Sunday, January 23, 2011

WCL students will present an oral argument against the DOJ

On January 25, the UNROW Human Rights Impact Litigation Clinic will present an oral argument against the Department of Justice in the Fourth Circuit on behalf of David Johnson, a United States citizen who is facing deportation.  Mr. Johnson has been wrongfully held in immigration detention for more than two years while the U.S. government has tried to deport him to Jamaica, a country Mr. Johnson has not seen for over three decades. 

Mr. Johnson derived U.S. citizenship as a child when his father became a naturalized U.S. citizen.  When the government tried to deport Mr. Johnson in 1998, an immigration judge reviewed documentary evidence, decided that Mr. Johnson was a citizen, and terminated the removal proceedings.  This has not stopped the government from trying yet again to litigate the issue of Mr. Johnson’s citizenship.

What is at stake in this case is whether an individual such as Mr. Johnson is entitled to repose—a concept protected by the legal doctrines of res judicata and collateral estoppel—or whether the government can litigate the same issue repeatedly, perhaps ceaselessly until it obtains the result it desires.  In the past eighteen years, the U.S. government has denied Mr. Johnson repose by subjecting him to three sets of removal proceedings. 

Mr. Johnson’s case also raises important questions dealing with the Equal Protection Clause.  According to the government’s interpretation of the relevant statute, Mr. Johnson’s parents must have been married and subsequently legally separated in order for him to derive U.S. citizenship.  The government’s interpretation of this statute effectively penalizes a child for the actions of his parents, namely his parents’ failure to marry.  A constitutional reading of the statute would not discriminate between the child of parents who are married and parents who are unwed.  In fact, Congress deleted the language requiring a legal separation in a revised version of the statute, but these revisions do not apply retroactively.

Angad Singh, a third-year law student, will be arguing with the assistance of third and second-year law students, Brenda L. Robles and Rachel Zoghlin.  The oral argument is scheduled for 9:30 a.m.  For more information on the case, please contact the UNROW Human Rights Impact Litigation Clinic at

Wednesday, January 19, 2011

Gay Marriage News That You May Have Missed

Gay marriage is an issue worth keeping up with even if your queer politics are not inclined to focus on issues affecting mostly conventional, privileged gay couples. The gay marriage battle is constantly evolving, and consists of a landscape that is more complex than most people know, involving an overlay of statutory and constitutional bans on same-sex marriage, and alternative forms of couple recognition like civil unions, and domestic partnerships. Some states even have prohibitions on same-sex marriage, while they offer alternative forms of couple recognition. It is a cracked, uneven surface ahead. 

Nonetheless there are two related developments that you may have missed over the holiday season. 

First, the good news. Illinois approved a civil union measure called The Illinois Religious Freedom and Civil Union Act in late November. The bill is expected to be signed in the near future. The new law will allow same-sex couples to enjoy spousal benefits though under civil union instead of marriage recognition. 

And in terms of bad news, WCL's very own Nancy Polikoff reported on the Beyond (Straight & Gay) Marriage blog that New Mexico's Republican Governor may repeal domestic partner benefits. Domestic partner benefits, which were established by former Governor Bill Richardson by executive order, are currently available to same-sex and opposite-sex couples. The issue is in litigation, and is due for a Ninth Circuit hearing on February 14. We'll have to wait and see. 

Tuesday, January 18, 2011

The "Atmospherics" Around Constitutionalism & The Healthcare Law

By Richael Faithful

On Wednesday the House of Representatives will vote on H.R. 2, the "Repealing the Job-Killing Health Care Law Act," otherwise known as the Republican bill to repeal the health care law (Affordable Care Act). Throngs of legal scholars have defended the health care law's constitutionality--including over 100 professors who have recently signed the American Constitution Society's statement to that effect. Simply put, leading constitutional thinkers have reached a consensus that the federal government's authority exercised through the healthcare law is "unambiguous." So, if the people who think and breath the Constitution, from the ideological left and right, have no question about the law, why the fuss?

The fuss boils down to what some are describing as "radical constitutionalism" by certain political communities and constituents, namely the so-called Tea Party Movement. I use the less generous and sound-bite worthy term "selective constitutional literalism." The reason that some of the public is ignoring the constitutional experts is because they deeply believe in literal constitutional interpretation in which a person can read and point to a specific clause to refute or bolster broad claims about the law or their own rights. From this perspective all matters of law and policy are simple matters; the health care law's health care mandate provision is unconstitutional because there is no express constitutional language about the federal government's authority to require health care coverage. Why is Big Government trying to make me buy their insurance? Isn't it my right to do what I want with my money? My health is my own business, not theirs. End of story.

In reality, the health care law is really the beginning of a very interesting and important conversation not about its constitutionality, but on its opponents' socio-legal philosophy, as framed by Tom Ashbrook's On Point show, "Congress & Constitutional Arguments." Here, two constitutional scholars, a law/politics reporter, and the host illuminate that public backlash against the health care law, based on supposed constitutional principles, is little more than an isolated and selective reading of the Constitution, one which is frozen in a revisionist 1787 history.

The discussion highlighted two important points: 1) the Constitution must be read and understood in its entirety of have any coherent meaning; 2) it is fundamentally a pro-tax document which expressly invested the federal government with expanded powers over time via the Amendments; and 3) popular constitutional literalist movements are usually driven by "atmospherics" such as political and cultural skepticism of constitutional authorities (i.e. the country's first Black President, Barack Obama). The most disturbing fact is that the so-called Tea Party Movement reflects a widely-held belief that the Constitution is a literal, static, and ahistorical source of law, much like The Bible. In other words, Americans just don't get the Constitution, despite our democratic obligation as a free people to govern through it.

