The Case for Protecting Undocumented Immigrants

By: Iris Lin

Edited By: Arianna Staton and Maayan Abouzaglo

Although immigration to the U.S. has always been a hotly contested policy area, recent debate has centered around “undocumented” immigrants. There are currently around 12 million undocumented immigrants living in the U.S.[1] Many of these undocumented immigrants are known as Dreamers, who are undocumented immigrants under the age of 18 who have lived and gone to school in the U.S., and qualify for the Development, Relief, and Education for Alien Minors (DREAM) Act. The DREAM Act should have provided a pathway to legal status for young immigrants [2]. However, since the act’s first introduction in 2001, there have been many variations of the bill, but none have passed. The bill came closest to fruition in 2010 when it passed the House of Representatives but fell five votes short of the 60 necessary in the Senate [2]. Nevertheless, after Congress failed to pass the DREAM Act, the Obama administration announced the Deferred Action for Childhood Arrivals (DACA) program that would allow Dreamers to apply for work permits, obtain a Social Security Number, and pay taxes. DACA has allowed for 800,000 young undocumented people to work legally without fear of deportation. However, DACA doesn’t provide permanent legal status and must be renewed every two years. Accordingly, Congress should pass the DREAM Act and grant permanent legal status to young undocumented immigrants in order to ensure protection for those who not only make sacrifices to enter the U.S., but who also provide for the U.S. Protecting undocumented immigrants would not only benefit immigrants, but also the country as a whole as undocumented immigrants tend to work in low-wage jobs that are vital to the nation’s economic success.

On September 5, 2017, Acting Secretary of Homeland Security Elaine Duke rescinded the 2012 DACA memorandum and announced a “wind down” of DACA [2]. Since the memorandum was issued, the Trump administration has not accepted any new applications of DACA. Anyone for whom DACA would have expired as of March 6, 2018 would no longer have employment authorization. Thankfully, this attempted rescission was challenged by U.S. district courts in California.  

 In Department of Homeland Security v. Regents of the University of California, 591 U. S. 3 (2020), the Regents of the University of California sued the Department of Homeland Security (DHS) in the Northern District of California [3]. The plaintiffs argued that the rescission of DACA violated the Administrative Procedure Act (APA) because the recission did not comply with the APA’s notice-and-comment requirements. The APA governs the process by which federal agencies develop and issue regulations. The notice-and-comment requirements include publishing notices of proposed and final rulemaking and providing opportunities for the public to comment on notices of proposed rulemaking [4]. The plaintiffs also argued that the rescission deprived DACA recipients of constitutionally protected liberty and property interests without due process of law and was motivated by discriminatory intentions which violate the Equal Protection Clause of the Fourteenth Amendment. 

The government tried to dismiss the case for lack of jurisdiction, but the U.S. Court of Appeals for the Ninth Circuit found that receding DACA was not “committed to agency discretion by law” [4]. The Ninth Circuit also granted the plaintiffs a preliminary injunction that preserved DACA. They found that the plaintiffs were “likely to win on the merits of their arguments, they would suffer irreparable harm in the absence of preliminary relief, the balance of equities tips in the plaintiffs’ favor, and the injunction is in the public interest” [4]. 

Department of Homeland Security v. Regents of the University of California, 591 U. S. 3 (2020) went to the Supreme Court where the justices issued a 5-4 opinion that the Department of Homeland Security’s decision to recede DACA is reviewable and that the decision was sudden and in violation of the APA. Since DACA is not just a policy but a program for immigration relief, under the APA, its actions are subject to judicial review. Furthermore, under the APA an agency must provide “reasoned analysis” for its actions [4]. The court determined that the Department of Homeland Security failed to consider policy alternatives, and did not evaluate the consequences of eliminating the DACA Memorandum. 

In the majority opinion, Chief Justice John Roberts wrote that there was not a plausible case that the rescission was discriminatory and violated the equal protection guarantee of the Fifth Amendment. However, Justice Sonia Sotomayor dissented in this part and argued that it was premature to dismiss the respondents’ equal protection claims and that the case should remain open to allow the respondents to develop those claims. Justice Clarence Thomas also issued an opinion, concurring in part and dissenting in part. Justice Thomas agreed with the rejection of the equal protection claim but argued that because the Obama administration’s implementation of DACA was unlawful, the DHS’s decision to rescind the program was reasonable [4]. Justice Brent Kavanaugh argued that the memorandum written by DHS Secretary Nielson offered enough of a justifiable reason to rescind DACA [4].

While the ruling of the Supreme Court on Department of Homeland Security v. Regents of the University of California, 591 U. S. 3 (2020) offers a positive outlook for undocumented immigrants, it also leaves room for the possibility of recision.  The benefits of DACA remain in place, but the ruling does not completely maintain the status of DACA as the court only preserved DACA based on the DOH’s failure to comply with the proper administrative steps when rescinding DACA. It is possible that as a lame duck the Trump administration could still challenge DACA with the proper reasoning and administrative steps, and President Trump has said he will in order to keep undocumented immigrants out of the U.S. [5] The future still remains uncertain for DACA recipients, which is why the DREAM Act should be implemented as a law passed through Congress. Implementing the DREAM Act as law would provide security to thousands of undocumented workers.

