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Trump Is Playing Chicken With Millions of Health Plans. The Result Might Be a Government Shutdown.

by RoyceSteinmetz Posted on April 18, 2017

Mother Jones

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Members of Congress are home in their districts until next week, but when they come back to town they’ll be facing an imminent government shutdown—unless they manage to pass last-minute legislation to keep federal programs funded. A shutdown now appears a little more likely thanks to some gamesmanship from President Donald Trump over Obamacare that prompted Democrats to issue threats of their own last week.

The showdown involves an Obamacare program know as “cost sharing reduction,” which requires insurance companies to offer discounted copayments and deductibles to low-income people who buy health plans on the individual market. In return, the federal government makes payments to compensate insurers for this expense. Last week, Trump threatened to stop making these payments to insurers—a move that could lead to massive price spikes for millions of people and cause insurers to flee from the individual marketplaces.

By issuing the threat, Trump was attempting to scare Democrats into agreeing to repeal Obamacare. “Obamacare is dead next month if it doesn’t get that money,” Trump told the Wall Street Journal. “I haven’t made my viewpoint clear yet. I don’t want people to get hurt…What I think should happen and will happen is the Democrats will start calling me and negotiating.”

But Trump’s gambit may have backfired. Democratic leaders are now saying they might not vote to keep the government funded next week unless that funding bill includes a provision appropriating money specifically for the cost sharing reductions. “We will not negotiate with hostage takers,” Sen. Ron Wyden (D-Ore.) warned last week.

Democrats may actually have a surprisingly strong negotiating position. Despite controlling both chambers of Congress, the GOP needs their help to keep the government open. Republicans will need support from at least eight Democratic senators in order to avoid a filibuster. And given House Republicans’ penchant for defying party leadership, Speaker of the House Paul Ryan (R-Wisc.) might also need some Democratic votes to overcome conservative objections to the funding bill.

When it comes to the controversies surrounding Obamacare, the cost sharing reduction payments have received relatively little attention. But they are an essential component of how the law makes insurance affordable for lower-income families. For anyone who makes less than 250 percent of the federal poverty line ($30,150 for an individual, $61,500 for a family of four), the government pays insurance companies to lower out-of-pocket costs.

About 58 percent of people who purchase insurance through Obamacare’s marketplaces qualify for the reduced copays and deductibles, totaling more than 7 million people. For consumers, the savings can be substantial. The Kaiser Family Foundation found that for people below 150 percent of the poverty line, average deductibles dropped from $3,609 to $255 thanks to the program. It all adds up to $7 billion in federal spending for 2017, and it’s projected to rise to $10 billion next year and $11 billion in 2019.

The current debate revolves around a quirk in the way the law was written. The Affordable Care Act requires the government to reimburse insurance companies, but lawmakers apparently failed to include a provision to explicitly “appropriate” money for these payments. (It’s not enough for Congress to authorize a program; under the Constitution, Congress must also appropriate funds for a program before the government can spend money on it.) The Obama administration started to dole out the funds anyway, citing a different appropriation authority, but House Republicans objected and sued. A federal judge sided with Republicans last year, though that decision was stayed pending appeal. (The details are too convoluted to explain in full here, but Vox has a great description.)

After Trump won the presidency, House Republicans asked the courts to hold off on the case, since they’re hoping they can end the program by repealing Obamacare. Now, the Trump administration has until May 22 to let the court know if it still plans to appeal the ruling. If Trump chooses, the administration could unilaterally drop the case and let stand the lower court decision barring the payments.

But while the administration can choose to stop making the payments to insurance companies, insurers would still be required to offer discounted policies. On that point, the law is explicit: Insurance companies must reduce out-of-pocket costs for low-income consumers. In other words, they would still have to offer cheaper copays and deductibles—just without the government assistance they were promised.

An analysis by the Kaiser Family Foundation found that, in order to offset those lost funds, insurers would have to increase premiums by 19 percent on average. That increase would not be evenly distributed across the country, though. The rate increase would likely be far less drastic in states that expanded Medicaid under Obamacare, since Medicaid provides government-sponsored insurance to low-income people who would otherwise use the individual marketplaces. North Dakota would see the smallest premium spike if the payments to insurers stopped—a 10-percent increase. By contrast, insurance premiums would rise 27 percent in Mississippi and 25 percent in Florida and Alabama.

It isn’t just Democratic politicians who are crying foul over Trump’s threats. The health care industry industry last week implored Trump to maintain funding for the subsidies. In a letter to the president—signed by the American Medical Association, America’s Health Insurance Plans, BlueCross BlueShield, and the US Chamber of Commerce—industry groups warned that unless Trump makes clear that he’s going to continue the payments, insurers will flee the markets in 2018, and premiums for the remaining options will skyrocket.

“The most critical action to help stabilize the individual market for 2017 and 2018,” the letter says, “is to remove uncertainty about continued funding for cost sharing reductions.”

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Trump Is Playing Chicken With Millions of Health Plans. The Result Might Be a Government Shutdown.

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Federal Judge Rules That Texas Intentionally Discriminated Against Minority Voters

by StephanLeavens Posted on April 11, 2017

Mother Jones

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A federal judge Monday ruled that the state of Texas intentionally discriminated against African American and Hispanic voters when it enacted a draconian voter ID law in 2011. The ruling could pave the way for courts to require Texas to get approval from federal authorities before making future changes to its voting laws.

This is the second time Judge Nelva Gonzales Ramos has found that state lawmakers purposefully engaged in illegal discrimination when it adopted the photo ID requirement in 2011. In 2014, Ramos found that the law had a discriminatory effect and intent. A finding of discriminatory effect is sufficient to force a voting law to be change, but a discriminatory intent finding can open a state up to more significant punishments. The Fifth Circuit Court of Appeals upheld Ramos’ finding of discriminatory effect but asked her to reconsider the question of intent. Her ruling on Monday reaffirmed her previous decision.

