Federal Courts

Supreme Court vacancy

President Trump is expected to announce his nominee to fill Justice Kennedy’s seat on the US Supreme Court this coming Monday, July 9, at 8 pm EST. Current circuit court judges Amy Barrett, Brett Kavanaugh, and Raymond Kethledge are believed to be the top three contenders for the nomination. Notably, all three potential nominees were hand-selected by the ultra-conservative Heritage Foundation and Federalist Society, and have satisfied Trump’s litmus tests as individuals who, if confirmed, would “automatically” gut Roe v. Wade and work against access to health care by undermining the Affordable Care Act. Visit NCJW’s #SaveSCOTUS page to learn more and find out how to take action.

#CourtsMatter to health care

The US District Court for the District of Columbia struck down a new Medicaid plan in Kentucky that would impose work requirements on recipients because it did not include an estimate of how many residents would lose access to Medicaid. The plan, Kentucky HEALTH, had been previously approved by the Trump Administration and was defended by the Secretary of Health and Human Services. It is being sent back to the Department of Health and Human Services for further review.

#CourtsMatter to immigration

In Damus v. Nielsen, the US District Court for the District of Columbia blocked the Trump Administration from arbitrarily and indefinitely jailing those seeking asylum. This ruling reinforces existing US immigration policy that stipulates humanitarian parole be granted to asylum seekers while they await their immigration proceedings. The lawsuit, filed by the ACLU, targets five US Immigration and Customs Enforcement field offices where more than 1,000 asylum seekers are being denied parole.

#CourtsMatter to education

On June 29, the US District Court for the Eastern District of Michigan dismissed a lawsuit brought against the state fighting for the right to literacy. The judge stated that while literacy is important, and that low literacy levels can negatively affect both children and society, the US Constitution does not guarantee a fundamental right to literacy.

Civil Rights

Departments of Education and Justice reverse civil rights regulations and guidance

Under President Obama, the Department of Education finalized a rule aimed at combating an excessive numbers of students of color in special education classes. The rule was supposed to go into effect on July 1, 2018, but on June 29, Education Secretary Betsy DeVos officially delayed its implementation until July 1, 2020. The rule is important to protect students of color, who are disproportionately funneled into special education classes due to a patchwork of state laws. NCJW supported the rule when it was originally finalized, and opposes this unnecessary delay.

On July 3, Ken Marcus, the Assistant Secretary for Civil Rights at the Department of Education (whom NCJW opposed), made his first official action by rescinding Obama-era guidance from the Departments of Education and Justice that provided a roadmap to implement voluntary diversity and integration programs consistent with US Supreme Court holdings on race-conscious admissions. The guidance impacts both K-12 schools and institutions of higher education. Rescinding the guidance doesn’t change the law, but will make it more difficult for schools to comply with the law while promoting racial diversity. Including race-conscious admissions guidance, Attorney General Sessions rescinded a total of 24 guidance documents on a variety of policies including juvenile justice, discrimination, and the rights of English learners.

Immigration and Refugees

Changing interpretation of Flores?

Last week, Assistant Principal Deputy Assistant Attorney General Chad Readler — also a Trump judicial nominee for the 6th Circuit Court of Appeals and opposed by NCJW — formally requested changes to the rules governing child detention, known as the Flores settlement, in order to hold children in detention indefinitely. However, just days later, Readler instead argued that a separate injunction issued last week by a federal judge in San Diego barring family separations effectively negates Flores. Readler also asked the court to allow families to be held together in unlicensed facilities (contrary to another Flores requirement). The changing attitudes toward Flores demonstrates the administration’s drive to hold children and families in detention, regardless of facility conditions.

As the Flores debate continues, the federal government is struggling to reunite more than 4000 children with their families by the July 6 and July 26 deadlines. On July 5, NBC News reported a leaked government form that gives parents separated from their children only two options: leaving the country alone or leaving the country with their children. The document does not even allow for reunification while a person’s asylum claim is being processed.

Leaked rule would effectively bar most asylum seekers

On June 29, Vox published an article about a leaked Department of Justice regulation that would make seeking asylum nearly impossible for Central Americans. The draft, which could change before it is finalized, would bar anyone from getting asylum if they’d been convicted of illegal entry or illegal reentry — meaning those who were apprehended and prosecuted at the US border before seeking asylum would be denied. The rule would also codify Attorney General Sessions’ recent limitations on asylum for those fleeing domestic or gang violence. Finally, the rule would deny asylum to anyone who spent more than two weeks in another country en route to the US without seeking asylum there, or who had traveled through more than one country on the way to the US — i.e. most asylum seekers from Central America. NCJW is closely monitoring this potential rule and will work to oppose when it is published.

Temporary protected status extended for Yemen

On July 5, Homeland Security Secretary Nielsen announced an 18-month extension — but not redesignation — of Temporary Protected Status (TPS) for Yemen. The means the approximately 1,250 Yemeni TPS beneficiaries have legal status until March 2020, when the Department of Homeland Security (DHS) will once again decide to redesignate, extend, or cancel TPS for Yemen. A similar decision will need to be made for Somalia by July 19, 2018. In the past few months, DHS has terminated TPS protections for more than 300,000 individuals from Sudan, Nicaragua, Liberia, Nepal, Haiti, El Salvador, and Honduras, as well as refused to redesignate TPS for Syria.

Human Needs

Labor-HHS passes in Senate committee

On June 28, the Senate Appropriations Committee passed (30-1) its bipartisan FY’19 Labor, Health and Human Services, and Education appropriation bill (Labor-HHS) — the largest non-defense related spending bill. The $179.3 billion measure would increase funding over FY’18 levels, with the National Institutes of Health receiving the bulk of it for addressing opioid addiction and Head Start. In addition to funding for Pell grants and low-income energy assistance, the measure also includes $27 million for human trafficking survivors. While the Senate bill could include higher funding given the importance and size of the departments, it is not as contentious as the House version, which contains partisan policy changes and would defund the Affordable Care Act. The House Appropriations Committee has yet to take up its version of the bill.

Sign On Letters

• On June 6, NCJW sent comments to the the Bureau of Alcohol, Tobacco, Firearms, and Explosives to finalize its proposed rule clarifying that bump fire stocks, along with other “conversion devices” that enable semiautomatic weapons to mimic automatic fire, qualify as “machineguns” under the National Firearms Act and are generally illegal to possess.
• On June 19, 39 organizations including NCJW joined a letter organized by Human Rights First expressing concerns about the nomination of Ronald Mortensen to lead the Bureau of Population, Refugees, and Migration at the State Department.
• On June 27, NCJW joined a letter to Senate Democratic Leadership on Justice Kennedy’s retirement.
• On July 5, NCJW submitted a comment in response to a notice of proposed rulemaking urging the Department of Commerce to remove the citizenship question from the 2020 Census.