Harvard Law & Policy Review

Michael Stephan 

Last week, the Ninth Circuit reversed an immigration court decision that denied political asylum to a Chinese immigrant who claimed to have been persecuted in China for practicing Christianity.  The immigrant, Lei Li, was initially denied asylum relief because the Immigration Judge found Li’s story of persecution to be not credible.  The reason for the IJ’s adverse credibility finding: Li thought that Thanksgiving was a Christian holiday.

The IJ, believing Thanksgiving to be not a Christian holiday, viewed Li’s understanding of Thanksgiving as an indication that Li was not really a Christian.  Accordingly, the IJ believed that Li must have fabricated his story of persecution, and Li’s asylum petition was denied.

The Ninth Circuit properly reversed in Li v. Holder, holding that “an IJ’s perception of a petitioner’s ignorance of religious doctrine is not a proper basis for an adverse credibility finding.”   Li’s case was remanded for further proceedings in immigration court.

Interestingly, the Ninth Circuit pointed out that historical American figures including George Washington and Abraham Lincoln saw Thanksgiving as a Christian holiday, so it’s not even clear that Li’s understanding of Thanksgiving was incorrect.  More importantly, however, is the Ninth Circuit’s clear directive that an IJ cannot simply deny relief if it thinks the immigrant-petitioner lacks adequate knowledge about his claimed religion.  That is, so-called “Bible quizzes” and other religious tests are improper bases of credibility determinations in the immigration context.

Immigration cases make up about 30% of the Ninth Circuit’s total caseload, and many (if not most) of those cases involve claims of religious persecution.  Various forms and intensities of Bible quizzes have been used in the past to ferret out the incredible petitioners from the credible ones (see, e.g., this 2008 case, Cosa v. Mukasey), and the Li court’s bright-line prohibition on such quizzes should clarify, at long last, that they are valueless.  The Li decision, therefore, constitutes a powerful precedent that protects the religious beliefs—and religious ignorance—of immigrants seeking removal relief.

Jay Willis

In the wake of November’s midterm elections, Congresswoman Virginia Foxx (R-NC) was appointed this past January as Chair of the House Subcommittee on Higher Education, Lifelong Learning, and Competitiveness.  She takes over from Congressman Rubén Hinojosa (D-TX), who chaired the subcommittee during the 111th Congress. Though she is undoubtedly qualified to chair the committee, some of her recent comments indicate that she may pose serious resistance to the President’s educational goals.

Congresswoman Fox’s professional background fits nicely with this position.  She holds a Doctorate of Education from UNC-Greensboro and, prior to launching her legislative career, held both faculty and administrative positions at Appalachian State University.  She also served as President of and, later, consultant to Mayland Community College (NC) before entering the North Carolina Senate in 1994.  In addition to her recent appointment and her education credentials, Foxx is a member of the powerful House Rules Committee, and she previously gained notoriety in 2009 during House debate over the Matthew Shepard Act, when she referred to the characterization of Shepard’s murder as a hate crime as a “hoax” (a statement that she retracted soon afterward).

[Read more…] about Introducing Congresswoman Virginia Foxx

Yevgeny Shrago 

I visited Washington, D.C. last weekend and walked around the rapidly gentrifying Columbia Heights neighborhood. While admiring the fantastic looking old houses and the shiny new development, I noticed dozens of abandoned houses dotting the streets.  These weren’t houses in the process of being gutted and rebuilt.  They were simply boarded up and vacant. With the way property values have shot up in that area since the D.C.’s metro put in the Green Line ten years ago, I was shocked that so many houses could still be abandoned.  The explanation I came up with comes from a piece of tax policy known as fractional assessment, which means that only a small percent of a house’s actual value is taxed.  This policy became enshrined in statute in large part to protect homeowner’s from the effect rising property values would have on their tax bills.