Critics of the photo ID law pointed to the fact that Texas lawmakers allowed voters to use concealed gun permits, which are more likely to be held by white voters. But the law disallowed identification cards issued to state employees and public university students, which are more likely to be used by minorities. In her opinion, Ramos pointed out that Republican lawmakers refused to include more forms of acceptable ID, reduce the cost of acquiring an ID, adopt a more lenient policy toward expired documents, or approve voter education about the new requirements. “These efforts revealed a pattern of conduct unexplainable on nonracial grounds, to suppress minority voting,” Ramos wrote in her opinion.

In 2013, the Department of Justice joined civil rights groups, Democratic lawmakers, and voters in challenging the law. On the day President Donald Trump was inaugurated, the department signaled that it might change its position. In February, the department’s lawyers asked the court to allow the US government to withdraw from the case and urged. The DOJ also urged Ramos not to rule on the intent question until the Texas legislature had taken steps this spring to amend the law, which the Fifth Circuit had ordered it to do. Ramos allowed the federal government to withdraw from this part of the case but rejected its request to hold off on the intent ruling. However, Ramos did indicate that she would wait until the legislature recessed to issue any remedy in conjunction with her findings.

The intent finding is a major victory for voting rights advocates because the courts have wide latitude to remedy intentional racial discrimination. Most importantly, a finding of intent allows the courts, if they choose, to put jurisdictions under federal oversight so that future changes to election procedures must be approved by the DOJ. Civil rights groups are requesting such a remedy and feel their argument for putting Texas back under federal supervision—which ended when the Supreme Court gutted a central provision of the Voting Rights Act in 2013—is strong. Last month, a three-judge panel in a federal district court in San Antonio found, in a separate case, that Republicans had racially gerrymandered congressional districts in order to weaken the growing power of minority voters. Taken together, voting rights attorneys believe the two findings of racially discriminatory intent make a convincing case that Texas should be placed under federal supervision.

“This is a great win for Texas voters, but it shouldn’t surprise anyone who looked seriously at the evidence,” Myrna Pérez, deputy director of the Democracy Program at the Brennan Center said in a statement after Ramos’ ruling. “Texas legislators crafted a law they knew would hurt minority voters, without any good justification or attempt to ameliorate the harms, and they mangled the legislative process to get it through.”

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Federal Judge Rules That Texas Intentionally Discriminated Against Minority Voters

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It’s Not Every Day That a Federal Judge Pens a Tribute to a Transgender Teen

by AnalisaNaumann Posted on April 7, 2017

Mother Jones

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Gavin Grimm, a 17-year-old transgender boy from Virginia, has had a rough few months. He’s suing for access to the boys’ bathroom at his high school, and in March the Supreme Court announced that it was kicking this landmark transgender rights case back to a federal appeals court.

Today, that appeals court rejected his request to expedite his case, which means it won’t be heard until after he graduates. But along with today’s order, Judge Andre Davis of the 4th Circuit Court of Appeals penned a remarkable, must-read tribute to the teen, calling him a “brave individual” and quoting Dr. Martin Luther King:

Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals—Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few—who refused to accept quietly the injustices that were perpetuated against them. It is unsurprising, of course, that the burden of confronting and remedying injustice falls on the shoulders of the oppressed. These individuals looked to the federal courts to vindicate their claims to human dignity, but as the names listed above make clear, the judiciary’s response has been decidedly mixed. Today, G.G. adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed; as Dr. King reminded us, however, “the arc of the moral universe is long, but it bends toward justice.” G.G.’s journey is delayed but not finished.

The tribute ends with a footnote of a poem by Naomi Shihab Nye. Read the whole thing here.

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It’s Not Every Day That a Federal Judge Pens a Tribute to a Transgender Teen

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Jeff Sessions Does Not Think Your Local Police Department Is His Problem

by BeverlyWing203 Posted on April 4, 2017

Mother Jones

Attorney General Jeff Sessions on Monday ordered a review of all reform agreements between the Department of Justice and police departments nationwide, such as a recent consent decree entered to overhaul the troubled Baltimore Police Department. In a memo to DOJ staff, Sessions wrote that “it is not the responsibility of the federal government to manage non-federal law enforcement agencies.” The review—which will be led by Sessions’ two top deputies—was ordered as part of a broader assessment of all DOJ activities.

The move alarmed civil rights and police reform advocates. “We have a very serious problem in this country with the relationship between police and the communities they serve,” Jonathan Smith, who oversaw nearly two dozen investigations into police departments as head of the Special Litigation Section of the DOJ’s Civil Rights Division under President Barack Obama, told Mother Jones in a phone interview. Sessions’ memo signals “a retreat from the federal government’s commitment” to ensuring police departments comply with the Constitution, Smith said, adding that widespread misconduct in police departments is “not about bad police officers. It’s about bad systems, lack of accountability, bad policies, and bad practices.”

Under Obama, the Department of Justice opened 25 civil rights investigations into police departments and enforced 14 consent decrees, or agreements with departments that mandate reforms. All of them are all still active. In mid-January, the DOJ announced that it had reached a consent decree with the Baltimore Police Department and an agreement with the Chicago Police Department to pursue a decree just days before Trump’s inauguration. The investigation into CPD—and the negotiation process for BPD’s consent decree—were reportedly rushed to a close due to fear that both would stall under Trump. Sessions criticized the use of consent decrees during his confirmation hearings and has said the DOJ will “pull back” on police oversight efforts under his leadership.

