After 36 hours of chaos, a spot of calm in Boston

Self-care, with yes, a dose of privilege, demanded stepping away from the Internet on Sunday, and the continued infuriating and illegal actions of our temper-tantrum-tossing tangerine toddler. It was an exhausting 48 hours, and we just needed to spend time together – privilege, yes, because we can do that, but don’t mistake it, either, for the root fear driving it: the anger ifrit has shown that with a stroke of a pen, everything my husband and I know about our life could be overturned, and neither of us take that lightly. Neither of us take the hatred and threats to immigrants lightly, even while most people forget Nick is an immigrant – or try to excuse it with “oh but he’s Australian” when they mean “oh he’s white.”

That meant catching up some on the news this morning – while fighting off whatever the latest cold going around is, because apparently a university professor picks up about as many bugs as a preschool teacher. The news tells me that Boston continues to be awesome, the toddler’s team wouldn’t understand consistency if it bit them on the ass, and that the nation is still in chaos, but still standing (tho maybe listing heavily to one side).

Some lawyers are advising green card holders to fly through Logan International, in Boston, because of a Massachusetts judge’s seven-day restraining order on the executive action.

The ruling, which goes further than similar ones in New York and Virginia, prevents both the detention or removal of approved refugees and visa or green card holders from the seven affected nations.

Additionally, this order required Customs and Border Protection officials to notify international airlines that valid VISA holders (green cards, approved refugees, or valid VISA holders of any stripe) will not be detained or returned solely based on Trump’s orders, which in effect means that airlines need to let folks on the planes to get to Boston, which was still a major impedement with the New York and Virginia rulings.

Of course, the temper tantrum in the White House is growing – and they can’t manage to stay on message. I can’t imagine why folks are confused about what the fuck is going on at any given time, since not even the White House appears to know if the ruling applies to green card holders, with them saying yes on Saturday and no and yes on Sunday. Oh, okay then. THAT clears things up.

Based on the chaos, all I can say is this: if you are outside the country right now, and have a valid VISA or green card, make sure you are carrying copies of all current federal rulings before you head to your airport to fly back to the USA; try to fly in to an airport that is following the current stay on the executive action, and consider making that airport Logan International; be sure you’ve tagged someone in the USA as your travel buddy, who will keep an eye on litigation and court stays while you are in the air and out of touch, and who can contact lawyers on your behalf if there are problems when you land. Be sure your phone has charge, and that you let your travel buddy know when you are on the ground, before you head into customs and immigration. Make sure they have a plan – they know what immigration lawyer to contact if you don’t appear after a decided-upon period of time. (I’d go for three hours, but that’s just me and based on the reports people have given of “enhanced security screening.”) If there is a problem, demand to see an immigration judge. Do not sign any paperwork. Do not give up your passport, your green card, or any other paperwork if they ask you to relinquish it. Know who your lawyer is, be polite, and repetitive in asking to see them and the judge, should it come down to it. Hopefully it doesn’t, and you’re quickly through the airport and back where you belong.

And if you have a few minutes and you’re not involved directly in any of this, and have the luxury of being on the sidelines, contact your representatives to tell them how reprehensible this executive action is – how inhumane, how it’s a repetition of the horrors of what America did to Jewish folks in World War II, and how America should be better than the executive order implies. And maybe send a note of thanks to federal judge Allison Dale Burroughs, who wasn’t afraid to go where other judges didn’t, and made sure people had an avenue to get home.

VISA Interview Waiver Programs, VISA Waiver Programs, INA Sec 222, What?

So hey, how about these last 7 days, eh? Have we figured out how to stop this ride? No? Not yet? Cuz we really, really need to – our tangerine toddler can’t write worth a damn, and it’s starting to cause some problems.

Buried in the orange anger ifrit’s latest assault on civil rights and human decency is a section that boils down to a lot of head-scratching and confusion. Section 8 of the vile executive action that violates US immigration laws while consigning Syrian refugees to death reads:

Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.

Waitwhat – suspend, immediately, the Visa Waiver Program? The VWP is an agreement between the US and 35-odd other countries that lets their citizens travel to the USA for 90 days or less without first securing a VISA, provided they meet a list of requirements. This facilitates travel and tourism, minimizes US costs in other countries, and is generally a nice thing – especially for those of us who have ex-pat spouses and family we adore in other countries.

