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By Karen Musalo, clinical professor of law and director of the Center for Gender and Refugee Studies at the University of California, Hastings College of Law.

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On August 4, 2010, in a closely watched case, an immigration judge granted asylum to Ms. L.R., a woman from Mexico. The grant in Ms. L.R.'s case came on the heels of a grant of asylum in another high-profile case, that of the Guatemalan asylum seeker, Rody Alvarado. What both cases had in common is that the women asylum seekers had fled brutal violence and abuse at the hands of their male partners in a situation where neither the police nor the courts responded to repeated calls for protection. Taken together the cases send a message loud and clear that domestic violence can be the basis for a successful claim to asylum. They also stand for the broader principle that women who suffer a range of violations of their fundamental human rights - from female genital cutting (FGC), to honor killings, to forced marriage or sexual slavery - are also entitled to protection as refugees.

Although the protection of women whose human rights are violated should not be a controversial proposition, it has been - and continues to be - and women have had to struggle for the recognition that "women's rights are human rights." Their activism over the years has resulted in the promulgation of a number of international human rights instruments, including the Declaration on the Elimination of Violence against Women that specifically address the human rights of women.

In the United States, these advances began to bear fruit in the refugee protection area with the 1996 grant of asylum to Fauziya Kassindja, a woman who fled female genital cutting [FGC]. The decision in Fauziya Kassindja's case (known as Matter of Kasinga) was issued by the Board of Immigration Appeals (BIA), the highest immigration tribunal in the U.S., and was the first precedent decision in U.S. law granting asylum to a woman who fled a gender-based form of persecution. Women's rights and refugee rights advocates celebrated the grant in Ms. Kassindja's case, seeing it as the opening of the door to protection for women fleeing gender-based violations.

However, the celebration was short-lived. Three years later the BIA denied asylum to Rody Alvarado, who sought asylum from more than a decade from what can only be characterized as torture at the hands of her husband, an ex-soldier in the Guatemalan military. Over the ten years of their marriage, her husband pummeled her with his fists, broke windows and mirrors with her head, woke her in the middle of the night with a knife to her throat, and threw machetes across the room at her. The police never answered her desperate calls for help, and a judge told her he wouldn't get involved in a "private" matter.

The denial of asylum in Ms. Alvarado's case was the opening shot in a 14-year-long battle to vindicate the principle that women's rights are human rights, and to hold the courts to the precedent exemplified by the grant of asylum in Matter of Kasinga. Ms. Alvarado was finally granted asylum in December 2009. To understand how this came about, it's necessary to return to where we began - the L.R. case, which the Obama Administration chose to be the vehicle by which it would articulate its position on the issue of asylum in cases such as these. Although one can only speculate, it is a good assumption that the Administration chose the L.R. case because its facts were not only compelling, but also representative of cases involving gender-based violence.

When Ms. L.R. was a 19-year-old student at a teacher training school in Mexico, the school's sports coach - who was 33 years old at the time - raped her at gunpoint. For the next two decades he kept her in virtual captivity, using physical force, beatings and threats of death to her and her family members, to prevent her from leaving him. On occasions she tried to escape him, and his retaliation was swift and brutal - in one instance he locked her in a room and set a fire, trying to burn her alive. Ms. L.R.'s pleas to the police to assist not only went unanswered, but they put her at greater risk because the police told her common-law husband that she had complained, which resulted in even more serious beatings. The response of the judiciary was - for the most part - equally atrocious. When her common law husband prevented L.R. from seeing their three children (all of whom were the result of being raped by him) and she sought assistance from a judge, he told her he would help only if she had sex with him, and when she refused, he told her she was a bad mother, because a good mother would do anything for her children.

Ms. L.R. had been denied asylum at the first two tiers of decision-making (asylum office and immigration court). During the Bush Administration, the Department of Homeland Security (DHS) had filed a brief to the BIA defending the denial of asylum to Ms. L.R. Once the Obama Administration came in, the DHS position changed, and they filed a brief in April 2009 stating that women such as Ms. L.R., who have suffered domestic violence, could qualify for asylum. The brief laid out the elements for a successful claim, stating that a woman would have to show that in her country: 1) the society and legal norms tolerate and accept violence against women; 2) the home government is unable or unwilling to protect; and 3) there is no place within the home country that the woman could move to in order to escape her persecutor.