A report released in February by Samuel Walker, a police reform expert at the University of Nebraska in Omaha, determined that most consent decrees enforced by the Department of Justice since 1994—when Congress passed legislation granting the DOJ oversight authority over local police agencies—have been successful in achieving long-term reforms. Consent decrees are binding legal agreements, and once signed, they are overseen by a federal judge and an appointed monitor. The DOJ’s ability to interfere with that process is limited, Smith said.

But there are things the DOJ can do to undermine it. It could ignore violations of decrees and stop taking police departments to court because of them. It could also seek to renegotiate the terms of a decree or to have it dropped altogether—though that would be difficult even with the cooperation of a police department, Smith said. “After all, these injunctions are entered to protect the public interest,” Smith said.

Sessions’ review calls into question whether the DOJ will follow through on enforcing a nascent consent decree with the Baltimore Police Department or enter into a decree with the Chicago Police Department at all. After Sessions sent out the memo calling for the review, DOJ attorneys asked a Maryland judge to delay a court hearing so that it could “review and assess” Baltimore’s consent decree. The city’s mayor and police chief said on Monday that they oppose any delay in the process. Chicago Mayor Rahm Emanuel and the city’s police chief also said in a joint statement yesterday they are committed to following through on the police reforms recommended by the DOJ’s report whether or not the federal government is involved. The DOJ launched investigations into the Baltimore Police Department and Chicago Police Department in 2015 amid outrage over the police-involved deaths of Freddie Gray in Baltimore and Laquan McDonald in Chicago.

Sessions has already suggested that the DOJ will stop opening new civil rights investigations into police departments. And President Donald Trump’s March budget proposal would cut more than $1 billion from the department’s resources. Funding for the department’s Civil Rights Division—which handles police reform work—is not addressed explicitly in the budget outline, but a blueprint drafted by the Heritage Foundation, from which parts of Trump’s budget appear to be lifted, would cut $58 million from the Civil Rights Division, or 33 percent of its current budget.

Christy Lopez, who also helped to oversee police reform investigations at the DOJ under Obama, said such a drastic budget cut would be a “silent killer” of the Civil Rights Division, including its work on police reform. “At that point it’s not a matter of will. You just don’t have the people” or resources to open new cases or follow up on existing consent decrees, Lopez said. “There were dozens of cases we wanted to do but couldn’t because we didn’t have the staff,” Smith said of his police reform work at the DOJ.

Given the tone Sessions and Trump have set, Smith thinks state attorneys general will now be crucial to ensuring police accountability and should exercise more oversight over their local police departments. “If the federal government is not going to do it, the states in general and other local bodies are critical to this process,” Smith said. States could mimic legislation like that in California, for example, that gives the state attorney general the authority to conduct DOJ-style investigations into local police departments and pursue a consent decree, Smith said. “There are 18,000 law enforcement agencies in the United States. The US Department of Justice is never going to get to those. But an attorney general can really make an enormous difference in their state.”

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Jeff Sessions Does Not Think Your Local Police Department Is His Problem

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How a Private Prison Company Used Detained Immigrants for Free Labor

by BlancheOQS Posted on April 3, 2017

Mother Jones

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When Carlos Eliezer Ortiz Muñoz arrived at the Denver Contract Detention Facility in Aurora, Colorado, in 2014, he was given a clothing package and assigned to a housing unit, where he’d have to stay for months. Like tens of thousands of other immigrants across the country who are kept in Immigration and Customs Enforcement (ICE) detention each night, Ortiz and his fellow detainees were waiting to see if they’d win their immigration cases or face deportation.

Before long, the private prison company that ran the detention center put Ortiz to work. Each day in his housing unit, guards assigned a crew of six detainees to clean the private and common living areas; scrub down toilets, showers, and eating tables; and sweep and mop floors. “None of us got paid anything,” Ortiz said in a court statement. But he couldn’t protest—he knew he could be sent to solitary confinement if he refused to do the cleaning. “Some of the guards would threaten us by saying, ‘¿Quieres ir al hoyo?‘” Ortiz said. “‘You want to go to the hole?'”

The GEO Group, the private prison company that operates Aurora, allegedly forced more than 50,000 immigrants like Ortiz to work without pay or for $1 a day since 2004, according to a lawsuit that nine detainees brought against the company in 2014. On February 27, a federal judge ruled that their case could proceed as a class action, breathing new life into a suit that exposes the extent to which the for-profit company relied on cheap or unpaid detainee labor to minimize costs at the Aurora facility.

“If we’re right, and these practices are illegal, it has tremendous implications on the ability of the government to use detention in the immigration enforcement architecture,” says Andrew Free, an immigration attorney on the detainees’ legal team. “It would prompt a serious rethinking of whom to detain, and how much it’s going to cost.”

GEO incarcerates more immigrants (and receives more public money to do so) than any other detention center operator, according to an analysis by the anti-detention group CIVIC. And its business detaining immigrants for ICE is only expected to grow “with this increased and expanded approach to border security,” CEO George Zoley said in a February earnings call.

According to the lawsuit, there were two ways GEO cashed in on cheap labor from detainees. There was the facility’s sanitation policy, under which detainees like Ortiz were required to work as janitors without pay. If they didn’t, they risked being punished with solitary confinement, according to GEO’s local detainee handbook. Detainees could also apply for a job in Aurora’s voluntary work program, which paid them exactly $1 a day to keep the facility running.

In a statement, GEO spokesman Pablo Paez wrote that GEO’s volunteer work program policies follow federal standards. “We have consistently, strongly refuted the allegations made in this lawsuit, and we intend to continue to vigorously defend our company against these claims,” he said. “The volunteer work program at all immigration facilities as well as the minimum wage rates and standards associated with the program are set by the Federal government under mandated performance-based national detention standards.”