In addition to individual security, granting undocumented immigrants citizenship would vastly improve our economy. Not only would legal immigrants be eligible to pay for taxes to support programs like Medicaid and Social Security, but they also account for approximately one-third of workers in certain industries [6]. Undocumented immigrants occupy a majority of low-skill labor as many natural-born citizens are not willing to take these jobs. Research finds that these immigrants would be incredibly difficult to replace. According to Harvard economist George Borjas, “immigration improves labor market efficiency,” [6] as efficiency gains due to immigration are “between $5 billion and $10 billion annually” [6]. The Center for American Progress found that if DACA is terminated, it would eliminate at least $433.4 billion from the GDP over the course of a decade [7]. Further, if the 2014 bill providing a pathway for undocumented immigrants to gain citizenship had passed, it would have helped “reduce the deficit by $197 billion, increased investment by 2%, and increased overall employment by 3.5% by the year 2023” [8]. To put it briefly, granting undocumented immigrants citizenship would outweigh the costs as these immigrants pay taxes, contribute to welfare programs, and work in lower-paying jobs, all of which help improve our economy.

Although the Supreme Court’s ruling in Department of Homeland Security v. Regents of the University of California, 591 U. S. 3 (2020) provided a small and perhaps temporary victory for DACA recipients, permanent legislation is necessary to protect undocumented immigrants. Current programs supporting undocumented immigrants are too often left at the discretion of the executive branch, forcing programs into constant uncertainty. Most young undocumented immigrants grow up in the U.S., go to school in the U.S., have friends and family in the US, and have even started their own businesses in the U.S. Undocumented immigrants deserve an efficient and guaranteed pathway to citizenship, and if Congress were to grant permanent citizenship through the DREAM Act, they would contribute to programs that help U.S. citizens and would bolster the economy even more than they already do now. 

notes:

1. “How many undocumented immigrants are in the United States and who are they?” November 12, 2019. https://www.brookings.edu/policy2020/votervital/how-many-undocumented-immigrants-are-in-the-united-states-and-who-are-they/, accessed November 1, 2020.

2. “The Dream Act, DACA, and Other Policies Designed to Protect Dreamers.” American Immigration Council, August 27, 2020, https://www.americanimmigrationcouncil.org/research/dream-act-daca-and-other-policies-designed-protect-dreamers, accessed November 1, 2020.

3. "Department of Homeland Security v. Regents of the University of California." Oyez. Accessed November 1, 2020. https://www.oyez.org/cases/2019/18-587.  

4. “Summary of the Administrative Procedure Act.” United States Environmental Agency. Accessed November 1, 2020. https://www.epa.gov/laws-regulations/summary-administrative-procedure-act#:~:text=The%20Administrative%20Procedure%20Act%20

5. “Congress should exercise its independence: Pass immigration reform and provide help for DREAMers.” Des Moines Register. July 2, 2020. https://www.desmoinesregister.com/story/opinion/editorials/2020/07/02/daca-dreamers-immigration-reform-congress-should-do-job-editorial/3278859001/, accessed November 1, 2020. 

6. Arloc Sherman, Danilo Trisi, Chad Stone, Shelby Gonzales, and Sharon Parrott, “Immigrants Contribute Greatly to U.S. Economy, Despite Administration’s ‘Public Charge’ Rule Rationale.” Center on Budget and Policy Priorities. August 15, 2019, https://www.cbpp.org/research/poverty-and-inequality/immigrants-contribute-greatly-to-us-economy-despite-administrations, accessed November 1, 2020.

7. Philip E. Wolgin, “The High Cost of Ending Deferred Action for Childhood Arrivals,” Center for American Progress, November 18, 2016. https://www.americanprogress.org/issues/immigration/news/2016/11/18/292550/the-high-cost-of-ending-deferred-action-for-childhood-arrivals/, accessed November 1, 2020.

8. “The Economic Impact of S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, Congressional Budget Office, June 2013, https://www.cbo.gov/sites/default/files/cbofiles/attachments/44346-Immigration.pdf, accessed November 1, 2020.

Bibliography:

Arloc Sherman, Danilo Trisi, Chad Stone, Shelby Gonzales, and Sharon Parrott, “Immigrants Contribute Greatly to U.S. Economy, Despite Administration’s ‘Public Charge’ Rule Rationale.” Center on Budget and Policy Priorities. August 15, 2019, https://www.cbpp.org/research/poverty-and-inequality/immigrants-contribute-greatly-to-us-economy-despite-administrations, accessed November 1, 2020.

"Department of Homeland Security v. Regents of the University of California." Oyez. Accessed November 1, 2020. https://www.oyez.org/cases/2019/18-587. 

“Congress should exercise its independence: Pass immigration reform and provide help for DREAMers.” Des Moines Register. July 2, 2020. https://www.desmoinesregister.com/story/opinion/editorials/2020/07/02/daca-dreamers-immigration-reform-congress-should-do-job-editorial/3278859001/, accessed November 1, 2020. 

“How many undocumented immigrants are in the United States and who are they?” November 12, 2019. https://www.brookings.edu/policy2020/votervital/how-many-undocumented-immigrants-are-in-the-united-states-and-who-are-they/, accessed November 1, 2020.

“Summary of the Administrative Procedure Act.” United States Environmental Agency. Accessed November 1, 2020. https://www.epa.gov/laws-regulations/summary-administrative-procedure-act#:~:text=The%20Administrative%20Procedure%20Act%20

Philip E. Wolgin, “The High Cost of Ending Deferred Action for Childhood Arrivals,” Center for American Progress, November 18, 2016. https://www.americanprogress.org/issues/immigration/news/2016/11/18/292550/the-high-cost-of-ending-deferred-action-for-childhood-arrivals/, accessed November 1, 2020.