Both Rody Alvarado and Ms. L.R. submitted briefs and extensive evidence demonstrating that the conditions, respectively, in Guatemala and Mexico met these requirements. The DHS agreed, and the immigration judges handling the cases granted asylum to Rody Alvarado in December 2009, and to Ms. L.R. on August 4.

The victories in these cases are significant - for the two women who now have the protection they so desperately sought - as well as for the message they send. However, neither of these grants of asylum are legally binding on other adjudicators because decisions by immigration judges do not have precedential value. Therefore advocates on the issue continue to argue for clear national guidance - in the form of regulations or legislation, to prevent retrenching or backtracking on this issue.

Although it might seem like an easy next step to translate the progress exemplified by the grants of asylum to Ms. Alvarado and Ms. L.R., into regulations or legislation, continued hostility to the protection of women refugees continues from some quarters. For example, the grant to Rody Alvarado prompted the Center for Immigration Studies, which is generally perceived as being restrictionist in its position on immigration policies, to issue a harsh - and for the most part, distorted - critique of the policy of granting protection in cases such as these.

It would require a longer, and much more technical article than this to respond one by one to the distortions and inaccuracies in the CIS piece. However, in concluding, it is worth noting that the policy of granting asylum in gender-based claims - including claims of domestic violence - is nothing novel or revolutionary. To the contrary, it is well-accepted under international norms, as well as pursuant to the domestic law of many refugee-receiving countries. The United Nations High Commissioner for Refugees (UNHCR) has made recommendations for such acceptance beginning in the 1980s, and the high courts of the United Kingdom, Australia, and New Zealand - to name a few - have landmark decisions recognizing the validity of such claims. Many other countries have addressed the issue of protection in these cases through formal guidelines for their adjudicators, or through legislation or regulations. In that light, the move towards acceptance in U.S. law - although welcome - is a bit late in coming for a country that likes to see itself as a leader in championing the human rights of women.

 

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By John Rother, executive vice president for policy and strategy at AARP.

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On Saturday, we marked the diamond anniversary of a national treasure - Social Security, signed into law on August 14, 1935. With his signature, President Roosevelt began what has become the bedrock of economic security for countless working Americans and their families. In addition to providing retirement benefits for those age 62 and older, Social Security provides benefits that help all generations. Families of soldiers killed in Iraq and Afghanistan, children who lose a working parent, workers who become disabled, widows and widowers - all count on Social Security benefits. In all, 53 million Americans today count on Social Security as a critical source of income.

It's a time to celebrate Social Security's remarkable past success, and to commit to ensuring our nation's most important program will be strong in the future. It's also a time to counter false assumptions that give rise to so-called "solutions" that instead of strengthening the program, will undermine the retirement security of our children and grandchildren.

The fact is, Social Security will be as important for future generations as it is for current retirees. In the recession millions of Americans lost their jobs and their pensions and saw their private savings accounts plummet with the fall of the stock market, but Social Security benefits were there, as they have been for 75 years, in good times and bad.

For the majority of retirees, Social Security can be the difference between aging with independence and aging in financial desperation. To be specific, Social Security provides more than half the income for 72 percent of single individuals age 65+ who receive Social Security benefits and for 52 percent of couples who receive benefits.

And, yet, as vital as these benefits are, they are modest by any standard. Social Security was never designed to be a worker's sole source of retirement income. Today's average workers' benefits will replace only about $4 of every $10 earned while working. The average retirement benefit in December 2009 was $1,168 per month - about $14,000 a year. For retired women, even less - only $983 a month -- or less than $12,000 a year.