ICE’s standards for immigration detention centers say that voluntary work programs are intended to give detainees “opportunities to work and earn money while confined.” Yet David Fathi, director of the ACLU’s National Prison Project, says it’s questionable whether such programs are truly voluntary for people “held in captivity, against their will.” While working may be a positive outlet for incarcerated people, Fathi says, “the problem isn’t the existence of the work program. The problem is this inherently coercive relationship that makes the workers uniquely vulnerable to exploitation and abuse.”

Some people in Aurora’s program stripped and waxed floors, while others did laundry, prepared food, cut hair, or worked in the library. Shifts lasted between three and eight hours, according to a copy of Aurora’s detainee work program policy, and detainees were paid the same $1 no matter how long they were assigned to work.

Lourdes Argueta volunteered. She was given a job as a janitor in the medical unit, where she and other detainees “clean toilets, sweep and mop floors, pull carpets and clean floors, clean windows, remove trash, clean patients’ rooms (including cleaning up blood, feces and urine), and perform other cleaning tasks,” she said in a statement to the court. She also worked in GEO’s booking area, creating new detainee files and putting together packages of clothing for new detainees.

During a deposition, GEO’s assistant business manager at Aurora testified that if there were no “voluntary workers” like Argueta, the company would need to bring in additional officers, paid at hourly wages set by rules in GEO’s contract, to get the same work done. So how much would the company have to shell out if it didn’t rely on cheap detainee labor? Under GEO’s contract with ICE, which incorporated federal wage regulations, the lowest allowable employee wage at the Aurora facility was $10.90 an hour for food service workers. A typical shift in the voluntary work program lasted approximately seven hours, according to the detainee work program policy—so if GEO had hired additional employees to do the work, it would have cost the company nearly $76.30 per shift. (That’s a lowball estimate, given that some detainees worked jobs that would have paid significantly more.) Instead, they spent $1.

That translates to huge cost savings. Take, for example, November 2012, when detainees took hundreds of voluntary work program shifts. If GEO had hired employees to do those jobs instead, the company would have spent more than $125,000 in wages and benefits that month. GEO’s actual payments: $1,680.

That number only increases if you account for Aurora’s sanitation policy, under which all detainees in the facility did janitorial work in the housing units for no pay, the lawsuit alleges. GEO employees doing the same work would have been eligible for $12.01 per hour in wages, under the company’s contract with ICE.

“If GEO was absorbing all of the labor costs, its profit would be less,” explains Nina DiSalvo, executive director of Towards Justice, one of the firms representing the detainees. Andrew Free, the attorney, goes further: “It turns their profits upside down,” he claims. “It would be a money-losing enterprise if they had to pay the people to operate this facility under the current contract.” (Given that the Department of Homeland Security pays an average of $126.46 per day to detain one immigrant, that may not be a stretch.)

So how does the company get away with it? The “dollar a day” policy dates back to 1978, when Congress passed an appropriations bill funding voluntary detainee work programs, says Jacqueline Stevens, the head of Northwestern University’s Deportation Research Clinic, whose research on detainee labor informed the 2014 suit. But that was before the rise of private prison companies, she adds—and it was initially implemented in government-run facilities, not those run by for-profit companies beholden to shareholders. “GEO’s privately held, so there’s an extra concern that they may be exploiting people in a way an institution run by federal government would not be,” Stevens explains.

When immigrants inside Aurora filed grievances asking why they weren’t paid more, GEO’s assistant business manager replied by saying that ICE, not the company, set the daily rate. But in February’s order, Colorado District Court Judge John Kane ruled that while ICE only reimburses GEO for $1 per detainee shift, the company could pay more if it wanted. (And in fact, in at least one other location, it appears to have paid detainees more than the $1 ICE reimbursed it for, Stevens says.) While the detainees aren’t eligible for employment under GEO’s contract, their lawsuit argues that GEO “unjustly enriched” itself by misleading them about how much it could pay.

“By far the greatest expense of running any detention facility is labor,” Fathi says. “GEO has got to be worried that if this practice is unlawful at one facility, it’s presumptively unlawful at all facilities.” If they lose, he adds, “they have to be looking at not just what they would have to pay at Aurora.”

The lawsuit also argues that the sanitation policy violated the Trafficking Victims Protection Act, a modern anti-slavery statute. To maintain cleanliness in the housing units, GEO used housekeeping crews like the one Ortiz was assigned to when he arrived at Aurora. According to GEO’s local detainee handbook, refusing to clean was considered a “high moderate”-level offense and was punishable by several possible sanctions, including up to three days of so-called “disciplinary segregation”: solitary confinement. Plaintiff Demetrio Valerga told the court in a statement that he “did the work anyway because it was well known that those who refused to do that work for free were put in ‘the hole.'” With the sanitation policy in place, the company employed just one janitor for the 1,500-bed facility.

ICE’s own standards say detainees can’t be required to work, except for keeping “immediate living areas” neat: making their beds, stacking loose papers, and keeping the floor and furniture uncluttered. Under questioning during a deposition, Aurora’s assistant warden of operations made it clear that GEO considered all parts of the housing unit (bathrooms and day areas, as well as cells) to be fair game. Yet a federal watchdog agency recently found that requiring detained immigrants to clean any common areas used by all detainees was a violation of ICE standards.

“Imagine you see people being yelled at by guards and thrown in solitary all the time,” Free says. “In order to avoid solitary yourself, you have to maintain the sanitary nature of the facility you’re being housed in. And then they say, ‘If you want, we’ll pay you a dollar a day to do something else. If you don’t, you’re still going to work when we tell you to.’ And the company that’s on the other end of this is making millions.”

