not just your core contingent of voters. Such customary norms were shattered with Trump’s victory.

Therefore, expansion of access to the presidency after Trump’s election not only concerned credentials; it also dealt a serious blow to the customary norms we associate with the office. Mr. Trump’s candidacy displayed little—if any—of the dignity and civility required to hold America’s highest office. Ironically, his lack of respect for others and reckless behavior appear to have won him the position. Post-Trump, is there any incentive for future presidential candidates to display decency and civility, given that doing so may hinder their prospects of success? Has the presidency been opened up to someone like Kanye West, or some other vastly inexperienced celebrity? Probably so.

But, how much do dignity and civility in politics really matter? This is a difficult question to answer succinctly, but in democracies it is fair to say it matters a great deal. The whole idea of democracy is based on the acceptance that different viewpoints abound, and within reason, those perspectives should be respected—even vigorously protected. In parliamentary democracies such as the United Kingdom the acknowledgement that no one leader (or party) has unfettered power is constitutionalized in mechanisms such as the “loyal opposition,” which requires a degree of civility amongst the government and the opposition. And yet the most disconcerting aspect of Trump’s candidacy, and subsequent presidency, has been his fierce, combative defiance to any hint of opposition to his policies or worldview. Such an attitude presidentializes incivility, and threatens the quality of American democracy.

Perhaps the only comfort at this point to those who still hold value to the American presidency is that Barack Obama, and even his predecessor, George W. Bush, understood the gravity of the position (so, too, did virtually all the presidents before them). Trump, meanwhile, has repeatedly displayed a slipshod attitude towards the position; and it is this indifference which may ultimately be his downfall.

*Brian Christopher Jones is a Lecturer in Public Law at Liverpool Hope University.

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Repeal of Dodd Frank Act-Heralding a new financial crisis?

By Nicolas Deising* & Nihal Dsouza**

The Dodd Frank Act is considered to be the most ambitious and far reaching legislation regulating the financial sector since the Great Depression of the 1930’s. On the surface, it instills confidence in the financial system. At a deeper level, it is aimed at preventing similar occurrences to the 2008 financial crisis, in which millions of people lost their homes and jobs and trillions of dollars of national wealth disappeared. Despite its benefits, the Act has been criticized for being overly complex and not achieving its stated goals. Most recently moves, both through an executive order and legislative action in the Senate, have been made to reduce the Act’s efficacy and subsequently clear the path for its repeal. These decisions of the new Administration are in line with their policy of minimum governmental regulation.

These measures, however, may prove to be short-sighted as they underestimate the importance of the legislation. The Dodd Frank Act has made the financial system more secure by providing significant tools to ensure stability and consumer protection. It ensured that systematically important banks did not indulge in inherently risky activities such as proprietary trading. By doing so, systemic risk is precluded wherein failing big banks would not be able to pull down smaller ones.

In order to prevent the occurrence of a new crisis, Dodd Frank introduced a new regulatory regime with strict obligations and prohibitions for financial institutions on the one hand and a plethora of provisions for consumer protection on the other. Dodd Frank puts in place a regulatory framework to reduce risks to the financial markets. The Act has numerous sections ensuring that the responsible authorities have the necessary discretionary powers for effective implementation and enforcement. The Securities Exchange Commission (SEC), the Commodities Futures Trading Commission (CFTC), the Board of Governors of the Federal Reserve System and finally the Consumer Financial Protection Bureau (CFPB) are essentially responsible for ensuring implementation of the Act.