Even so, it's become conventional wisdom for young people - and many older folks as well -- to assume the program won't be around when they need it. Only one in three 18- to 29-year-olds in a recent AARP survey said they were "very" or "somewhat" confident of the future of Social Security. This is not surprising when you have alarmists running around saying the program is about to go broke. Yet, even though younger Americans lack confidence in Social Security being there for them, more than nine in ten want to know it is there when they retire just in case they need it.

What alarmists won't tell you is that Social Security is stronger than most people believe. Even if Congress does absolutely nothing, Social Security can pay full benefits until 2037 and 78 percent of benefits for decades after that. And, the Social Security Trust Funds have assets of about $2.5 trillion, and it's still growing.

Paying 78 percent of benefits isn't good enough, however, so we know we need to make changes to Social Security over the long-term so that it will be able to continue to pay promised benefits to future generations. The changes do not have to be drastic, but the sooner we act, the better. By making a few changes to Social Security now, we can keep it strong for our children and grandchildren.

Unfortunately, some in Washington are proposing cutting Social Security benefits to reduce the deficit. Yes, our nation's leaders need to find ways to reduce the deficit, but Social Security has played no role in our current deficit situation. There are several ways to strengthen the program's long term finances through modest adjustments that can be phased in over many years.

Social Security, by law, is separate from the rest of the federal budget. It is self-financed, and cannot legally spend more than it collects through payroll taxes, the taxation of benefits, and the assets in the Trust Fund. In fact, for years, Social Security's surpluses have masked the true size of the deficit in the rest of the federal budget.

We need a national discussion on how to restore retirement security for all Americans. Old-fashioned as it might sound, that dialogue should be bipartisan. It should include strategies to promote more saving in addition to Social Security, such as through incentives to save in the workplace, especially where employers do not offer pensions, or 401(k)-type savings plans. We need real leadership in Congress to address these issues in ways that support economic growth as well as personal financial security.

Keeping Social Security strong should be something we all can agree on. It is one insurance policy we all know is needed, with benefits earned by all who pay in.

We all have a stake in getting this right.

 

The Social Security Act turned 75 on Saturday, and President Obama seized the occasion to remind the public that the United States cannot afford to privatize social security.

"I'll fight with everything I've got to stop those who would gamble your Social Security on Wall Street," President Obama said during his weekly address. "Because you shouldn't be worried that a sudden downturn in the stock market will put all you've worked so hard for - all you've earned - at risk. You should have the peace of mind of knowing that after meeting your responsibilities and paying into the system all your lives, you'll get the benefits you deserve."

Adds the Los Angeles Times in an editorial:

Conservatives have tried for several years to use the trust fund's long-term troubles as a rationale for privatizing Social Security. But allowing workers to take control (and responsibility) for all or part of their accounts would only exacerbate the problem. That's because, despite $2.5 trillion in reserves, the trust fund isn't large enough to finance the benefits promised to workers already in the system. Shifting payroll taxes from the trust fund to private accounts would make the shortfall worse.

The editorial calls instead for a combination of smaller steps, including raising the retirement age, raising payroll taxes, cutting benefits and changing cost-benefit adjustments.

Editorials in both The Washington Post and The New York Times also call for balanced reform, with a combination of benefit cuts and tax increases, but the Post calls the newest numbers a "warning sign," while The Times editorial board says "Social Security is holding up even in the face of a weak economy," due in part to savings Medicare will experience thanks to health care reform.

Paul Krugman writes that claims of a Social Security crisis rely on "bad-faith accounting."

"I'm not just talking about the fact that it's a lot easier to imagine working until you're 70 if you have a comfortable office job than if you're engaged in manual labor," Krugman writes. "America is becoming an increasingly unequal society - and the growing disparities extend to matters of life and death. Life expectancy at age 65 has risen a lot at the top of the income distribution, but much less for lower-income workers. And remember, the retirement age is already scheduled to rise under current law."

Derek Thompson writes in the Atlantic that Krugman's article is misleading, pointing out that modest cuts today will benefit the bottom 50 percent of Social Security recipients more than steep cuts in the future.