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How a Private Prison Company Used Detained Immigrants for Free Labor

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Our Dishonest President — Part 1 of 1 Million

by WilsonElsey Posted on April 2, 2017

Mother Jones

Oh man. Here’s the lead editorial in the LA Times this morning:

This could go on forever. The online version suggests that it’s only four parts, finishing up on Wednesday, but who knows what we’ll find out between now and then? By 2020—or however long Trump lasts—this could end up being a thousand-part editorial.

And while we’re on the subject, a federal judge has ruled that it’s OK for a lawsuit to go forward accusing Trump of inciting violence at one of his campaign rallies last March. That’s sure something you don’t see every day. But Wikipedia tells me the judge is some notorious Obama appointee, so he’s probably taking direction from the same folks who ordered Trump wiretapped. As the president puts it:

Yessir. Find the leakers, and we’ll probably also find out who’s pulling the strings of this so-called judge.

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Our Dishonest President — Part 1 of 1 Million

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Your Morning in Tweets

by SavannaBeane Posted on March 28, 2017

Mother Jones

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It’s been one of those mornings. My best source to capture the flavor of the news today is my Twitter feed. In no particular order:

Um, sure, except that Nunes won’t show us the substance of the leak and misled everyone about where it came from. Other than that, spot on. And as long as we’re on the subject of Nunes:

Back to the White House now. Here is April Ryan, Washington Bureau Chief for American Urban Radio Networks:

Huh? What’s that about? Oh:

Got anything else for us today, Sean?

Roger that. Let’s move on to someone else in the White House:

So they’ve moved on from denying climate change, and are now denying that they’re even aware of what scientists say about climate change. Where are they going to be by 2020?

Finally, on a completely different subject:

Unfortunately, yes, I think it is.

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Your Morning in Tweets

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Oil Will Start Flowing Through the Dakota Pipeline Any Moment Now

by ShannaMoorman Posted on March 23, 2017

Mother Jones

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This story was originally published by High Country News and is reproduced here as part of the Climate Desk collaboration.

As of this week, Bakken oil is expected to flow through the Dakota Access Pipeline under Lake Oahe near the Standing Rock Sioux Reservation. This development comes as court proceedings continue over the high-profile battle over the pipeline that drew thousands of protestors to North Dakota last year. As law enforcement officers and Indigenous activists faced off near the construction site, the conflict played out in real time on social media, capturing international attention.

A District of Columbia court has yet to rule on the Standing Rock Sioux and Cheyenne River Sioux tribes’ claims that the Army Corps of Engineers violated environmental, historic-preservation and religious-freedom laws in its approval of the pipeline. A ruling is likely still several weeks away. The tribes have tried for temporary restraining orders to stop the flow of oil until the case is decided, but judges have rejected those as well. Dakota Access, LLC, is required to update the court weekly on whether the pipeline operations have begun; on March 20, the company said they expected oil to flow this week.

The fact that the pipeline’s backers, Energy Transfer Partners, appears to be prevailing is not surprising. Although the Obama administration had put DAPL on hold in December and called for further environmental review, then-President-elect Donald Trump vowed to push the project through once he took office. But national attention the protests brought to the flaws of the current consultation process—the federal government’s responsibilities to consult with tribes before approving major infrastructure projects that affect tribal lands—may still bear fruit on future disputes. And recent legal proceedings remind us how difficult it is for tribes to argue for religious freedom in court.

Following Trump’s late-January executive order to allow the pipeline to be finished, the Cheyenne River Sioux, located just south of the Standing Rock Reservation, filed a motion for a restraining order against the pipeline. Unlike the Standing Rock Sioux complaint based more around environmental and historic preservation violations, Cheyenne River’s argument claims the government violated the Religious Freedom Reformation Act (RFRA). “The Lakota people believe that the mere existence of a crude oil pipeline under the waters of Lake Oahe will desecrate those waters and render them unsuitable for use in their religious sacraments,” court documents say.

RFRA has an unreliable track record for tribes in court. Congress created the law in 1993 in part as a response to two cases in which courts sided with the government. In 1988 Lyng vs. Northwest Indian Cemetery Protective Association allowed the Forest Service to construct a logging road in California that would have disrupted an area sacred to several tribes. In 1990 Employment Division vs. Smith allowed two Native Americans in Oregon to be fired for failing a drug test because they had used peyote as an element of religious ceremony. But experts say RFRA’s original intention, to protect tribes from similar infringements, isn’t really bearing out in court. The most recent major failure was the case of the Snowbowl ski resort in Arizona in which reclaimed wastewater was being used to make snow on mountains sacred to several tribes. The tribes argued a violation of RFRA and ultimately lost.

RFRA has, however, worked for corporations such as Hobby Lobby. In 2014, the Supreme Court ruled family-owned corporations should not be required to cover employees’ contraception because doing so may infringe on a company’s religious beliefs. Part of the challenge for tribes, says University of Colorado law professor Charles Wilkinson, is one of translation. “Most Americans are not used to the nature of tribal religions, of having ceremonies on particular land areas as being significant to their religion,” Wilkinson says. Court documents show Cheyenne River’s attorneys explaining how the tribe views the pipeline:

“Although there can be no way of knowing when this prophesy emerged into the Lakota worldview, Lakota religious adherents now in their 50s and 60s were warned of the Black Snake by their elders as children. The Black Snake prophecy is a source of terror and existential threat in the Lakota worldview…. Lakota adherents believe that the Black Snake poses an existential threat because it will cause critical imbalance in an essential resource of the Cheyenne River Sioux Tribe: the natural, ritually pure waters of Lake Oahe.”