“Summary of the Administrative Procedure Act.” United States Environmental Agency. Accessed November 1, 2020. https://www.epa.gov/laws-regulations/summary-administrative-procedure-act#:~:text=The%20Administrative%20Procedure%20Act%20

“The Economic Impact of S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, Congressional Budget Office, June 2013, https://www.cbo.gov/sites/default/files/cbofiles/attachments/44346-Immigration.pdf, accessed November 1, 2020. 

“The Dream Act, DACA, and Other Policies Designed to Protect Dreamers.” American Immigration Council, August 27, 2020, https://www.americanimmigrationcouncil.org/research/dream-act-daca-and-other-policies-designed-protect-dreamers, accessed November 1, 2020.

Our Current Electoral System Fails Domestic Violence Survivors

By: Maddie Brown

Edited by: John Perales Jr.

Survivors of domestic violence should not be forced to choose between safe housing and participating in elections.

The most dangerous moment for a survivor of domestic violence is the moment they choose to leave the abusive situation [1]. Finding shelter becomes a primary concern, especially amidst a pandemic, when domestic violence is on the rise and a safe place to live can mean the difference between health and infection [2]. Even before the pandemic, 57 percent of homeless women reported that the immediate cause of their displacement was domestic violence [3]. Thus, when secure housing is found, it is all the more valuable.

Unknown to many, however, is that political participation jeopardizes safe housing by publicizing survivors’ addresses, making their locations known to their abusers. In order to avoid exposure, many survivors of domestic violence, like Midori Davidson, struggle with the choice to vote. Davidson recalls that she was “afraid to vote” because she was paranoid about what would happen if her abuser found her online [4]. She explains that it was “the first time I had the freedom to do something that I’m supposed to do, but I didn’t want that freedom to be snatched.” Although Davidson eventually cast her ballot, thousands of survivors like her are still shut out of the political process.  

This is unacceptable. States should protect the privacy of their citizens, including survivors. As a nation, we must anonymize voters’ registration information to ensure survivors are not forced to choose between their physical safety and political self-determination.

Nearly every state makes voter registration information public. This information is part of the public record, and in the name of transparency, fully accessible to the public. Full names, birth dates, and addresses are usually available for purchase by political campaigns and are aggregated by third party databases for further use [5]. But at the same time, these records are used as political tools, public voter records enable abusers to track down and harm survivors.

By focusing on transparency rather than confidentiality, state publication of voter information effectively disenfranchises survivors who’ve managed the feat of securing safe housing. In addition, survivors of domestic violence are disproportionately members of marginalized groups, whose voices are already minimized in the political arena. Indigenous women experience the highest rates of domestic violence, closely followed by Black women [6] [7]. Sixty-one percent of bisexual women will face domestic violence in their lifetimes, as well as 44 percent of lesbian women [8]. By disproportionately harming marginalized communities, public voter records act as yet another form of voter suppression [9].

This is a cruel irony, as the National Resource Center on Domestic Violence states “the number one thing [we] can do to address domestic and sexual violence is commit to voting” for policies that will affect change in the lives of survivors, from affordable housing to funding for community crisis centers [10]. Without protection, however, survivors lose this avenue to determine their future. Survivors have already experienced a loss of control, and that abuse continues through their disenfranchisement.

In an attempt at a solution, 40 states have instituted Address Confidentiality Programs (ACPs) that provide survivors with an alternate address for official state matters. These programs, however, vary state by state, and some do not provide confidentiality for voting purposes. In New Mexico, ACP registration requires a $25 fee, which could be prohibitive for many economically disadvantaged survivors [11]. In Wisconsin, a survivor applying for their ACP would have to file four discrete forms, which must be completed in person [12].

If these procedural barriers weren’t enough, for all ACPs, the burden is on survivors to prove that they have been affected by domestic violence. Survivors must present a sworn statement that they are a survivor of abuse, forcing them to voice their trauma for protection [13]. Furthermore, in states like Tennessee and Kentucky, the survivor must file a protection order against their abuser, or even win a conviction in a court of law [14]. This makes ACPs prohibitive for many survivors who choose to not interact with the judicial system, either due to a lack of resources, knowledge that abusers are rarely convicted, or an inherent lack of trust in a system that has no interest in protecting their needs.

Furthermore, these programs are so underpublicized that they are rendered ineffective. Amy Miller, director of Violence Free Colorado, said of her state’s program, “I’ve never been told that it was an option when I’ve registered to vote in this state” [15]. The data reflects this: as of 2018 in Colorado, only 4,500 people were registered with the state’s ACP program, while 16,700 cases of domestic violence were reported to Colorado police [16] [17]. In North Carolina, only 900 people were enrolled, even though, in 2014, almost 2,000 survivors were aided by state services in a single day [18] [19]. These disparities are even larger when considering the amount of violence that goes unreported and unseen.

Survivors deserve both safe housing and a voice in democratic elections. A system that is designed to jeopardize one in order to maintain the other is unjustifiable. Voter registration lists must be made private, or at the very least, addresses should not be part of the publicly available data set. The burden should not be on survivors to prove their need for privacy and security; instead, it should be on the campaigns to provide a valid reason as to why they need to access this personal information. 

The government must protect citizens from harm at home: a supposed private, secure space, and a foundation of American life. Especially now, amid the pandemic, safe housing provides more than privacy — it is a barrier against the virus-infected outside world and can mean the difference between life and death. 

As the system exists now, survivors are forced to voice their trauma to gain protection, a substantial burden, which virtually precludes this marginalized group from political participation. We must honor survivors’ rights to self-determination and safety in their homes, and automatically anonymize voter registration lists on a national level. 

notes:

1. “NCADV | National Coalition Against Domestic Violence.” https://ncadv.org/why-do-victims-stay. Accessed 6 Jan. 2021.

