Georgetown University Undergraduate Law Review, Volume VI, Issue 1, Spring 2020

Georgetown University Undergraduate Law Review

Volume VI, Issue I Spring 2020

All rights reserved No part of this publication may be reproduced or transmitted in any form without the express written consent of the Georgetown University Undergraduate Law Review Copyright 2020

Georgetown University Undergraduate Law Review Volume VI, Issue I Spring 2020 Editor-in-Chief Kaarish K. Maniar Managing Editors Sarah M. Donofrio Patrick C. McGlinchey Dominic J. Solari Senior Blog & Layout Editor Aristides N. Hadjipanteli Assistant Editors Karan Balaji Sarem Haq Dustin Hartuv Kaitlin Hughes Quentin Levin Danny McCooey Arjun Ravi Lauren K. Scarff

Blog Editors Joseph O’Reilly Owen Johnson Chloe Wallace Layout Editors Delaney Corcoran Meredith Nally Editorial Board Emeriti Adrienne Jackson Morgan Birck Austin Baker

Line Editors Solveig Baylor Lindsey Clark Anvi Gulrajani Caroline Landler Sadie Morris Alex Ragland Priyanka Shingwekar Maeve Silk Curtis Yun

Faculty Advisor Honorable Thomas L. Ambro Judge, Third Circuit, U.S. Court of Appeals

Undergraduate Law Review Letter from the Editor May 14, 2020 Dear Reader,

After another extensive search and several months of rigorous editing, the Editorial Board is proud to present you with Volume VI of Georgetown University Undergraduate Law Review. This edition features undergraduate research and writing that offers unique and interesting perspectives on a wide array of legal topics. Keeping with our aim as a journal, this edition includes pieces that offer valuable contributions to the scholarly discourse surrounding some of the most pressing legal questions of our time.

We open the volume with three articles focused on the realm of international legal conflicts. The first article, from Alexandra Byrne, is a timely explanation of why existing approaches to paying reparations are so often ineffective and what additional facets ought to merit consideration. We continue with an article from Philippa O’Hagan, who articulates the United States’ changing role in the Israel-Palestine conflict. Yining Li follows with a forceful argument for the need to recognize and respect ISIS affiliates’ human right to citizenship.

The latter half of the volume narrows in on domestic legal issues. Victoria Galarraga explores the rescission of DACA and offers us a thoughtful consideration of Department of Homeland Security vs. Regents of the University of the California. The spotlight then shifts to our juvenile justice system with Abigail Lovell’s compelling call to reconsider how we address girls’ unique needs in the criminal justice system. We close the volume with Andrew Abad’s overview of the oft overlooked issue of manufactured housing law in America.

We are incredibly thankful to the authors for sharing with us their contributions. I also owe much gratitude to each of our editors, who have invested countless hours in preparing the volume for publication—the volume is chiefly the product of your hard work. I am especially appreciative of our Managing Editors, Sarah Donofrio, Patrick McGlinchey, and Dominic Solari, as well as our Senior Blog & Layout Editor, Aristides Hadjipanteli, for their leadership and tireless commitment to maximizing the quality of the scholarship we publish. We are also grateful to the Pre-Law Society for its support and to Georgetown Law’s Anna Selden for her guidance.

With the pages that follow, we hope to shed light on the important contributions that these six authors make and to spark inspiration for further scholarship into each of the legal subjects they highlight. As always, please share with us your comments and feedback; we can be reached at guundergraduatelawreview@gmail.com.