“You can kind of get that sense, there’s some question raised in opposing parties arguments of ‘Do they really believe this,'” says Monte Mills, a University of Montana law professor. In court in February, Judge James Boasberg reportedly questioned how a pipeline would desecrate the Missouri River if the oil itself never touched the water.

The most lasting impact of the Dakota Access battle might be greater federal attention to the process through which the U.S. government is supposed to consult tribal governments about proposed infrastructure projects that might impact those nations, says Wilkinson. “(Tribes) see consultation as almost a four-letter word,” Wilkinson says. “It’s so often just checking a box.” A 38-page memo from former Obama administration Interior Solicitor Hilary Tompkins in December described in detail the ways in which the government failed to consult tribes that may be affected by the pipeline. At one point, Tompkins notes that a draft Environmental Assessment for DAPL “failed to even identify the reservation on its maps and incorrectly said the Standing Rock Sioux Tribe had no issue with the project.” (The Trump administration suspended the memo and removed it from the Interior website in February.)

Similarly, a 73-page report released in January by the Corps of Engineers, the Department of Justice and the Department of Interior about consultation—not limited to DAPL—highlighted flaws in the process, after seeking comment from 59 tribes across the country. The report includes problems with the way the federal government “tends to look at (infrastructure) projects in a segmented way…For example, in the Dakota Access Pipeline review, four different states, three separate districts of the Army Corps of Engineers, and the Fish and Wildlife Service each looked at different parts of the project, but did not coordinate the impacts to Tribes.” That report requested further action from several federal agencies by April 2017, in establishing better consultation processes.

“Many federal statutes require consultations with states, counties and tribes,” Wilkinson says. “Maybe one way or another Standing Rock could be valuable as raising that issue.”

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Oil Will Start Flowing Through the Dakota Pipeline Any Moment Now

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Inside Trump’s Border Crackdown on Women and Kids

by melinakong46 Posted on March 19, 2017

Mother Jones

Despite President Donald Trump’s dire warnings of “bad hombres” and drugs flooding into the United States from Mexico, the most urgent issue along the border has been the influx of Central American families and unaccompanied children, many of whom are fleeing gang-fueled violence in their home countries. And the latest statistics from the border show that one of the main goals of the White House’s immigration crackdown is being realized: targeting and deterring these asylum seekers from heading to the United States in the first place.

Last week, the Department of Homeland Security (DHS) released new data on the number of migrants stopped at the US-Mexico border in February. Customs and Border Protection caught 18,762 people trying to enter the country, a 40 percent drop from January and the lowest monthly total since at least 2000 (the earliest year for which there are statistics). Of those migrants, just 27 percent were unaccompanied children or family groups, typically women traveling with kids—a huge dropoff from the last three months of 2016, when they made up 48 percent of apprehensions at the border.

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The administration was quick to celebrate the numbers. In a statement, Homeland Security Secretary John Kelly crowed, “The early results show that enforcement matters, deterrence matters, and that comprehensive immigration enforcement can make an impact.” But immigration advocates caution that Trump’s border enforcement ramp-up—like earlier attempts by the Obama administration to stem the flow of Central American migrants—could be particularly devastating for thousands of women and children from El Salvador, Guatemala, and Honduras hoping to claim asylum in the United States.

“I think what we’ve seen over the past three years is that you can’t enforce away a refugee crisis,” says Jen Podkul, the director of policy at Kids in Need of Defense (KIND), a legal aid nonprofit for unaccompanied child migrants and refugees. “Unfortunately, these executive orders and memos are going to push everybody underground.”

Katharina Obser, a senior program officer at the Women’s Refugee Commission (WRC), says she’s interviewed countless women in family detention over the past few years. “When we ask them, ‘Knowing what you know and given what’s happened, would you make the decision to leave again?’ The answer is almost always, ‘Yes, I had no other choice…’ There continues to be a lack of recognition that these are asylum seekers who are fleeing very real harm and who should have access to a fair and just immigration system.”

Here are seven ways that the White House has gone about squeezing Central American refugees:

1. Shutting down a safe path for kids

In September 2014, after the huge numbers of Central Americans at the southern border became national news, the Obama administration approved a plan to allow a select group of kids from El Salvador, Guatemala, and Honduras apply for refugee status from within their home countries. The initiative was meant to keep the most vulnerable people from embarking on the dangerous journey north. Though the Central American Minors Refugee/Parole Program was slow to get off the ground, the New York Times reported that 11,000-plus people have applied to the program, with a little more than 2,400 gaining admittance by late February—including 316 during Trump’s first month in office.

Trump’s revised travel ban, however, put the Central American Minors program on ice. In his March 6 executive order, the president suspended all refugee admissions for four months and cut the number of refugees the United States will admit annually to 50,000, down from 110,000 under Obama. And while a federal judge has issued a temporary restraining order on the ban, the CAM program’s future remains cloudy. In his February executive order on border security, Trump pointed a finger at “the abuse of parole and asylum provisions” that can allow immigrants without valid asylum claims into the United States.

2. Turning away asylum seekers at the border

In mid-January, eight immigrant rights organizations sent a complaint to DHS claiming that Border Patrol agents were turning away immigrants seeking asylum at the US-Mexico border. Under federal and international law, the United States must screen people asking for asylum to see if they have a credible fear of persecution in their home countries. If they do, they can get a full hearing in front of an immigration judge. (If they don’t, they can be summarily deported.) According to the complaint, Border Patrol agents in Texas and California had told migrants that they weren’t accepting more people and wouldn’t allow them to meet with asylum officers to file claims.