2. Megan L. Evans, M.D., M.P.H., A Pandemic within a Pandemic — Intimate Partner Violence during Covid-19. https://www.nejm.org/doi/full/10.1056/NEJMp2024046. Accessed 1 June 2021.

3. Safe Housing Partnerships. https://safehousingpartnerships.org/sites/default/files/2017-05/SHP-Homelessness%20and%20DV%20Inforgraphic_1.pdf. Accessed 6 Jan. 2021. 

4. Devna Bose. “‘Don’t Let Them Take Your Voice Away’: Domestic Violence Survivors Face Voting Challenges.” The Charlotte Observer, 9 Oct. 2020, https://www.charlotteobserver.com/news/politics-government/election/article246265510.html.

5. Scottie Andrew. “For Abuse Victims, Registering to Vote Brings a Dangerous Tradeoff.” CNN, 27 Oct. 2020, https://www.cnn.com/2020/10/27/us/domestic-violence-voting-election-privacy-trnd/index.html.

6. 2018 NCVRW Resource Guide: Intimate Partner Violence Fact Sheet. https://ovc.ojp.gov/sites/g/files/xyckuh226/files/ncvrw2018/info_flyers/fact_sheets/2018NCVRW_IPV_508_QC.pdf. Accessed 6 Jan. 2021.

7. 2018 NCVRW Resource Guide. Accessed 6 Jan. 2021.

8. 2018 NCVRW Resource Guide. Accessed 6 Jan. 2021.

9. Matt DeRienzo. “Analysis: Voter Suppression Never Went Away. The Tactics Just Changed. – Center for Public Integrity.” Center for Public Integrity, 28 Oct. 2020, https://publicintegrity.org/politics/elections/ballotboxbarriers/analysis-voter-suppression-never-went-away-tactics-changed/.

10. Danielle Root. “Obstacles to Voting for Survivors of Intimate Partner Violence - Center for American Progress.” Center for American Progress, 1 Nov. 2018, https://www.americanprogress.org/issues/democracy/reports/2018/11/01/460377/obstacles-voting-survivors-intimate-partner-violence/.

11. Address Confidentiality Laws by State. Apr. 2020, https://nnedv.org/wp-content/uploads/2019/07/Library_Safety_Net_ACP_Chart_April_2020.pdf.

12. Address Confidentiality Laws by State. Apr. 2020.

13. Address Confidentiality Laws by State. Apr. 2020.

14. Address Confidentiality Laws by State. Apr. 2020.

15. Danielle Root. “Obstacles to Voting for Survivors of Intimate Partner Violence - Center for American Progress.” Center for American Progress, 1 Nov. 2018, https://www.americanprogress.org/issues/democracy/reports/2018/11/01/460377/obstacles-voting-survivors-intimate-partner-violence/.

16. Danielle Root. “Obstacles to Voting for Survivors of Intimate Partner Violence” 

17. National Coalition Against Domestic Violence. Domestic Violence in Colorado. https://assets.speakcdn.com/assets/2497/colorado_2019.pdf. Accessed 6 Jan. 2021.

18. Devna Bose. “‘Don’t Let Them Take Your Voice Away’: Domestic Violence Survivors Face Voting Challenges.” The Charlotte Observer, 9 Oct. 2020, https://www.charlotteobserver.com/news/politics-government/election/article246265510.html.

19. National Coalition Against Domestic Violence. Domestic Violence in North Carolina. 2019, https://assets.speakcdn.com/assets/2497/north_carolina_2019.pdf.

Bibliography:

Evans, M.D., M.P.H., Megan L. A Pandemic within a Pandemic — Intimate Partner Violence during Covid-19. https://www.nejm.org/doi/full/10.1056/NEJMp2024046. Accessed 6 Jan. 2021.

2018 NCVRW Resource Guide: Intimate Partner Violence Fact Sheet. https://ovc.ojp.gov/sites/g/files/xyckuh226/files/ncvrw2018/info_flyers/fact_sheets/2018NCVRW_IPV_508_QC.pdf. Accessed 6 Jan. 2021.

Address Confidentiality Laws by State. Apr. 2020, https://nnedv.org/wp-content/uploads/2019/07/Library_Safety_Net_ACP_Chart_April_2020.pdf.

Andrew, Scottie. "For Abuse Victims, Registering to Vote Brings a Dangerous Trade Off." CNN, 27 Oct. 2020, https://www.cnn.com/2020/10/27/us/domestic-violence-voting-election-privacy-trnd/index.html.

Bose, Devna. "‘Don’t Let Them Take Your Voice Away’: Domestic Violence Survivors Face Voting Challenges." The Charlotte Observer, 9 Oct. 2020, https://www.charlotteobserver.com/news/politics-government/election/article246265510.html .

DeRienzo, Matt. "Analysis: Voter Suppression Never Went Away. The Tactics Just Changed. –Center for Public Integrity." Center for Public Integrity, 28 Oct. 2020, https://publicintegrity.org/politics/elections/ballotboxbarriers/analysis-voter-suppression-never-went-away-tactics-changed/.

National Coalition Against Domestic Violence. Domestic Violence in Colorado. https://assets.speakcdn.com/assets/2497/colorado_2019.pdf. Accessed 6 Jan. 2021.

---. Domestic Violence in North Carolina. 2019, https://assets.speakcdn.com/assets/2497/north_carolina_2019.pdf.

"NCADV | National Coalition Against Domestic Violence." Logo, https://ncadv.org/why-do-victims-stay. Accessed 6 Jan. 2021.