My Best,

Kaarish K. Maniar Editor-In-Chief

Table of Contents Adequate, Effective, and Prompt: Analyzing the Right to Reparations in Transitional Justice

1

Alexandra Byrne

Israel’s Attorney-at-Law: U.S. Congress and the Anti-Terrorism Clarification Act

14

Philippa O’Hagan

Losing Citizenship: A Comparative Study on the Legal Issues of Returning ISIS Affiliates

23

Yining Li

DACA’s Rescission: Behind the Veil

31

Victoria Galarraga

An Ounce of Prevention: Reorienting Gender-Based Juvenile Justice Reform

39

Abigail Lovell

A Quest for Safer Living: The History and Impact of Manufactured Housing Law in America

Andrew Abad

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Adequate, Effective, and Prompt:

Analyzing the Right to Reparations in Transitional Justice

Alexandra Byrne College of William & Mary Abstract The right to reparations is clearly defined in international law as a human right, though no framework and little precedent exists to guide reparations programs and ensure their implementation. This paper argues that the right to reparations is a customary norm of international law and should be fulfilled with the same urgency and adequacy of other customary norms. I compile a formula for reparations implementation based on three case studies of past reparations programs. This formula consists of lost income, lost assets, and costs of medical, legal, and psychological services. Finally, I develop a timeframe for reparations implementation by region based on household wealth and yearly expenditure. Based on these findings, I make several recommendations as to how governments should proceed when establishing reparations programs that comply with international law and the basic principles of human rights.

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Adequate, Effective, and Prompt I. INTRODUCTION

The term ‘reparations’ was once used in the context of payments among states following major war. The payments Germany was obligated to pay following World War I is a common example that demonstrates this usage of the term.1 Following World War II, the meaning of reparations shifted.

Reparations in their current sense can be traced back to the second half of the twentieth century, with agreements such as the Luxembourg Agreement of 1952 between Israel and Germany for victims of the Holocaust.2 The contemporary debate on reparations for slavery in the United States has come to the forefront of American politics and has shaped recent conversations on reparations.3 Despite these historical and current examples, the greatest volume of reparations programs has been in the context of transitional justice. Developing the theory and framework for reparations in a transitional context provides a strong legal and practical basis for the reparations argument.

There are countless situations in which governments commit or condone massive, gross violations of human rights vis-à-vis their people. Often in the past, these atrocities have gone unnoticed, unpunished, and unacknowledged. A lack of repercussions allows governments to circumvent punishment for crimes against humanity. This should be the norm no longer. Governments must be held accountable under international law, and victims must be afforded the remedies they require to recover from such atrocities. The right to reparations as an international norm is a method to enforce international law. A reparations program is a tangible, swift means to hold governments accountable to their people and is thus a fundamental human right.

In this paper, I argue that the right to reparations is a fundamental, customary human right.

These remedies and reparations should be substantial, transformative, and swift following a mass violation of human rights by a government or other entity in power. Only the guaranteed and enforced right to reparations can ensure that governments are held accountable for the atrocities they commit.

The goal of any reparations program should be to provide substantial compensation and information for victims or families of victims individually, so as to positively refocus the lives of those affected.

Depending on the region, an individual financial reparations program should commence within three to sixteen years as a delay in this timeframe would itself constitute a human rights violation because it further deprives victims of basic necessities. Above all else, it must be acknowledged that reparations, particularly in the form of financial compensation, are simply one cog in the greater machine of transitional justice. As such, reparations are only effective so long as they work in conjunction with other transitional justice mechanisms.

I argue these points while analyzing the language of international human rights treaties that guarantee the right to reparations. I will then introduce three case studies: one in which a reparations program was not carried out properly in Timor-Leste, one that was partially successful in Chile, and another in which reparations were relatively successful in Morocco. Using a combination of quantitative and qualitative methods, I will determine a framework for when individual financial reparations should be implemented and of what financial compensation should be composed. Finally, I suggest ways in which a nation can promptly issue reparations in an effective and respectful manner so as to comply with human rights law.4 1 Charles S. Maier, Recasting Bourgeois Europe: Stabilization in France, Germany, and Italy in the Decade After World War I (Princeton University Press 2015).

2 Frederick Honig, The Reparations Agreement Between Israel and the Federal Republic of Germany, 48 Am. J. Int’l L. 564 (1954).