Suspending this would be catastrophic, and Section 8 seems pretty clear – all nonimmigrants must undergo an in-person interview, pursuant to section 222 of the INA, 8 USC 1222, unless that’s waived by something like the VISA Waiver Program. The language seems pretty clear that “all individuals seeking a nonimmigrant visa undergo an in-person interview” – those statutory exceptions are listed in section 222 of the INA, but are your basic consular/diplomatic type things. Certainly, they’re not “travel tourists!”

Yeah, I know. Click to embiggen.

Except, there’s also an Interview Waiver Program, which has been completely scrubbed from the main State Department website, but you can still see (as of 3am Saturday the 28th of January – oh hey, gong xi fa cai) on the State Department’s Indonesian website. They talk about an interview waiver program, which is essentially the VISA Waiver Program, but for countries who are not officially designated VWP countries:

Many Indonesians who wish to renew their visas may qualify for the interview waiver program which allows for visa renewal without an interview. If qualified, applicants only need to pay the visa application fee, fill out the visa application form, print out a Drop-Box Confirmation Letter, and drop off documents at the RPX Document Drop-off Location any weekday between 10am and 3pm. Qualified applicants do not need to appear at the U.S. Embassy in Jakarta or the U.S. Consulate General in Surabaya for an interview.

Okay, that maybe clears – hang on. The “additional resources” page (see picture) is just redirecting folks to the VWP page. So basically, the IWP is just the VWP (and note that if you can find any US government web page that talks about an interview waiver program separate from the VISA Waiver Program, they refer to it as a IWP; the “VISA” bit isn’t included, perhaps in an effort to eliminate the confusion going on right now.)

Australian and New Zealand newspapers are running with two stories: that this does and does not affect their citizens (as both countries are designated VWP participants). So what does this mean? Does the VWP still exist? Is this VISA Interview Waiver Program different?

I think the answer to all is “…who knows.”

Given that search results still pull up an Interview Waiver Program, and there are still results live on country-specific State Department websites, it seems safe to say that, cloudy and awful language aside, the intent of Section 8 of the horrid human rights fail of an executive order is attempting to stop interview-free travel for trustworthy citizens of non-VWP designated countries. But as we all know, the problem with “intent” is that you can have Intent A and still end up with Effect B; in this instance, I see nothing in Section 8 that says by “ensuring compliance with INA,” they mean “ensuring compliance by nonimmigrants from all countries except VWP participants.” Do you?

Now, add to that and keep in mind that admission into the USA – even if you’re from a VWP-participating country – is completely up to the customs and immigration agent you’re talking to, and their understanding of the law, and you can see why people are freaking out. The executive order is unclear, appears to be smooshing together two separate VISA-waiving programs, and reiterates that all nonimmigrants must have valid VISAs to enter the USA.

So what’s going to happen when someone tries to enter the US with a VWP, now?

I’d like to say business as usual, they’ll be admitted, no problems – but I can’t. All I can say is, if you’re from a VWP-participating country and have plans to visit America, call your consular office first thing Monday morning and see what they say. Follow their advice, ask if they have an updates email service, and check back with them frequently. Make sure your documents are all on the up-and-up for travel, be polite to agents you’re dealing with when entering the USA, and hope that clarification comes sooner rather than later (or that the entire thing is just dropped – the order itself is illegal seven ways to Sunday, not that that’s stopped our tiny-handed kleptocrat).

With thanks to Jeremy Youde for pointing out the second SBS tourism article and helping me think through the issue.

the worst kind of “pussy policing” from the Washington Post

Ah, women. You know how it is: if we’d just tone it down a little, be more respectful, less emotional, less colorful, less pink, then men would take us seriously. If we just didn’t wear that short skirt, if we wore that longer skirt – but not that long a skirt – we wouldn’t be raped. If we just wore enough makeup to not be wearing makeup, if we just were clear about our interests in guys but not so clear to be sluts…

If we just lived under a constant set of rules that are ever-shifting the target, but boil down to the same thing: if we just twisted ourselves into the way men see other men, they’d treat us with respect.

Washington Post columnist Petula Dvorak is the latest accuser in this salvo of women-not-doing-it-right: c’mon, ladies, why are you wearing pink cat ear hats to a march? That’s so frivolous! How can you expect anyone to take you seriously like that! You want to be taken seriously, don’t you?