Root, Danielle. "Obstacles to Voting for Survivors of Intimate Partner Violence - Center for American Progress." Center for American Progress, 1 Nov. 2018, https://www.americanprogress.org/issues/democracy/reports/2018/11/01/460377/obstacles-voting-survivors-intimate-partner-violence/.

Safe Housing Partnerships. https://safehousingpartnerships.org/sites/default/files/2017-05/SHP-Homelessness%20and%20DV%20Inforgraphic_1.pdf. Accessed 6 Jan. 2021.

Legal Abortions: Poland vs. the US

By: Reese Rosental Saporito

Edited by: John Perales Jr., Danielle Spitz, and Tess Ballis

A woman’s right to control her own body and her own reproductive choices have been up for debate in countries all across the world. Poland has some of the strongest abortion laws in the world, which have led to public outcry. In this essay, I will describe how we can view Poland as a case study  to anticipate the future of the United States’ abortion laws. Many similarities in policy and public responses can be seen in the United States and Poland: the actions of politicians, the interpretation of religion in politics, and politicians ignoring public opinion. The combination of these actions has led to protest and turmoil in Poland, and the United States will face the same level of unrest if the nation continues down its current path and further restricts abortion laws. I will argue that the current political climate in the U.S. could put us on a path leading to laws similar to Poland’s, and how restricting abortion on the same basis as Poland would breach the United States’ Constitution. This is revealed, in part, by Amy Coney Barrett’s recent appointment to the Supreme Court and her religion-based views on abortion.

As of October 28, 2020, decision K 1/20 made it illegal for women to have safe abortions in Poland.[1] Compared to other European countries, Poland already had strict laws regarding abortion access. Poland’s 1993 Act on Family Planning restricted legal abortions to only include cases in which the mother’s life was in danger, the fetus is irreversibly ill, or the pregnancy was the result of an illegal action such as rape.[2] This new development to Polish law will make access to abortions even more difficult, as abortion due to fetal congenital defects will be now considered unconstitutional. This ruling by the court has led to massive protests in the streets of Warsaw and across Poland. Protesters, most of whom are female, have faced brutal attacks by far-right members of Poland’s leading party, the Law and Justice Party. These attacks have been orchestrated by the far-right party leader Jarosław Kaczyński, who released a message calling for his supporters to protect churches from disruption by protestors. Instances like these have directly led to female protestors facing violence by Kaczyński’s far-right supporters.[3]  

This political decision has been perceived by reporters and civilians as an exploitation of religion and an abuse of power in the name of religion. Religion can often be used as a cover-up in politics, as ideologies can be used as an explanation for one’s view on a certain topic or policy, acting as a facade to hide their true beliefs. Religious doctrines are often employed by politicians as justifications for their policies in both Poland and the United States alike, despite the constitutional separation of church and state in America.[4] Polish politics in particular are heavily influenced by the Catholic Church, as they do not have a precedent of separating church and state.[5] Law and Justice Politicians in Poland have chosen to directly ignore the wishes of the people and outlaw abortions based on the ideology of the Catholic Church. Over one-third of the total population of Poland favored the loosening of abortion laws, but the political body in Poland tightened them regardless.[6] Polish Deputy Prime Minister Jarosław Kaczyński referred to the court’s abortion decision as “completely in line with the Polish constitution.”[7] However, Poland’s constitution “has its origins in the idea of inclusiveness and openness to many world views.”[8] Court decision K 1/20, shows that the intentions of Poland’s constitution writers are being ignored in practice.[9] Polish law also states that the Constitutional Court can only rule on abortion’s legal implications, not the moral assessment.[10] In addition to drawing on Catholic morals, Polish abortion law has utilized the textualist interpretation of Article 38 of the Constitution Article 38 gives legal protection to every human life. Despite not stating that life begins at conception, this article has been used to restrict abortion.[11]

Unlike Poland, the U.S. Constitution does not talk about conception but constitutional precedent protects freedom of religion. The U.S. also does not have a clause like Poland’s Article 38, which could be used to call the motives for attempting to ban abortion into question. The United States Senate’s recent confirmation of Justice Amy Coney Barrett to the Supreme Court could result in restricted abortion laws similar to Poland’s. Barrett has been outwardly vocal about her desire to overturn Roe v. Wade, the Supreme Court case protecting a woman’s right to choose to have an abortion.[12] Barrett has a history with anti-abortion groups and has signed public statements in opposition to abortion.[13] Similar to Kaczyński, Barrett makes her case on the basis of religion. Barrett signed an anti-abortion letter published in the South Bend Tribune when she was leaving church one day and stated, ”It was consistent with the views of my church, and it simply said we support the right to life from conception to natural death.”[14] However, the First Amendment to the Constitution of the United States ensures religious freedom.[15] Therefore, the separation of church and state comes into play by ensuring that the government does not make laws on the basis of or in favor of one religion.[16]

While this decision would look politically different in the U.S. than in Poland, similar reactions might result.  If Barrett brings a challenge to Roe v. Wade to the table based on her faith, this is a violation of the First Amendment and the separation of church and state. While her religious beliefs cannot be a reason to overturn the case, she may be more adamant about bringing it back to the table for reconsideration. Therefore, her religious beliefs would be indirectly resulting in a rediscussion about Roe v. Wade. Being that Barrett’s religious opinion on abortions has been vocalized, she could be held under public scrutiny no matter the basis for overturning Roe v. Wade. Public criticism for a lifetime-appointed Supreme Court Justice can be detrimental to their career and will effectively put every statement and decision under scrutiny as well. Since Barrett will be a justice for life, the public can scrutinize her on all fronts, but in the end, she will act how she pleases which will likely be against the well-being and opinions of the American public. However, if Roe v. Wade is effectively overturned, it is left to each state to decide to protect the right to choice, so we will likely not see a nation-wide abortion ban.[17] Roe v. Wade is high-risk for being overturned, as the Supreme Court now holds a 6-3 conservative majority.[18] If the decision to overturn Roe v. Wade becomes finalized, the U.S. will face the same social turmoil and protests as Poland. We have already seen the public protests and outcry regarding the defunding of Planned Parenthood, therefore it is safe to assume that we would see a round two if Roe v. Wade gets overturned.