The Nation's Katrina vanden Heuvel suggests: "on this 75th anniversary, rather than fighting these Social Security-busters, we should celebrate what has been one of the nation's best anti-poverty programs - a lifeline for millions of Americans - and a reminder of what effective government can do."

She adds:

This anniversary is also a reminder of how major social reforms in this country have come about - in fits and starts. As former Clinton adviser Paul Begala observed in a Washington Post op-ed, "No self-respecting liberal today would support Franklin Roosevelt's original Social Security Act... If that version of Social Security were introduced today, progressives like me would call it cramped, parsimonious, mean-spirited and even racist. Perhaps it was all those things. But it was also a start. And for 74 years we have built on that start."

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By Senator Tom Harkin (D-IA). Sen. Harkin is Chairman of the Senate Health, Education, Labor and Pensions Committee.

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The Americans with Disabilities Act - signed into law on July 26, 1990 - has been described as the Emancipation Proclamation for people with disabilities. It sets four goals for people with disabilities: equal opportunity, full participation, independent living and economic self-sufficiency.

But at its heart, the ADA is simple. In the words of one activist, this landmark law is about securing for people with disabilities the most fundamental of rights: "the right to live in the world." It ensures they can go places and do things that other Americans take for granted.

I will always remember a young Iowan named Danette Crawford. In 1990, she was just 14. She used a wheelchair, and lived with great pain. But she campaigned hard for the ADA. When I told her that the ADA would mean better educational opportunities, and prevent workplace discrimination, Danette said: "Those things are very important. But, you know, what I really want to do is just be able to go out and buy a pair of shoes like anybody else."

Two decades later, people with disabilities can do that - and so much more. The ADA has changed America in ways largely invisible to most citizens, but profoundly transformative for tens of millions of Americans with disabilities.

How soon we forget the pre-ADA America. In hearings before passing the law, we heard heartbreaking testimony about the obstacles and discrimination that people with disabilities faced in their daily lives. We heard stories of Americans who had to crawl on their hands and knees to go up a flight of stairs, or to gain access to their local swimming pool; who couldn't ride on a bus because there wasn't a lift; who couldn't go to concerts or ballgames because there was no accessible seating; who couldn't cross the street in wheelchairs because there were no curb cuts. In short, we heard thousands of stories about people denied the right "to live in the world."
ADA passage was a bipartisan effort. As chief sponsor in the Senate, I worked closely with both sides of the aisle. We received invaluable support from President George H.W. Bush and key members of his administration, especially Attorney General Dick Thornburgh. The final Senate vote, 91 to 6, sent a resounding message that this nation would no longer tolerate isolation and second-class citizenship for people with disabilities.

In the ensuing years, we have seen amazing progress. Streets, buildings, sports arenas and transportation systems are now more accessible for people with physical impairments. Information is offered in alternative formats, useable by people with visual or hearing impairments. New technologies for people with disabilities continue to be developed.

Thanks to ADA employment provisions, those with disabilities are able to get reasonable accommodations on the job, like assistive technology, or accessible work environments, or more flexible schedules.

Just as important, we have seen a big change in attitudes. Our expectation is that we do what it takes to give individuals with disabilities not just physical access, but equal opportunity in our schools, in our workplaces, in all areas of our economy and society.

Every individual with a disability deserves a chance "to live in the world" - to hold a job, start a business, pay taxes and reside with family or in the community.

Despite the great progress, our work is far from complete. For example, millions of people with disabilities - including young people - are housed in institutional settings like nursing homes. With appropriate community-based services and supports, they can have the option of living with family and friends - not strangers. The new health reform law makes some progress on this, but we need to do even more.

When he signed the ADA into law, Bush spoke with great eloquence: "Let the shameful wall of exclusion finally come tumbling down." Twenty years later, that wall is indeed falling.

The ADA has broken down barriers, created opportunities and transformed lives. Today, we recognize that people with disabilities - like all people - have unique abilities, talents and aptitudes. Our nation is better, fairer and richer when we make full use of those gifts.

The ADA is America at its very, very best.