3 Eric A. Posner and Adrian Vermeule, Reparations for Slavery and Other Historical Injustices, 103 Colum. L. Rev. 689 (2003).

4 Given the vastness of this field, this paper will not address other aspects of transitional justice or recommendations made by truth and reconciliation commissions unless expressly defined as a program of remedy with financial or social security benefits. I will focus my analysis of reparations in the context of post-conflict, transitional settings, as this is the

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Adequate, Effective, and Prompt II. ESTABLISHING REPARATIONS AS A FUNDAMENTAL HUMAN RIGHT Existing Approaches Transitional justice refers to the accountability mechanisms that governments employ following periods of substantial human rights violations.5 Transitional justice is a relatively young academic field. The seminal discussion of the topic comes with Priscilla Hayner’s influential book, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions. Hayner writes authoritatively on a range of case studies, often citing reparations as one of the main areas of focus for many truth commissions. Her work is widely acknowledged as having sparked the growth of the body of research that includes reparations scholarship.6 Other authors in the field have proposed the idea of reparations as a customary norm. Christine Evans acknowledged the ongoing debate, stating that “certain scholars consider the right already well-grounded in customary law, while others identify it as an emerging rule.”7 Her book, The Right to Reparations in International Law for Victims of Armed Conflict, includes comprehensive case studies analyzing the implementation of reparations but mainly assesses the degree of implementation. Jared L. Watkins introduced in his paper the language of “adequate, effective, and prompt” as a guideline for analyzing the right to reparations as defined under international law.8 The current literature is sparse, however, in outlining a timeline for reparations. There does not appear to exist an analysis of financial condition in relation to the years lived without reparations. The requisite of “prompt” as is included in international law has not been concretely defined by scholars.

Furthermore, suggestions for the components included in post-conflict reparations are often in the form of broad generalizations. Reparations formulas have been proposed for reparations for slavery in the United States, but these formulas are drastically different from the needs of victims of political violence in transitional settings.9 A formula that can easily be followed and adapted in real-world settings does not appear to exist. This paper attempts to fill these voids and offer guidance as to how reparations should fit into larger transitional justice remedies.

The Language of Treaties The right to reparations was first officially outlined in the 2005 United Nations General Assembly resolution entitled “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law” (“U.N. Principles and Guidelines”).10 The resolution states that the victims’ right to remedies should be “adequate, effective and prompt reparation for harm suffered,” and should include equal access to justice as well as sufficient information on violations and reparations most common situation in which reparations are proposed. Analysis in transitional settings provides a foundation for future reparations scholarship.

5 International Center for Transitional Justice, “What Is Transitional Justice?,” Feb. 22, 2011.

6 Priscilla B. Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (2nd ed. 2011).

7 Christine Evans, The Right to Reparation in International Law for Victims of Armed Conflict 238 (Cambridge University Press 2012).

8 Jared L. Watkins, The Right to Reparations in International Human Rights law and the Case of Bahrain, 34 Brooklyn J. Int’l. L. 559 (2009).

9 Patricia Cohen, What Reparations for Slavery Might Look Like in 2019, N.Y. Times (May 23, 2019), https://www.nytimes. com/2019/05/23/business/economy/reparations-slavery.html.

10 G.A. Res. 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Dec. 16, 2005).

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Adequate, Effective, and Prompt mechanisms.11 This outlines both a victim’s right to reparations, as well as the individual’s right to be informed of this right and the ensuing mechanisms to achieve it. The resolution further explains the right to reparations to be “proportional to the gravity of the violations and the harm suffered” and can fall into the categories of restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.12 Compensation, which is a particular focus of this paper, is intended to address physical or mental harm, lost opportunities, material and moral damage, loss of earnings, legal costs, and the cost of medical, psychological, and social services.13 Given these specificities, the question must be raised as to why reparations have not always been considered a fundamental human right and how this right can be better defined and actualized in the future.