Similar to Poland,  U.S. decisions regarding a woman’s right to choose are made and discussed by men in politics. As of 2019, 12% of Poland’s cabinet was made up of women.[19] In the US, as of 2019,  25% of the Senate and 23% of the House of Representatives were made up of women.[20] From a logical standpoint, the women in power should be the voices listened to regarding decisions about women’s reproductive rights, being that they are affected firsthand by these laws. However, since women make up such small portions of the government in both the U.S. and Poland, we see men making critical decisions about women’s bodies with little to no input from the affected groups. Most importantly, in governments like those of Poland and the United States, decisions should be made based on the opinion of the people. Both governments operate as some form of a republic, which leaves room for democracy. Therefore, to preserve rule of law, the people should have a say and be listened to when it comes to court cases and laws restricting the choices of the people, such as in the case of abortion. 

Poland is now in a state of turmoil and civic unrest caused by its government’s decision to tighten abortion laws. The combination of Deputy Prime Minister Kaczyński’s call to action and the disregard for public desire have resulted in massive protests for women’s rights. Poland’s abortion decisions have been heavily influenced by the Catholic Church, as they do not have a separation of church and state. However, this precedent is seen in the United States, so the basis for overturning Roe v. Wade goes against years of criterion set for lawmaking regarding religion. Justice Barrett, like Deputy Prime Minister Kaczyński, is against abortion on the grounds of religion, as shown by her Notre Dame law school article recounting that the Catholic Church deemed abortion as always immoral. Therefore Justice Barrett is in direct violation of the separation of church and state as well as the First Amendment. If the U.S. does not follow the ideals of democracy and listen to the people, the unrest and protest in Poland will be replicated on American soil. Overturning a Supreme Court case takes into consideration the opinions of six conservative justices and three liberal justices and is therefore not a democratic decision based on the opinions of the people. While the Supreme Court Justices are able to make decisions based on their ideologies, they are not to use political party preference in their decision making. However, it has been confirmed, by large amounts of academic research, that these ideologies reflect a Justice’s political philosophy and party.  The U.S. will face the same issues as Poland if it does not put politics back on a democratic track.  If the Supreme Court focuses on ways to amend and overturn previous decisions, the efficacy of the court to make decisions on new cases and new change could be tossed aside. Overturning a past case inhibits the court from progressing with the rest of the country to make new, necessary, and imperative legal changes.

notes:

1. “Polish president changes stance on abortion rights amid widespread protests.” 

2. “Abortion in Poland.”

3. Karolina Wigura, “Poland's Abortion Ban Is a Cynical Attempt to Exploit Religion by a Failing Leader.”

4. Wigura, “Poland’s Abortion Ban…”.

5. John Feffer, “Church and State in Poland.”

6. Wigura, “Poland’s Abortion Ban…”.

7. Laurenz Gehrke, “Polish PM Defends New Abortion Law as Women Take to Streets.” 

8. Gehrke, “Polish PM Defends…”.

9. Ewa Łętowska, “A Tragic Constitutional Court Judgment on Abortion.” 

10. Gehrke, “Polish PM Defends…”.

11. Łętowska, “A Tragic Constitutional…”.

12. Łętowska, “A Tragic Constitutional

13. Thompson-DeVeaux and Skelley, “What Amy Coney Barrett's Confirmation Could Mean For Roe v. Wade.” 

14. Emma Green, “No One Likes Amy Coney Barrett's Abortion Answer.”

15. “First Amendment.”

16. “Separation of Church and State.”

17. Jo Yurcaba, “Planned Parenthood's President On What Could Happen If Roe V. Wade Is 'Gutted'.”

18. Joan Biskupic, “Analysis: Amy Coney Barrett Joins the Supreme Court in Unprecedented Times.”

19. Adriana Sas, “Proportion of Women in Polish Cabinets 2019.”

20. “Women's Representation.”

Bibliography:

“Abortion in Poland.” Wikipedia. Wikimedia Foundation, December 17, 2020. https://en.wikipedia.org/wiki/Abortion_in_Poland. 

Ameliatd. “What Amy Coney Barrett's Confirmation Could Mean For Roe v. Wade.” FiveThirtyEight. FiveThirtyEight, October 15, 2020. https://fivethirtyeight.com/features/what-amy-coney-barretts-confirmation-could-mean-for-roe-v-wade/. 

Biskupic, Joan. “Analysis: Amy Coney Barrett Joins the Supreme Court in Unprecedented Times.” CNN. Cable News Network, October 27, 2020. https://www.cnn.com/2020/10/27/politics/amy-coney-barrett-joins-supreme-court-unprecedented/index.html. 

Ewa Łętowska. “A Tragic Constitutional Court Judgment on Abortion.” Verfassungsblog, November 12, 2020. https://verfassungsblog.de/a-tragic-constitutional-court-judgment-on-abortion/. 

Feffer, John. “Church and State in Poland.” HuffPost. HuffPost, May 18, 2016. https://www.huffpost.com/entry/church-and-state-in-poland_b_7306004. 