 

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By Paul M. Secunda, Associate Professor of Law, Marquette University Law School

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This morning, the U.S. Supreme Court heard oral argument in an important case at the intersection of labor law, statutory interpretation, and administrative law. In New Process Steel, L.P. v. NLRB, on appeal from the Seventh Circuit Court of Appeals, the Court will decide whether a two-member National Labor Relations Board (NLRB or Board) has the authority to engage in adjudication on behalf of the Board. The Board has operated with only two members for over two years, since the appointments of two Board members expired on December 31, 2007. Just before that time, effective midnight, December 28, 2007, the Board delegated all of its powers to a group of three members to continue to issue decisions and orders as long as a quorum of two members remained. Since that time, the two Board members remaining, acting as a quorum of the group, have issued over 500 decisions.

First, some labor law background: the NLRB is an independent federal agency, established to prevent and remedy violations of the National Labor Relations Act, 29 U.S.C. §§ 151-169, called "unfair labor practices," by both employers and unions, and also to hold union representation elections. The Board is supposed to be a five-member panel that primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board Members are appointed by the President to 5-year terms, with Senate consent. The terms of the Board members are staggered such that the term of one Member expires each year. Because of the political nature of Board appointments (with the President's party controlling three positions), the last couple decades have seen many vacancies on the Board. In the last few years, political partisanship has reached an all-time high and President Obama's recent nomination of Craig Becker to serve as a Member on the Board was filibustered by Senate Republicans this past February.

As a result, the Board currently has only two members and three vacancies. The current Members are Chairman Wilma B. Liebman (Democrat) and Member Peter C. Schaumber (Republican). The authority of a two-member Board to make decisions and carry on the business of the agency has caused a split in the circuits. Although there were four petitions for certiorari filed with the U.S. Supreme Court, the Court decided to take up the issue in New Process Steel. The D.C. Circuit (an important appellate court in administrative law matters) has held that the Board with only two members does not form a quorum and therefore has no authority to render decisions. See Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009). On the other hand, the First, Second, and Seventh Circuits have found that a such a Board was contemplated under the statute and can validly express the authority of the agency. See New Process Steel, L.P. v. NLRB, 564 F.3d 840 (7th Cir. 2009); Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2nd Cir. 2009); Northeastern Land Servs., Ltd. v. NLRB, 560 F.3d 36 (1st Cir.2009).

The dispute requires interpretation of Section 3(b) of the NLRA. It provides:

[t]he Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. ... A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.

So, Section 3(b) of the Act provides that the Board can delegate its powers to a group of three Board Members and normally, Board vacancies do not impair the authority of remaining Board members to exercise the powers of the Board. That Section also provides that two members shall constitute a quorum of any three-member Board group established pursuant to the Board's delegation authority. When read in combination, the Board has maintained that the plain meaning of those delegation, vacancy, and quorum provisions authorize the Board's action in these two-member cases.

It goes without saying that it would be an administrative catastrophe of epic proportions if over 500 Board decisions were vacated by the Supreme Court's decision in New Process Steel. But besides the obvious prudential considerations for affirming the Board's authority in these cases, I believe strongly that the proper functioning of the National Labor Relations Board inures to the benefit of American workers. As such, I hope that the Court will find that the Board's decision to exercise its authority in this manner over the last two plus years was an eminently reasonable construction of its powers under Section 3(b) of the Act (especially based on the fact that the appellate courts have come to different interpretations on the disputed provisions). That action will once again enable the Board to continue to promote the Act's purpose of helping to avoid industrial strife.

One more point: the current situation of the Board results from an on-going political dispute between the President and Congress. What needs to happen, and happen now, is for President Obama to appoint, at the very least, a third Board Member by recess appointment. The President and his allies have attempted to move a package of three nominees through the Senate only to be filibustered. At this point, only the recess appointment would take the Board out of this untenable, albeit lawful, position. Labor law and the protections it affords are just too important to employees and their families to continue to receive this type of treatment at the hands of the political process.

[Image via NLRB.]