The incidents mentioned in the complaint began last summer. In one case, a Mexican police officer in a wheelchair was allegedly denied entry several times near San Diego, despite claiming he had been targeted and beaten by a drug cartel. Advocates say the situation could become untenable. “These northern Mexican border towns are so dangerous as it is,” Podkul says. “If there are just vulnerable migrants sitting around, they’re just waiting for something to happen to them.”

3. Threatening to separate moms and children

Earlier this month, Reuters reported that the Trump administration was considering separating migrant mothers from their children upon entry into the United States. Instead of detaining them together, or letting them go while they await a hearing in immigration court, federal agents could split them up—sending moms to detention and kids to government-run shelters.

Following the border crisis in 2014, women traveling with children were detained in special family detention centers that were criticized by attorneys and immigrant rights groups for their poor conditions. Last December, around 400 women and children were released from family detention facilities in Texas after a judge denied the centers the necessary state licenses for detaining kids. Separating moms from their children could get around the problem of holding kids in substandard centers and needing to build more facilities to accommodate families.

In an interview with CNN’s Wolf Blitzer on March 7, DHS Secretary Kelly confirmed the Reuters report: “Yes, I am considering it, in order to deter more movement along this terribly dangerous network.” Kelly later said he thought parents who brought their children across the border are manipulating the system “because they know up till this point we will keep the families together.” “As this word gets out that we’re considering it and maybe we’ll implement it,” he said, “that will add again to this factor of people not coming.”

4. Making asylum screenings more difficult

Refugees who do manage to meet with an asylum officer may now face a tougher screening than they would have in the recent past. In mid-February, DHS updated the lesson plans it uses to train asylum officers on handling “credible-fear” interviews. According to the Tahirih Justice Center, a nonprofit group that provides legal services for women and girls fleeing gender-based violence, the changes include increasing the burden of proof on asylum seekers at a very early stage in the process—when many are particularly vulnerable and often do not have a lawyer.

The lesson plans have also dropped language emphasizing the low threshold for passing the credible-fear interview. For example, earlier lesson plans included passages reminding officers that when there was a reasonable doubt regarding an asylum seeker’s fear of persecution in her home country, “the applicant likely merits” a full hearing before a judge. “The credible-fear process was always intended to be an intentionally low threshold,” the WRC’s Obser says. “It was not meant to be a full-blown asylum hearing.”

5. Detaining asylum seekers awaiting their day in court

The feds used to have several options for dealing with asylum seekers who have passed their credible-fear interviews. They could release them on a written promise to appear at an immigration hearing, they could let them go with an ankle monitor, or they could detain them. Over the last several years, many immigrant families with pending asylum claims were set free, a policy that immigration hardliners have derisively called “catch and release.” During his campaign, Trump promised to end this practice, and his executive order on border security called for detaining every immigrant caught at the border.

To that end, ICE has suggested doubling the number of immigrants it can detain on a daily basis to 80,000. With detention facilities already near capacity, that could mean working with local governments to reopen empty state prisons or even renting beds in local jails. Meanwhile, a February memo from DHS Secretary Kelly says that asylum seekers may be released if they pass their credible-fear interviews and prove to ICE who they are and that they’re not a security risk. If not, they face prolonged detention—and, because it’s especially hard for them to find lawyers and make their cases while held by ICE, likely deportation.

6. Getting tough on unaccompanied kids

According to Kelly’s memo, some 155,000 unaccompanied child migrants have been apprehended at the border in the past three years. Those kids pass through shelters run by the Department of Health and Human Services and are often then reunited with relatives living in the United States. Kelly wrote that 60 percent of them have been placed in the care of one or more undocumented parents. The memo suggests that the government will be taking a closer look at these cases and reclassifying unaccompanied kids as simply undocumented immigrants—and deporting them.

KIND’s Podkul argues this will simply keep parents from collecting their children from government shelters, which could put kids in precarious situations—and could keep the federal government from being able to know where kids are and make sure they’re living in safe environments. “You’re either going to have kids lingering in detention,” she says, “or you’re going to have a stranger or a family friend or a neighbor who comes forward to get the kid.”

7. Charging parents with human trafficking

Many of the unaccompanied children reuniting with their families in the United States arrive at the border with the help of smugglers hired by their parents or relatives. “Regardless of the desires for family reunion, or conditions in other countries,” Kelly wrote in his memo, “the smuggling or trafficking of alien children is intolerable.” To that end, Kelly states that anyone who contributes “directly or indirectly” to the smuggling of a child could face deportation or criminal prosecution.

To advocates, this move seems especially punitive. “No person is more concerned about the safety of a child than a parent,” Podkul says. “They’re doing the only thing they know how to do to save their child’s life. By going after them, that’s not going to stop any sort of problem. It’s not going to stop the problem in the home country. It’s not going to stop kids from needing to flee.”

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Inside Trump’s Border Crackdown on Women and Kids

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America Has a Lot to Learn From This Muslim Fashion Blogger

by Glinda6576 Posted on February 5, 2017

Mother Jones

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In sixth grade, Hoda Katebi decided she would start wearing the hijab.

It was a bold move. She’s American born, but her parents immigrated from Iran. Theirs was one of few minority families—let alone Iranian ones—in her small Oklahoma town. The September 11 attacks were only about five years in the rearview mirror, and her classmates were hitting the age when kids become more aware of the world—and of their parents’ political viewpoints, which in this case leaned pretty conservative.

To some of her schoolmates, Islam seemed scary, freakish. The hijab made Katebi a target for taunts, and worse. One middle-school student, after calling her “terrorist” all day at school, punched her in the face. A few years later, in high school, a peer pulled off her hijab, demanding to see her hair. Katebi never reported the assaults. She was convinced her teachers would look the other way rather than try and defend her. It was up to her to convince people around her that she was not to be feared, and that she largely shared their values.