“First Amendment.” Legal Information Institute. Legal Information Institute. Accessed October 30, 2020. https://www.law.cornell.edu/constitution/first_amendment. 

Gehrke, Laurenz. “Polish PM Defends New Abortion Law as Women Take to Streets.” POLITICO. POLITICO, October 27, 2020. https://www.politico.eu/article/polish-pm-defends-new-abortion-law-as-protests-continue/.

Green, Emma. “No One Likes Amy Coney Barrett's Abortion Answer.” The Atlantic. Atlantic Media Company, October 14, 2020. https://www.theatlantic.com/politics/archive/2020/10/amy-coney-barrett-roe-v-wade/616702/. 

Kuisz, Jarosław, and Karolina Wigura. “Poland's Abortion Ban Is a Cynical Attempt to Exploit Religion by a Failing Leader | Karolina Wigura.” The Guardian. Guardian News and Media, October 28, 2020. https://www.theguardian.com/commentisfree/2020/oct/28/poland-abortion-ban-kaczynski-catholic-church-protests. 

The Associated Press“Polish President Changes Stance on Abortion Rights amid Widespread Protests.” NBCNews.com. NBCUniversal News Group, October 29, 2020. https://www.nbcnews.com/news/world/polish-president-changes-stance-abortion-rights-amid-widespread-protests-n1245227. 

Representation2020.com. “Women's Representation.” RepresentWomen. Accessed October 30, 2020. 

"Roe v. Wade." Oyez. Accessed October 29, 2020. https://www.oyez.org/cases/1971/70-18.

Sas, Adriana. “Proportion of Women in Polish Cabinets 2019.” Statista, October 19, 2020. https://www.statista.com/statistics/870500/proportion-of-women-in-polish-cabinets/. 

“Separation of Church and State.” Legal Information Institute. Legal Information Institute. Accessed October 30, 2020. https://www.law.cornell.edu/wex/separation_of_church_and_state. 

Yurcaba, Jo. “Planned Parenthood's President On What Could Happen If Roe V. Wade Is 'Gutted'.” Forbes. Forbes Magazine, October 28, 2020. https://www.forbes.com/sites/joyurcaba/2020/10/28/planned-parenthoods-president-on-what-could-happen-if-roe-v-wade-is-gutted/. 

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2020 Election Litigation Undermines American Democratic Values

By: Aidan Ocampo

Edited by: Claire Lu, Maddie Bennett, and Kirsten Huh

An essential aspect of our democracy, the right to vote, is in jeopardy. The American democracy, sometimes considered a model form of government, was designed in response to a British tyranny that early colonists barely escaped. Centuries later, tyranny once again threatens to dismantle our rights and destroy our principles of democracy. Far before our time, Plato theorized about the potential downfall of the democratic system. In The Republic, Plato writes “the neglect of other things introduces the change in democracy, which occasions a demand for tyranny. [1]” 

Preceding the 2020 presidential election, President Donald Trump continuously made suggestions of voter fraud. In addition to unproven illegal voting, he even downplayed the integrity of mail-in ballots [2][3]. In the midst of a global pandemic, the method of mail-in ballots was a safer way for Americans to exercise their right to vote. Expecting a large number of Americans to utilize this opportunity, President Trump intentionally spread unfounded rumors to undermine their validity and secure his own victory. Simply put, this practice is disenfranchisement as a US President attempted to strip Americans of their vote.

President Trump promised to fight the election results in the courts, claiming he would take it to the Supreme Court [4]. However, his refusal to concede the election by delegitimizing hundreds of thousands of votes has caused irreparable damage to our democracy for years to come. In future elections, politicians unhappy with the results may continue the practice of sowing American distrust in our election systems, a practice that is lethal to our democracy.

Former Vice President Joe Biden managed to pull off an electoral victory by flipping key battleground states such as Pennsylvania, Arizona, Wisconsin, Michigan and Georgia. Coincidentally, these are the same states that President Trump’s post-election litigation has targeted. Given the number of mail-in ballots, many of these states required days after the Tuesday general election to process and count such ballots. This delay in counting allowed President Trump to sow distrust in the American electoral system. His refusal to accept the results of the election has even warranted criticism from his own party. 

Prominent Republican politician, Senator Mitt Romney (R-UT) denounced President Trump’s claims saying he “failed to make even a plausible case of widespread fraud or conspiracy before any court of law, the President has now resorted to overt pressure on state and local officials to subvert the will of the people and overturn the election,” said Romney, a former Republican nominee for president. “It is difficult to imagine a worse, more undemocratic action by a sitting American President [5].” 

Much of the Trump campaign’s post-election litigation depends on alleged claims of inconsistencies in ballot counting – a claim that it has failed to provide evidence to prove. In Pennsylvania, the Trump campaign filed a claim in a US District court that mail-in ballots were given less oversight than in-person ballots [6]. Citing Bush v. Gore, the plaintiffs included that “the right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise… the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another [7].” However, the use of Bush v. Gore as precedent is an invalid attempt to justify baseless claims. The Supreme Court case Bush v. Gore pertained to inconsistencies given to ballot counting procedures between different counties in the state of Florida. In Trump’s Pennsylvania case, Donald J. Trump et al. v. Kathy Boockvar et al., No. 20-845 (2020), Trump’s argument pertains to alleged inconsistencies within particular counties, namely Allegheny, Chester, Delaware, Montgomery, Northampton, and Philadelphia county. Therefore, the alleged inconsistencies within counties does not warrant the use of Bush v. Gore, No. 00-949 (2000), which argued inconsistencies between counties. Additionally, Bush v. Gore was decided by court justices who were aware of its potential precedential consequences, stating in the per curiam, that “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities [8].” Thus, the court’s justices did not want this case to be established as precedent for future cases, limiting its ruling to this single instance.