The Legal Argument for Reparations The basis for wartime rights for civilians is outlined in the Fourth Geneva Convention, which protects civilians in warzones from all acts of violence and ensures their humane treatment.14 The Rome Statute of the International Criminal Court, made effective in 2002, expands upon previous jurisprudence relating to ‘crimes against humanity’ and other gross violations of international human rights.15 Section 2.(7)1 of the Rome Statute states that a ‘crime against humanity’ is a widespread and systematic attack against a civilian population that can take the form of murder, enslavement, imprisonment, torture, persecution, disappearances, apartheid, and other similarly inhumane acts. It is not necessary, according to the statute, to identify specific intent or identify a formally adopted state or organizational policy in furtherance of which these crimes were committed.16 Genocide, war crimes, and crimes of aggression are also identified as crimes under the International Criminal Court (“I.C.C.”) and are all punishable under international law.

Several past cases on the international circuit have resulted in jurisprudence on the right to reparations. The I.C.C. in several cases has ordered individual reparations. In The Prosecutor v. Ahmad Al Faqi Al Mahdi, the court ordered reparations for “damage to the attacked historic and religious buildings, consequential economic loss, and moral harm” in Timbuktu as well as individual reparations for those who lost their livelihoods in the attacks.17 In the case of Prosecutor v. Germain Katanga, the court found that Katanga, who was found guilty of war crimes and crimes against humanity in the Democratic Republic of the Congo, owed both individual and collective reparations to the victims.18 The court assessed the monetary value of the physical, material, and psychological harms suffered and determined that because the financial situation of the perpetrator was not stable enough to afford reparations, a separate entity could step in due to the immediate need of reparations. This acknowledgment by the court of the urgency of reparations supports the argument that the right to reparations does have a time frame attached to it.

These previous examples are specific to individuals that have committed crimes that necessitate reparations. While they are useful in analyzing how the I.C.C. approaches issues concerning the right to reparations, it also helps to examine jurisprudence that involves reparations due by the state.

11 Id., at VII.11(b).

12 Id., at IX.18.

13 Id., at IX.20.

14 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War III.I.27, Aug. 12, 1949, Int’l.

Comm. Red Cross.

15 Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 38544.

16 Id., at 2.(7)1.

17 Prosecutor v. Mahdi, ICC-01/12-01/15, Ruling of Trial Chamber VIII (Sept. 27, 2016).

18 Prosecutor v. Katanga, ICC-01/04-01/07, Ruling of Trial Chamber II (Mar. 7, 2014).

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Adequate, Effective, and Prompt In 2006, the Inter-American Court of Human Rights ruled in the case of Anzualdo Castro v. Peru that Peru had an obligation to provide reparations following the 1993 forced disappearance of Anzualdo Castro by the Peruvian Army Intelligence Service.19 This disappearance was in the context of a pattern of similar, widespread violations by the Peruvian government. The court advised that these reparations should be based on the criteria of loss of income, non-pecuniary damage, and costs and expenses.20 According to the ruling, the violations were to the detriment of not only Castro himself, but also his next-of-kin, thus acknowledging the right of families of victims to receive reparations in addition to victims themselves.21 Furthermore, the court acknowledged the customary right to reparations, stating that “it is a principle of International Law that any violation of an international obligation that has caused damage entails the duty to provide adequate reparation.”22

Thus, past jurisprudence on the international stage has included arguments for reparations, has recognized a limited timeframe for reparations, and has acknowledged their inclusion in customary international law.

III. CREATING A FRAMEWORK FOR REPARATIONS IMPLEMENTATION Defining Reparations “Adequate,” “effective,” and “prompt” are all highly subjective terms, yet they are the main characterization of reparations that fulfill human rights obligations. Through an empirical analysis of basic household finances in a later section of this paper, I will develop a framework for the “promptness” this resolution requires. As for the “adequate” and “effective” requisites, I argue that reparations should aim to return an individual to a near-identical version of their pre-violence status. Though this is difficult to measure morally and theoretically, reparations should address the aspects that are concretely measurable like financial burdens, healthcare needs, and information access, among others. Other recommendations of truth commissions or other transitional justice mechanisms, such as memorials and public apologies, have a greater potential to foster healing in the abstract sense. Reparations will be considered “adequate” only if individuals are able to pursue as many opportunities and enjoy the same pleasures of life that they did previously.