In the wake of President Donald Trump’s executive order banning immigration from seven majority-Muslim countries (including Iran), Katebi, now 22, finds herself in the position of having to explain her culture to people all over again. Indeed, it’s part of her job. A year out of college, she heads up communications for the Chicago branch of the Council on American-Islamic Relations, which says Trump’s immigration order targets Muslims directly—despite the administration’s claims to the contrary. CAIR is working with lawyers and other civil rights organizations to help people who have been detained in airports or stranded overseas as a result of the ban.

But Katebi was working to bridge the gap between America and the Middle East long before CAIR hired her. In her hometown, people were always looking to her to speak on behalf of all Middle Easterners—on everything from the history of Islam to the Israel-Palestine conflict. Their questions compelled her to study up on Muslim history and culture so she could push back against her peers’ misguided views.

Continuing discrimination led her to develop a “don’t give a shit attitude” that later gave way to a healthier outlet for her frustrations. Recognizing the power of the hijab to dictate how people viewed her, Katebi became interested in the use of clothing as a political statement. So, the summer after her freshman year at the University of Chicago, she launched a fashion blog, calling it JooJoo Azad (“Free Bird” in Farsi). “Fashion is inherently and deeply political,” Katebi writes, and not many Americans understand just how complex and diverse fashion for Muslim women can be. She told me she wanted to “yell in a productive way” and tackle the nexus of clothing, Islam, and feminism—a topic she now lectures on.

From Tehran Streetstyle Hoda Katebi

For her undergraduate thesis, Katebi chose Iran’s underground fashion scene, and she traveled to Tehran during the summer of 2015 to research the topic. The Iranian designers she met were trending toward traditional motifs and designs, but also creating pieces that technically violated the country’s Islamic dress code. Iranian law requires women to cover their heads and to dress modestly, usually keeping their torsos, waist area, and a good part of their legs covered with large, loose garments. Rules on acceptable colors fluctuate depending on who is in charge, as does the zeal of the Gashte Ershad (morality police), who enforce the rules. Punishments can range from a warning or a ticket to arrest, in extreme cases.

During her trip, as many Iranian women do, Katebi tested the limits of the dress codes. She found that the Gashte Ershad rarely enforced it, and that violations are common. One officer saw her wearing a tight crop-top shirt that didn’t cover her waist area. He simply yelled that she should “cover up,” and then he drove away, she recalls.

Alongside her thesis work, Katebi collected material for her 2016 book, Tehran Streetstyle. The designers wanted Katebi to expose their art to the rest of the world, and her Western blog audience was clamoring for a window into Iranian fashion. The result was a collection of images of a sort Americans seldom see—Iranian women clad in vibrant colors, with creative designs and trendy accessories. While Katebi and most of the designers she spoke with dislike the dress codes, their feelings are complicated. “There’s a level of resisting the hijab law, but also wanting to resist Western cultural hegemony that exists globally,” Katebi explains.

From Tehran Streetstyle. Hoda Katebi

At a time when the US government is projecting a sinister view of Islam to the public, Katebi’s work pushes in the opposite direction, helping open-minded Americans appreciate the nuances and diversity in Muslim culture. It’s been a constant tug of war, and the fact that few Americans even bother to learn the basics of Islam before forming an opinion has not made her job easier.

In fact, the rhetoric of the 2016 campaign and beyond, combined with the recent attacks in Europe and the United States, have contributed to a notable resurgence of Islamophobia here. Hate crimes against Muslims spiked 67 percent in 2015, according to FBI data, and there have been many troubling incidents since the election. In late January, as the White House issued its immigration ban, a mosque in Texas was burned down and a gunman attacked the Quebec Islamic Cultural Center in Canada, leaving six people dead and five hospitalized. President Trump, Katebi says, continues to use the same divisive rhetoric against Muslims in the name of national security that leaders employed after 9/11. “Muslims are just recovering,” she says, “from the effects of what happened in 2002.”

At least 18 people were detained at O’Hare International Airport thanks to Trump’s executive order. Protesters—including Katebi and others from CAIR—flooded the airport with signs and chants demanding that detainees be allowed access to lawyers and that they be admitted into the country. A judge issued a stay to Trump’s order, but that injunction is temporary. Organizers are still scrambling to protect people left in limbo, including a friend of Katebi’s, a Stanford doctoral student who had to cancel his flight to the United States and now can’t get back to school. For Katebi, the past week has been a nonstop work frenzy. As she put it, she’s been running on “water and Starbursts.”

While she’s encouraged by the crowds showing up at the airport to protest Trump’s immigration move, Katebi has taken to her blog to challenge misconceptions even among Americans who support Muslim immigration. Consider the viral image of the woman clad in a stars-and-stripes hijab. The artwork was intended as a show of solidarity, but Katebi pointed out that it was the work of a white (non-Muslim) man—Shepard Fairey, the same artist who did the Barack Obama “Hope” poster—and noted that the woman who modeled for the poster does not normally wear the hijab.

She also made the point that, given the fraught history of American military actions in the Middle East, the image sends a decidedly mixed message. “I understand the good intentions,” Katebi wrote, “but my liberation will not come from framing my body with a flag that has flown every time my people have fallen. And I hope yours will not either.”

As the Trump regime ramps up, Katebi is dreading the prospect of having to play teacher all over again. “Educating people on the very basics, like ‘Islam is a religion of peace; this is what I believe,’ it’s incredibly emotionally taxing!” she says. “Having to deal with all of that and be able to respond in a very polite, educational manner is harder than people think.”

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America Has a Lot to Learn From This Muslim Fashion Blogger

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