Most of Trump’s election litigation has no legal basis. No matter how hard his legal team searches, there is no legal precedent for overturning election results. In fact, many of his cases have already been shut down in the courts by judges. In the aforementioned Pennsylvania case, district court Judge Brann “wholeheartedly rejected the Trump campaign’s attempt to throw out the Pennsylvania vote [9].” In Judge Brann’s order, he stated “it is not in the power of this Court to violate the Constitution [10].”

Besides few small legal victories [11], Trump’s campaign has been unsuccessful in his larger efforts to overturn the election. The longer he delays the inevitable Biden presidency, the more damage he imposes on our electoral system. The past four years of a Trump administration have already left deep cracks in our democratic foundation, and the next months of litigation could shatter it.

In 2016, Andrew Sullivan wrote for New York Magazine, “In terms of our liberal democracy and constitutional order, Trump is an extinction-level event. It’s long past time we started treating him as such. [12]” Trump’s response to the results of the 2020 general election is direct evidence of this. Four years ago, Sullivan hypothesized on the threat Trump posed to our democracy. Now, it may be too late.

notes:

1. Plato. 2008. “The Project Gutenberg EBook of The Republic,” August 27. https://www.gutenberg.org/files/1497/1497-h/1497-h.htm.

2. Andrew Solender. Forbes. October 24. Accessed November 21, 2020. https://www.forbes.com/sites/andrewsolender/2020/10/24/trump-votes-in-person-and-slams-mail-in-voting-as-campaign-urges-voters-to-vote-by-mail/?sh=384f4dfe1ec1.

3. Donald J. Trump. 2016. Twitter. https://twitter.com/realdonaldtrump/status/802972944532209664?lang=en.

4. Devin Dwyer. 2020. ABC NEWS. November 4. Accessed November 21, 2020. https://abcnews.go.com/Politics/trump-asks-supreme-court-intervene-pennsylvania-vote-count/story?id=74026219.

5. Kyle Feldscher. 2020. CNN Politics. November 20. https://www.cnn.com/2020/11/19/politics/mitt-romney-ben-sasse-trump/index.html.

6. Donald J. Trump et al. v. Kathy Boockbar et al. No. 20-845 (2020). 

7. Donald J. Trump et al. No. 20-845 (2020)

8. George W. Bush et al., Petitioners v. Albert Gore, Jr., et al. No. 00-949 (2000). 

9. Katelyn Polantz and Kevin Bohn. 2020. CNN.com. November 21. Accessed November 21, 2020. https://www.cnn.com/2020/11/21/politics/federal-judge-dismisses-trump-pennsylvania-lawsuit/index.html.

10. CNN. 2020. CNN.com. November 21. Accessed November 21, 2020. https://www.cnn.com/2020/11/21/politics/pennsylvania-trump-lawsuit-dismissal/index.html.

11. Maryclaire Dale and Alanna Durkin Richer. 2020. APnews.com. Accessed December 17, 2020. https://apnews.com/article/joe-biden-donald-trump-campaigns-pennsylvania-lawsuits-b56e0555a2bea650b12f53b979ea7493

12. Andrew Sullivan. 2016. New York Magazine. May 1. Accessed November 1, 2020. https://nymag.com/intelligencer/2016/04/america-tyranny-donald-trump.html.

Bibliography:

CNN. 2020. CNN.com. November 21. Accessed November 21, 2020. https://www.cnn.com/2020/11/21/politics/pennsylvania-trump-lawsuit-dismissal/index.html

Dale, Maryclaire, and Richer, Alanna Durkin. 2020. APnews.com. Accessed December 17, 2020. https://apnews.com/article/joe-biden-donald-trump-campaigns-pennsylvania-lawsuits-b56e0555a2bea650b12f53b979ea7493

Dwyer, Devin. 2020. ABC NEWS. November 4. Accessed November 21, 2020. https://abcnews.go.com/Politics/trump-asks-supreme-court-intervene-pennsylvania-vote-count/story?id=74026219.

Feldscher, Kyle. 2020. CNN Politics. November 20. https://www.cnn.com/2020/11/19/politics/mitt-romney-ben-sasse-trump/index.html.

Illing, Sean. 2016. Vox.com. November 7. Accessed November 21, 2020. https://www.vox.com/policy-and-politics/2016/11/7/13512960/donald-trump-plato-democracy-tyranny-fascism-2016-elections.

Plato. 2008. The Project Gutenberg EBook of The Republic. August 27. https://www.gutenberg.org/files/1497/1497-h/1497-h.htm.

Polantz, Katelyn, and Kevin Bohn. 2020. CNN.com. November 21. Accessed November 21, 2020. https://www.cnn.com/2020/11/21/politics/federal-judge-dismisses-trump-pennsylvania-lawsuit/index.html.

Solender, Andrew. 2020. Forbes. October 24. Accessed November 21, 2020. https://www.forbes.com/sites/andrewsolender/2020/10/24/trump-votes-in-person-and-slams-mail-in-voting-as-campaign-urges-voters-to-vote-by-mail/?sh=384f4dfe1ec1.

Sullivan, Andrew. 2016. New York Magazine. May 1. Accessed November 1, 2020. https://nymag.com/intelligencer/2016/04/america-tyranny-donald-trump.html.

Trump, Donald J. 2016. Twitter. https://twitter.com/realdonaldtrump/status/802972944532209664?lang=en.