Dvorak’s afraid that pink pussy ears are too fun, too distracting – after all, media took a photo, once, of a mohawk’d family at a climate change protest, and now that’s what we all thing of when we think of climate change. What hockey sticks? Michael who?1

But this is the norm, right? Dvorak’s just reiterating a constant social message about what women need to do and take care of. We have to be careful that women’s bodies and what they do with those bodies don’t distract men from The Important Things. Women should be careful that their actions can’t be misinterpreted, at any time; we wouldn’t want a photographer taking a picture of a few women wearing pink pussy ear hats and think this was just some kind of fun get-together for knitting enthusiasts!

It’s not too many steps over from making sure you dress the right way so men don’t misunderstand your intent in a bar, is it?

Because ultimately, the messaging is being placed on women. It’s not up to men or journalists or historians to make sure they understand the message; nope, women must properly convey their intent and any error in inference is their fault, and no one else.

Hedwig Reicher as Columbia, and other suffrage pageant participants. Guess dressing up is okay if it’s called a pageant? (Picture via Library of Congress.)

Possibly the funniest thing about the whole piece, in that sort of “historical revisionism is funny when people try to use the past to guilt us in the present” kind of way, is Dvorak’s insistence that the suffragettes protested properly:

Protests are successful and effective when they have a clear message, a clear mission. That’s part of what made the 1913 march by the suffragettes seeking the right to vote so memorable

Yes. Those suffragettes. They never had any fun in their rallies.

They never did anything unseemly.

They were never, ack, violent.

Why, they just nicely asked for the right to vote, and since they were so rational and level-headed about it, they just got it! Isn’t that a nice historical fiction we can all learn from?

NNSA and the Art of Reading Political Spin

Gizmodo’s got an alarming story up, at least if you consider unattended nuclear stockpiles and a’splodey bomb photos alarming:

According to an official within the Department of Energy, this past Friday, the President-elect’s team instructed the head of the National Nuclear Security Administration and his deputy to clean out their desks when Trump takes office on January 20th.

Oh. Well. I mean, it’s just the National Nuclear Security Administration. Nothing to see here, they don’t do anything important like maintain national security through the military application of nuclear science. They’re not responsible for the safety, security, and effectiveness of the U.S. nuclear weapons stockpile without nuclear explosive testing. They don’t work to reduce the global danger from weapons of mass destruction. They definitely don’t provide the U.S. Navy with safe and effective nuclear propulsion or respond to nuclear and radiological emergencies in the U.S. and abroad.

Nope.

(Hint: yes, they do all of that.)

Thankfully, Defense One has stepped up and gotten someone from the NNSA to deny that Trump’s team has asked both NNSA director Frank Klotz and his deputy, Madelyn Creedon, to step down on Jan 20! Why, not at all. In fact, the official assures us that

There have been no discussions between the president-elect’s transition team and any of NNSA’s political appointees on extending their public service past Jan. 20.

…oh.

See, here’s the thing. It might sound, on the surface, like Gizmodo and Defense One are saying two separate things, but they’re not. Oh sure, it’s possible that there were no literal marching orders given to Klotz, Creedon, and other appointed staff… but it’s just as likely someone did clarify that they needed to have their desks cleared and goodbyes said by noon, January 20th. See, Klotz, Creedon, and about 3,000 other government employees are appointed. They don’t have to be dismissed; by tradition (and in some cases law), all non-termed political appointees would have submitted their resignations some time after the election, effective immediately on swearing in of a new president.2 Now traditionally, what happens is that the sitting president tells all agencies that there is a hiring freeze and gives all appointees their resignation deadline; Obama’s was December 7th. The incoming presidential team then offers extensions to the majority of appointees, because it takes time to appoint and confirm some 850 high level/cabinet members of the government (not to mention the other 2,000+ lower level appointees), and it’s nice to have people around to, you know, run things.

That didn’t happen this time.

Gizmodo is taking it as active malice: Trump’s seeking out and firing people. The NNSA is downplaying this: no, no, they weren’t fired or removed…. it’s just that their service ends January 20th and unlike every other time ever, it’s not being extended, nor is the service of all the appointed folks under them!

It’s the same story, different spin, same result. Functionally speaking, right now, as of noon January 20th, the NNSA won’t have appointed leadership – which means that, as of noon January 20th, NNSA will be hamstrung. As Gizmodo explains, the career civil servants and scientists (that is, people hired rather than appointed) will continue doing their job, but they won’t have an advocate to secure a budget from Congress and they won’t be able to tackle any new directives because:

the legislation authorizing the NNSA specifically prohibits non-NNSA officials from managing NNSA employees—agency staffers are only allowed to take orders from Klotz and Creedon or their (nonexistent) replacements.