The CFPB, established by Dodd Frank serves the vital function of preventing predatory mortgage lending, which was one of the major factors that led to a bubble on the housing markets. Thus, it acts as an independent financial regulator. Furthermore, the Act also created an interagency group, the Financial Stability Oversight Council (FSOC), which is endowed with the authority for monitoring risks to the financial system. Its purpose is identifying risks and responding to them and promoting market discipline. The FSOC consists of representatives from federal and state regulators as well as independent insurance experts. A central component of the Act is the “Volcker Rule” in Title VI, which prohibits speculative activities for commercial banks. In particular, the Volcker Rule doesn’t allow banks to invest in hedge funds or private equity firms. The Act in Title VII also addresses the reduction of risks inherent to derivatives trading. Over-the-counter (OTC) credit derivatives spread and increased the risks posed by asset-backed securities (ABS) and collateralized debt obligations (CDO) during the crisis. Therefore, the Act mandates higher transparency standards and liquidity requirements for financial institutions. To decrease systemic risk, the Act also requires clearing over a central counterparty that sits between the buyer and the seller and guarantees the performance of contracts. Additionally, Dodd Frank mandates exchange trading for several swaps. Exchange trading, in contrast to over-the-counter trading is standardized, transparent, and regulated and consequently safer. Furthermore, the Act imposes higher capital requirements on financial institutions and thereby decreases their leverage. The council has to make recommendations to the Federal Reserve to establish standards for risk based capital, leverage, liquidity, and contingent capital. Another major achievement of the Act is the regulation of credit rating agencies like Moody´s and Standard and Poor’s by creating an Office of Credit Ratings at the SEC.

The Dodd Frank Act has been the subject of numerous criticisms. It has been argued that the Act increases the compliance costs for financial institutions without giving any substantial benefits to the public. Critics also argue that the Act unduly burdens small banks by subjecting them to the same rigorous standards as larger banks, and that this is bad for the economy. Moreover, some scholars have raised arguments against the consumer protection provisions, on grounds that the added cost and complexity makes it more profitable for creditors to concentrate their lending only on well-to-do borrowers, thereby making it harder for middle-class borrowers to access credit. Furthermore, it is contended that increased regulation is inherently bad for consumers because banks would ultimately pass on the added cost of implementation to them. There are also worries that the Act is overly complex, and that too much regulation itself affects financial stability. In addition, it is argued that excessive regulation and the absence of a level playing field puts U.S. institutions in more difficult position then their European counterparts, leading to regulatory arbitrage.

Most of these criticisms can be addressed and do not justify an outright repeal of the Act. The threat of regulatory arbitrage, for instance, is greatly reduced by the uniformity in the approach taken by the G20, and in any case with the Basel III standards implemented and transposed universally there will be little chance of regulatory arbitrage. Furthermore, it is better for consumers to pay a little more for financial services rather than face the prospect of another banking crisis. It is also important not to forget that the Act provides legislation in important areas that were hitherto unregulated; for instance, it regulates shadow banks and the non-bank financial institutions (NBFI), which were previously contributors to the crisis. It prevents predatory lending and the so-called Ninja Mortgages. Although there is merit in some of the criticisms notably regarding the negative impact on smaller or community banks, the safer way forward, which would be acceptable to both sides of the political spectrum, would be to amend the Act and not try for an outright repeal. A possible solution would be to reduce the burden on smaller banks by ensuring that the strictest requirements are only for the systemically important financial institutions (SIFIs) and not the smaller institutions.

With the passing of almost a decade since the financial crisis, it appears as if lawmakers have gotten lax and forgotten the catastrophic effects which came in its wake and the lack of regulation which led to it, which made some of the most significant financial institutions collapse. Dodd Frank was intended to ensure that SIFI’s would not fail, and this goal remains as relevant today as it was pre-financial crisis. The Act contributes enormously to the progress made in recent years in ensuring a more resilient banking system that can limit the outfall of any potential future crisis. Its repeal would make many bankers happy but would in effect ‘pull the rug out from under’ the global financial system.

* Nicolas Deising is a Research Assistant at the University of Bonn and a PhD Student.

** Nihal Dsouza is a Research Assistant at the University of Bonn and a PhD Student at the International Max Planck Research School for Successful Dispute Resolution (IMPRS-SDR).