[Read more…] about Holes in Gentrification

Smita Ghosh

On Jan. 22, members of the board of the North Carolina State Board of Community Colleges voted unanimously to give school officials the discretion to refuse to admit “threatening” students.  Members say that the rule, which allows colleges to deny admission to students who present an “articulable, imminent and significant threat” to others, has been on the table since the 2007 shooting at Virginia Tech.

The rule, which could go into effect in several months if it is approved by the state’s rules commission, reflects the difficulty that institutions face in balancing a need for safety measures with the rights of individual students.  School safety officials face the daunting task of preventing incidents like the Virginia Tech shooting in an era of relaxed gun control laws, even after the recent tragic shooting in Arizona.

[Read more…] about Critics Fear Discrimination after Change in North Carolina Admissions Policy

Anthony Kammer

Jacob Hacker and Paul Pierson’s Winner-Take-All Politics: How Washington Made the Rich Richer was a good book and one that should be getting far more attention. Their thesis is that American inequality is at its base political—that is, inequality is not the result of rational market forces but is the byproduct of legislation lobbied for by organized industry insiders at the expense of an uniformed public. While people on the left have been making this point for some time, Hacker and Pierson have done extensive empirical research and make this argument in a cogent, well-organized way.

The income statistics this book opens with are unsettling. (They paint roughly the same picture as Tim Noah’s Slate series on the Great Divergence). Conceptually, their approach offers some helpful tools for understanding the thirty-year stagnation of America’s middle class and the emerging class of uber-rich.

This book incorporates notions of political economy that have grown out of favor during the recent climate of Chicago school orthodoxy. Many economists, particularly leading up to the financial crisis, have expressed skepticism that politics could explain macro-economic trends and tended to rely on rational market explanations. Hacker and Pierson (political scientists at Yale and Berkeley respectively) instead begin from the position that markets could not exist without government.

Taking this insight as their starting point, the authors demonstrate how political decisions establish market parameters. The explosion in income inequality was enabled not by raional market forces but by legislation and legislative drift, the process by which legislation grows out-of-touch with its original purposes. Hacker and Pierson note that beyond shifts in tax policy, politicians enabled a historic upward shift in income by rewriting the rules of financial markets and executive compensation, and by failing to take action as unions declined in both membership and political influence.

The authors do the reader another tremendous service by focusing on political organizations and institutional changes, rather than on conventional narratives of election- and personality-driven politics which often obscure how policy is made and passed in the US. The emergence of the national party committees and well-funded special interest organizations has transformed our political ecosystem. The ever-increasing access that business coalitions and industry lobbyists is one of the crucial mechanisms that entrenches winner-take-all policies and further rewards the beneficiaries of the status quo.

As dependencies developed between politicians and these new organizational forms, the parties faltered in their ability to stand up to industry. The authors spare no one in observing how these transformations affected both the left and the right—both Sens. Chuck Schumer (D-NY) and Phil Gramm (R-TX) are singled out for opposing all efforts to regulate the financial industry, and attention is given to the fact that Clinton went from being chair of the strongly pro-industry Democratic Leadership Council to the 1992 Democratic Party presidential candidate.

This book is excellent, not only for drawing attention to precipitous economic inequalities not seen since the Great Depression, but also for identifying how legislation and eroding political institutions produced this outcome.

Yevgeny Shrago 

The wave of Tea Party victories in the last election cycle means renewed promises of closing the deficit with vague promises of future spending cuts. The inability of Tea Party governments on the state and local levels to fund deficits with cheap money means that it should be possible to observe what sorts of “unnecessary” government services the newly elected Tea Party candidates and other conservative “deficit hawks” would cut on the national level if (when?) the cheap credit to the federal government runs out. Republicans have schemes for privatization, deregulation and general dismantling of many sectors of government and the Tea Party mandate seems like the perfect opportunity to try out school vouchers or maybe privatizing municipal sewers.

[Read more…] about The Tea Party and Local Fiscal Responsibility