Given Trump’s bombastic and erratic statements regarding the US nuclear arsenal, this situation should concern everyone. It is not, as is so commonly said right now, normal.

Hobby Lobby, Contraception, & the Supreme Court Ruling

The Roberts CourtAs expected, the last case ruled on before the Supreme Court of the United States adjourned until October was the Hobby Lobby/Conestoga case. For those unaware, this case is based on the Affordable Care Act’s contraception mandate, classifying contraceptives as preventive healthcare required under all insurance plans without a co-pay. Hobby Lobby and Conestoga Wood both objected to this, saying that covering some forms of birth control, like the IUD/IUS or Plan B, violated their religious beliefs by requiring them to fund abortive medications.We’re just going to sigh and ignore proper science right now, okay? Because otherwise we’re going to go nowhere but to the nearest hard surface. With our heads.

Unfortunately, SCOTUS ruled for Hobby Lobby/Conestoga, agreeing that the contraception mandate of the Affordable Care Act violates the Religious Freedom Restoration Act.

Now, before we get into the particulars,I am not a lawyer; let’s just get that out of the way up front. let’s go over the generals:

  • NO, SCOTUS did not overturn the contraception mandate.
  • NO, SCOTUS did not rule companies do not have to provide contraception to employees.

This is a limited ruling that does not affect publicly-held corporations, or privately or closely-held corporations that do not also have sincere religious beliefs.

So what did happen? SCOTUS ruled that closely-held corporations owned by people with sincere religious beliefs do not have to provide contraception coverage that violates those sincerely-held religious beliefs.

It’s important to note that this is a very, very narrow ruling. In the majority rule, Justice Alito noted that this particular ruling would not give companies room to discriminate; for example, a closely-held corporation owned by folks whose religion finds gay people an abomination would not be allowed to freely discriminate against gay folks. This ruling does not overturn federal protections for suspect or quasi-suspect classes.

…your eyes just glazed over, didn’t they? At the end of this post, you’ll find a treatise on legal vocabulary that might help the above make sense. For now, let me put it into English for you: highly religious families that own large businesses that employ lots of people but don’t share that stock love around are allowed to deny female employees certain types of contraception based on scientifically incorrect notions of what an abortion is, but that’s all they’re allowed to do.

In line with the Citizen’s United ruling that says corporations (are people too) have free speech, this ruling says that a small, small group of companies in the United States are protected under the RFRA, because they have a religion.

In the run-up to this decision, I’ve quipped (repeatedly) that I’ve never seen a corporation in a church before. SCOTUS would reply: when that company is held by five or fewer related family members with shared sincere religious beliefs, if you’ve gone to church with that family, you’ve seen that corporation in church.

In other words, there is no firewall between the religious beliefs of a family and the company that the family runs. (This also would apply to a small group of people who share a sincere religious belief but are not related.)

The reason for this is that the ACA mandate fails the Sherbert Test. Justice Kennedy said that he believed that the option for religiously-affiliated organizations, such as Catholic hospitals, to opt-out of contraception coverage meant that the government could not prove that requiring Hobby Lobby and Conestoga Wood (or other closely-held corporations with sincere religious beliefs) to include contraception coverage in the health policies they contribute to was the least restrictive or burdensome option. In the case of the religiously-affiliated non-profit organizations, women are able to receive contraceptive coverage through separate health policies provided by the federal government at no charge; Justice Kennedy clearly feels that this will be extended to women who work at closely-held corporations with sincere religious beliefs against some contraceptives.

Of course, as SCOTUSblog noted, there are a couple of issues here. The bigger one is whether or not the Department of Health and Human Services has the authority to extend the non-profit contraception exemption to closely-held corporations; I expect we’ll see the Obama Administration clarify this quickly (and most people seem to think that HHS has the authority to do this, including SCOTUS).

The smaller issue is an interesting one. There are some non-profit groups that have argued that even signing a certificate that says they object to providing contraception coverage for their female employees is a violation of the RFRA. Today’s Hobby Lobby/Conestoga ruling seems to imply that SCOTUS does not find the process of certifying beliefs an undue burden under RFRA, which could effectively shut down some 20-odd cases around the country.Emily Bazelon has more about these cases over at Slate.