Likewise, only if the programs are widely available and accessible will they be “effective.” Accessibility must be defined to include equal opportunity to benefit from reparations programs for all those eligible. Individuals of all socioeconomic statuses, ethnicities, genders, ages, races, and the like must have access to the same, thorough information on their right to reparations and how they might go about obtaining them. Outreach to all affected areas must be pursued, and those who live in a remote village should have the same process to receive reparations as those who live in an urban center.

This require governments to create publications, hire staff, and establish community forums to ensure that all who are entitled to this right are informed of it and have the equal opportunity to claim it.

Case Studies What remains following the review of past jurisprudence and treaty law is the question of why governments are not held accountable to this custom and why they choose to not follow it. Through 19 Castro v. Peru, Inter-Am. Ct. H.R. (ser. A) (Sept. 22, 2009).

20 Id. This ruling supports the criteria outlined for reparations in this paper, see infra Section III, “The Reparations Formula.”

21 Id. 22 Id.

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Adequate, Effective, and Prompt case studies, I will analyze governments’ reactions to orders of reparations, why they have chosen not to respond, and how this affects victims and further violates their human rights. The case studies selected represent a range of effectiveness from Timor-Leste with an unimplemented reparations program, to Morocco with a fairly comprehensive reparative response to violations of human rights. In between the two is Chile, with a moderate, yet flawed program. It is important to note the complexity of each situation, as no reparations program to date has achieved perfect results. Thus, each case study must be analyzed with an understanding of imperfection. The results of these case studies are also useful in understanding the needs of victims in order to better formulate a framework for reparations implementation.

A. Timor-Leste The Comissão de Acolhimento, Verdade e Reconciliação (“C.A.V.R.”) was established in Timor-Leste after the period of violent Indonesian occupation of Timor-Leste between 1975 and 1999. The C.A.V.R. gathered 7669 statements that intended to form a clearer picture of the violations committed against East Timorese citizens during the occupation.23 During this period, clear violations of international human rights law were identified. Indonesia executed opposition members without trial, tortured detainees, used aerial bombing to attempt to starve the population, and disappeared civilians.24 Ultimately, the C.A.V.R. recommended in its report that these violations clearly necessitated reparations. It included in its report a framework for a reparations program, stating that it “urges the Government of Timor-Leste to implement a programme of reparations for the most vulnerable victims of human rights violations.”25 It defined reparations as directed to either individuals or collective groups, citing the U.N. Principles and Guidelines as the legal basis for its decisions. The C.A.V.R. report also acknowledged several caveats of this reparations program. It emphasized that reparations should be prioritized based on need, identifying single mothers, widows, the disabled, and survivors of sexual violence as most in need, due to Timor-Leste’s competing needs as a new country. It also determined that collective and symbolic measures are most cost-effective.26

Although the reparations clauses in the C.A.V.R.’s final report were some of the most detailed, no reparations program has been initiated. The government of Timor-Leste has ignored the recommendation and argues that the “duty of care” is being fulfilled by social security, health, and other services. The government fears that claims will be difficult to verify and can generate social jealousy.27 Many women who were victims of rape during the Indonesian occupation currently face discrimination and other difficulties, and many children who were separated from their families remain separated.

The collective reparations Timor-Leste is attempting to pursue are not “adequate” enough to solve the problems of victims who still feel the tangible effects of the violence. Scholar Andrew McGregor is one of a group of scholars that has begun to advocate for smaller, community grants in Timor-Leste that allow victims to choose how to spend the money so that they benefit the most from it. This approach does not involve foreign entities or governments dictating where the money is to be 23 John Roosa, How Does a Truth Commission Find out What the Truth Is? The Case of East Timor’s CAVR, 80 Pacific Affairs 569, 571 (2007).