Photo Credit: Nakashi

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Repealing the ACA Would be a Step Backwards in Treatment of HIV

By Mark Satta*

“It was a holocaust…All of my peers died of AIDS, and I have no one to celebrate my past or my journey, or to help me pass down stories to the next generation. We lost an entire generation of storytellers with HIV.” Those are the words of David Mixner, a civil rights activist and author, who lived through the horror of the AIDS crisis in the 1980s and early 1990s in the United States—a time in which a diagnosis of HIV was, for most, a death sentence, and in which the treatment options for HIV/AIDS were extremely limited.

In the intervening years, medical advances have revolutionized the prospects for those diagnosed with HIV. It is no longer a death sentence. With the proper medical treatment, most people with HIV can live long and healthy lives. Furthermore, recent studies have shown that proper medical treatment can greatly reduce (and perhaps completely eliminate) one’s risk of transmitting HIV to others. We now have the medical tools needed to prevent new HIV infections and to help those currently infected with HIV lead healthy, flourishing lives.

But proper treatment for HIV is expensive and cost barriers have hampered progress in containing the virus and taking care of those living with HIV now.

The Affordable Care Act (ACA), passed under the Obama Administration, removed substantial cost barriers to treatment for many HIV positive people through measures such as the expansion of Medicaid and the banning of preexisting condition exclusions. A study from the Kaiser Foundation found that these measures resulted in a significant increase in the percentage of HIV positive people living in the United States who have the health insurance they need to afford treatment.

Provisions in the American Health Care Act (ACHA)—i.e. the GOP’s proposed ACA replacement—would shrink Medicaid funding and coverage and would allow insurance companies to deny health insurance to those with gaps of more than 63 days in their health insurance coverage. These changes run the risk of undoing much of the progress that has been made under the ACA to provide affordable health insurance and treatment for those with HIV. Even though this particular bill faced difficulties in the House of Representatives, most of the evidence suggests that any healthcare alternative proposed by the GOP is apt to contain similar provisions.

Recent new isn’t all bad for those fighting for HIV treatment and prevention. The Trump administration’s budget retains funding for valuable organizations used to fund HIV treatment like the Ryan White HIV/AIDS Program, which financially assists those with HIV who can’t afford treatment, and the President’s Emergency Plans for AIDS Relief (PEPFAR), which provides relief for those with HIV and AIDS globally.

But while these funds are not being cut, unless they are expanded, repealing the ACA will result in a larger group of people needing to share these limited resources. Thus, without compensating measures, repealing the ACA would constitute a step backwards in our ability to provide medical care for HIV positive people and in addressing the impact of HIV.

We should acknowledge the significant benefits that continued funding of programs like Ryan White will allow for, but we should also recognize both the imprudence and callousness of taking a step backwards in the treatment of HIV/AIDS, when instead we should be continuing to take steps forward.

We have the medical resources to keep HIV positive people healthy and to stop the spread of the disease, yet in 2014 there were over 6,700 deaths attributed directly to HIV and in 2015 there were still almost 40,000 newly diagnosed cases of HIV in the United States. And the burden continues to fall disproportionately on minorities like African Americans, Latinos, and gay and bisexual men.

The limits of our action contribute to the death and suffering of thousands of Americans living with HIV every year, to the prolongation of an unnecessary risk to thousands more, and to an increased burden on society generally as we expend resources on emergency and end of life care that could have been spent instead on preventative measures and earlier treatment.

In the 1980s, we lacked the knowledge and medical treatment needed to prevent the death of a generation of Mixner’s storytellers. But with groundbreaking advances in the medical field, the responsibility for the storytellers we lose in this generation lies with us. That potential loss is just one of many examples of the very real consequences that repealing the ACA will have on chronically ill Americans. And it is up to all of us to fight together to protect the interests of those in need of care.

*Mark is a 1L at HLS and an Online Editor for HLPR.

Photo Credit: Ted Eytan