So in sum, closely-held corporations can express religion and are protected under RFRA as long as it’s a sincerely-held religious belief, but the expression of their religious beliefs does not go so far as to allow discrimination; women employed by these companies should still be able to receive free contraceptive coverage from HHS, like women who work for religious non-profits do; and signing a piece of paper to indicate that your company’s sincerely held religious beliefs is probably not going to be viewed as an undue burden by SCOTUS.

It’s an interesting ruling, and one that I suspect isn’t going to make too many people happy, even while people will incorrectly make absurd statements on what the ruling means.

My personal take is a bit more esoteric: I actually think this Supreme Court is laying the groundwork for a robust federalized healthcare for everyone; clearly, they have established that it is appropriate for the government to offer and require insurance. This shifts another bit of the burden away from companies and towards the federal government, and I suspect that these tiny shifts are what it’s going to take to end up in a system of basic healthcare services provided by the government, with the option for additional insurance offered by companies as hiring incentives or purchased on the market for those interested. The question then becomes: is this intentional by Justice Alito and the other conservatives judges, or is this just happy coincidence as they strive to protect the rights of corporations to be people?

 


Let’s talk about vocabulary, everyone’s favourite subject! In specific, let’s get some definitions for SCOTUS vocabulary and legal language out and down on paper, so that we’re all on the same page.Remember, I am not a lawyer.

Closely-held corporation
A closely-held corporation is a private company owned, directly or indirectly, by a small group of people; the majority of the shares are held by five or fewer people.So sayeth the IRS. These are not publicly traded companies; if a shareholder wants to sell, it must be to an existing shareholder.

Religious Freedom Restoration Act
The RFRA is a 1993 law, signed by Bill Clinton, that prevents laws that substantially burden a person’s free exercise of religion. RFRA applies to the federal government, not state governments. As ACA is also a federal mandate, it is subject to scrutiny under RFRA. The law reinstates the Sherbert Test to see if an individual’s right to free expression of religion has been violated by the government, and mandates that any challenge involving the Free Exercise Clause of the First Amendment be subject to strict scrutiny.

Sherbert Test
This is the test used to determine whether or not the government has violated free expression of religion. For an individual, (and remember, corporations are people, too!), the court must determine:

  • whether the person has a claim involving a sincere religious belief, and
  • whether the government action is a substantial burden on the person’s ability to act on that belief.

If these two elements can be established, the government must then prove that it:

  • is acting in furtherance of a “compelling state interest,” and
  • it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

Strict Scrutiny
This is the most stringent standard of judicial review available, and is generally invoked in situations that either involve suspect classifications or constitutional challenges.

Suspect and Quasi-Suspect Classification
A suspect classification is any group of people that meet criteria suggesting they have been or will be the subject of discrimination. This criteria includes a history of discrimination, hostility, prejudice, and stigma against the group in question, which can be based on stereotypes; immutable or highly visible traits; little to no political power; their distinguishing features do not render the group unable to meaningfully contribute to society.

The Supreme Court recognizes race, national origin, religion and alienage (not being citizen of the United States) as suspect classes. Gender, parentage (legitimacy), and sexual orientation are recognized as quasi-suspect classes.

Sincere religious beliefs
First, let’s be clear: a religious belief does not necessarily mean a belief in God(s). In Welsh v. United State, SCOTUS ruled that “the definition of “religion” is not dependent on a belief in a “Supreme Being.” A person’s beliefs may be deemed “religious beliefs” if those beliefs occupy in the life of that individual a place parallel to that of God in traditional religions.”All referenced court cases in this section are from the document “Selected Cases on Religious Discrimination” prepared by the Office of Legal Counsel for the US EEOC.

In Brown v. Pena, SCOTUS cited three things to determine whether or not a belief is a religious belief:

  1. whether the belief is based on a theory of “man’s nature or his place in the Universe;”
  2. which is not merely a personal preference but has an institutional quality about it; and
  3. which is sincere.

Unique moral preferences thus are not also religious beliefs. (So, for example, being a vegan without also being a member of a religious order whose institutional and accepted religious texts required a vegan diet, would not be a religious belief.)

And finally, how do you determine if said religious belief is sincere? There are multiple cases that discuss what a sincere belief isEEOC. v. Ilona of Hungary, Inc; EEOC v. Union Independiete De La Autoridad De Acueductos y Alcantarillados De Puerto Rico; Hussein v. Waldorf-Astoria; Bailey v. Associated Press; etc. and determined that elements of sincerity for the purpose of religious belief includes following the rules and restrictions of the religion in question, attendance to appropriate worship services, acknowledgment of religious holidays, association with other people of the same religion, and so on.