Most Congress watchers doubt that the repeal bill will go far, as it is expected to die in the Senate. Predictions are about the same for the law in courts, even though the issue may reach the highest court. But perhaps the most significant outcome of this debate is whether constitutional illiteracy will become real, and in effect, kill one of the most significant legislative measures of this century.

Friday, January 7, 2011

Keep Ahead: Interesting American University Law School Spring Events To Look Out For

Perhaps one of the coolest programs at American University, Washington College of Law (home of TMA) is the Founders' Day events. Dean of WCL, Claudio Grossman, through the initiative, funds a number of symposia, conferences, and events during the spring semester based on students' proposals. 

They are free, open to the public, held at WCL in Northwest DC, and usually offer lunch or dinner depending on the time (only registration is required). It's a really neat way for folks to learn about legal happenings, engage in discussion, and connect with other like-minded people.

The Special Events website contains a comprehensive list of the events here. We wanted to highlight several events:

TMA affiliated
Minority Majority: The Social and Legal Implications of a Post-White America, March 23, 6 - 8pm. Sponsored by The Modern American.

Roots & Reality II: Hip Hop, Law, and Social Justice Organizing, April 13, 10am - 2:30pm. Co-sponsored by TMA, WCL chapter of the National Lawyers Guild, Sports and Entertainment Law Society, and corporate sponsors, HBO & BET.

12th Annual Martin Luther King Jr. Birthday Commemoration, January 20, 4 - 6pm. Sponsored by the Office of Diversity Services. 

Responding to Anti-Muslim Bigotry, January 26, 12 - 2pm. Sponsored by the Program on Law & Government, and the Center for Human Rights & Humanitarian Law. 

Violence Against Native Women: Is the Tribal Law and Order Act of 2010 A Step Forward? January 27, 12 - 2pm. Sponsored by the Women and the Law Program. 

Vulnerable Populations: LGBT Youth in the Correctional System and Foster Care. February 1, 10am - 12pm. Sponsored by the Lambda Law Society and the Labor and Employment Law Forum. 

Housing Justice in the Nation's Capital: Strategies to Preserve Homes and Neighborhoods During the Foreclosure Crisis, February 3, 1 - 5pm. Sponsored by the Community and Economic Development Clinic, the Disability Rights Law Clinic, and the General Practice Clinic. 

Washington "Redskins": Pride or Prejudice? February 15, 6 - 9pm. Sponsored by the Sports and Entertainment Law Society and the Program on Information Justice and Intellectual Property. 

The Freedom Riders and the Progression to Post Racial America. February 17, 5:30 - 9:30pm. Sponsored by the Black Law Students Association. 

Keeping the Needs of Students with Disabilities on the Agenda: Current Issues in Special Education Advocacy. February 25, 9am - 5:30pm. Sponsored by the Journal of Gender, Social Policy and the Law, and the Disability Rights Law Clinic. 

Tribes, Land, and the Environment. February 25, 9am - 5pm. 

To Kill A Mockingbird: An Examination of Race and Justice 50 Years Later. February 28, 12 - 2pm. 

14th Annual Hispanic Law Conference: The Role of the Legal Community in Addressing Latino Issues. March 1, 4 - 9pm. Sponsored by the WCL Latino/a Law Students Association, Hispanic Bar Associations of DC, MD, and VA, and the Latina/o Alumni Association of WCL. 

Immigration Law Conflicting with Human Rights: Families Lost Through Deportation. March 24, 9am - 5pm. Sponsored by the International Human Rights Law Clinic. 

The New "Illegitimacy": Re-visiting Why Parentage Should Not Depend on Marriage. March 25 - 26, 9 - 5pm. Sponsored by the Journal on Gender, Social Policy, and the Law, and the National Center for Lesbian Rights. 

The New Racism. March 28, 2:30 - 5:30pm. Sponsored by the Journal on Gender, Social Policy, and the Law. 

The Fourth Annual WCL Asian Pacific Americans and the Law Alumni Awards Dinner. March 30, 6 - 9pm. Sponsored by the Asian Pacific American Law Students Association and the Asian Pacific American Bar Association of DC. 

National South Asian Summit. April 2 & 3, 9 - 5pm. Sponsored by the South Asian Law Students Association and South Asian Americans Leading Together. 

14th Annual Sylvania Woods Conference and African Americans in the Law. April 7, 4 - 9pm. Sponsored by the Office of Diversity Services. 

Soul Food Seder. Sponsored by the Jewish Law Students Association and the Black Law Students Association. 

Tara's Crossing: LGBT Asylum-Seekers and the U.S. Immigration System. April 14, 6 - 9pm. Sponsored by the Immigrant Justice Clinic, Immigrants' Rights Coalition, and the Lambda Law Society. 

The "New" American Workday: How 9 - 5 has become 24/7. April 18, 9 - 5pm. Sponsored by the Labor and Employment Law Forum & the Labor and Employment Law Society. 

Not in the DC area? No sweat. See WCL's podcast collection to listen/watch the event you missed.

If you need practical information about transportation, accessibility, dietary accommodation requests or more, contact The Modern American at, refer to this post, and we'll be glad to help. 

See you at the events!

Tuesday, January 4, 2011

Announcing Fall 2010 TMA Issue - Volume 6 Issue 2

The Modern American is proud to announce publication of the Fall 2010 issue. This issue features five articles and five features on issues ranging from immigrant voting to sex-segregated athletics. Plus, check out exclusive interviews from authors and our LatCrit conference highlight at our website.

Finally, tell us what YOU think. Until March 1 TMA will be conducting a Readers' Survey. A completed survey can enter you into a raffle for an ipod shuffle.