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By Thomas O. McGarity, Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law, University of Texas at Austin & Member Scholar, Center for Progressive Reform

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The citizens of Minot, North Dakota suffered a grave injustice on January 18, 2002 when a train derailment bathed much of that small town in a toxic cloud of poisonous gas that killed one person and injured almost 1,500 others. A detailed investigation by the National Transportation Safety Board concluded that the derailment was most likely caused by fractures in temporary joints that the railroad had installed to repair the track.

When the victims sued the railroad for damages caused by its negligent maintenance, they found the courthouse doors locked. A federal district court held that their claims were preempted by the Federal Railroad Safety Act (FRSA) of 1970, which contained a "preemption" clause that Congress enacted to prevent states and localities from enacting regulations that were inconsistent with the regulations issued by the Federal Railroad Administration (FRA), the federal agency that Congress created to protect citizens from irresponsible railroads.

The court held that because Congress empowered the FRA to regulate railroad safety, injured citizens could not sue the railroads when they operated their trains unsafely -- whether or not they complied with FRA requirements. Other courts have issued similar decisions in cases involving train collisions, derailments and grade-crossing accidents.

During the Bush Administration, the FRA aggressively asserted its newfound power to protect railroads by preempting state common law. A new white paper issued by the Center for Progressive Reform (which I co-authored) explores the injustice inherent in this interpretation of the statute.

Proponents of preemption argue that the FRA is fully capable of protecting U.S. citizens without the help of juries applying vague common law standards to reach potentially inconsistent results in 50 different jurisdictions. The citizens of Minot know that's not true.

The 400 inspectors working for the Federal Railroad Administration are responsible for 1.2 million rail cars operating on nearly 300,000 miles of track. In 2003, the FRA fully investigated only four of the nearly 3,000 grade-crossing accidents that occurred and imposed fines for only about 2 percent of the violations it discovered. The agency's solution to its resource problem is to rely heavily upon the railroads themselves to inspect rolling stock and track for compliance with FRA safety regulations. That puts the fox firmly in charge of the henhouse, with predictable results.

The CPR report documents how the FRA has long been thoroughly "captured" by the industry it is supposed to be regulating. High-level agency officials and industry lawyers and executives move seamlessly through the agency's rapidly revolving door.

The notion that common law is unnecessary because the FRA does such a splendid job of guarding public safety is thus a cruel joke. The victims of irresponsible railroad behavior and their families have suffered in silence. And those of us who live near railroads or frequently encounter railroad crossings are at the mercy of railroad companies that know full-well that they are unlikely to be called to account by a resource-starved federal agency.

Congress reacted to this obvious injustice in 2007 by adding a proviso to the preemption section of the FRSA stating that it did not block citizens seeking damages in cases where the plaintiff alleged that the railroad had failed to comply with a federal standard, one of its own rules, or valid state law. This specific injunction should have sent a message to the FRA and the federal courts that they were to get out of the business of preempting state common law claims when the railroad violated valid state or federal requirements or one of its own safety regulations. Yet, an FRA regulation, issued in April 2008, stated that the amendment merely established "rare" exceptions to the general rule that state common law claims were preempted.

And in the early months of the Obama administration, when the president had not yet appointed the agency's new leaders, FRA continued to write broad preemption language in the preambles to its rules. Several lower court decisions have likewise narrowly limited the amendment and have continued to hold that valid common law claims are preempted. Last May, President Obama issued a memorandum to the agencies instructing them to preempt state common law only when they have a legal basis for doing so and only when the preemption satisfies the requirements of Executive Order 13132, which expresses a policy of respect for the authority of the state agencies and courts to regulate and adjudicate.

The FRA should heed the president's orders. And it should send a message to the courts by recanting previous preemption statements, repealing language in existing regulations preempting state common law claims, including provisions in future rules preserving state common law claims, and sending amicus briefs -- vigorously defending the right of plaintiffs to sue irresponsible railroads -- to courts that are asked to dismiss cases on preemption grounds. Our safety deserves no less.

[Image via Wade From Oklahoma.]