24 Frank Chalk and Kurt Jonassohn, The History and Sociology of Genocide: Analyses and Case Studies 410 (Yale University Press 1990).

25 See supra note, at 23.

26 Commission for Reception, Truth and Reconciliation in East Timor 35 (2006).

27 Patrick Walsh, After 10 Years, CAVR Report Still Resonates in Timor-Leste and Around the World, International Center for Transitional Justice (Feb. 23, 2016), https://www.ictj.org/news/10-years-cavr-report-timor-leste-truth.

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Adequate, Effective, and Prompt spent; rather, the victims themselves can spend it how they see fit.28 Individualized reparations give agency to the victim and eliminate obstructive red tape.

Thus, the current reparations in Timor-Leste are not “effective” in bettering the lives of victims, since many face ongoing problems, such as financial instability, that prevent them from reintegrating fully back into society. Furthermore, it has been nearly fourteen years since the C.A.V.R. report was published and roughly twenty since the occupation of Timor-Leste. According to Table 1,29 the average victim in Timor-Leste cannot survive without reparations for more than three years. This clearly is a violation of the “prompt” right to reparations as defined under international law.

Though the government argued that a reparations program was not viable at the time given Timor-Leste’s financial situation, Timor-Leste implemented a similar system for Internally Displaced Persons (“IDPs”) following the political crisis of 2006. This system granted IDPs financial resources to rebuild the houses that had been destroyed, and was effective in returning a majority of IDPs to their homes.30 This program was remarkably similar to what an individual reparations program would look like in Timor-Leste. Thus, it is not Timor-Leste’s lack of financial or logistical resources that prevents reparations. Instead, it appears to be a lack of motivation by the government, which signals an active unwillingness to fulfill this fundamental human right.

B. Chile Chile was ruled by a military dictatorship from 1973 to 1990 rampant with human rights violations, such as political imprisonment, torture, and forced disappearances. Following this period, the subsequent democratic government decided to establish the Commission for Truth and Reconciliation to explain the “political, legal, and judicial conditions” surrounding the violations. It sought to establish not only the authoritative collective truth, but also individual truth on a case-by-case basis.31 In addressing cases individually, the commission exposed the need for reparations and the obligation of the government to provide them. Writing shortly after the commission concluded its investigations in 1991, Jorge S. Correa argued that “an obligation arises for the state and for all of society to involve itself in that reparative process.”32 The report of the Chilean Truth and Reconciliation Commission itself contends that “moral and material reparation seem to be utterly essential to the transition toward a fuller democracy.”33 The Truth and Reconciliation Commission recommended pensions for the social welfare of those who suffered from violations under the regime, and these pensions were established by law in February of 1992. Reparations were introduced for seven categories of victims: (1) families of victims of political violence, political executions, and disappeared detainees; (2) victims of human rights violations; (3) returning exiles to Chile; (4) political prisoners; (5) the politically dismissed; (6) peasants excluded from agrarian reform or expelled from their land; and (7) the tortured.34 Of these categories, 28 Andrew McGregor, Development, Foreign Aid and Post-Development in Timor-Leste, 28 Third World Quarterly 155 (2007).

29 See infra Section III “Developing a Timeframe for Reparations.”

30 Dealing with the 2006 Internal Displacement Crisis in Timor-Leste, International Center for Transitional Justice (2012).

31 Jorge S. Correa, Dealing with Past Human Rights Violence: The Chilean Case after Dictatorship, 67 Notre Dame L. Rev. 1455 (1992).

32 Id. 33 National Commission for Truth and Reconciliation, Report of the Chilean National Commission on Truth and Reconciliation 1057 (1991).

34 Elizabeth Lira, The Reparations Policy for Human Rights Violations in Chile in The Handbook of Reparations 55, 55–101

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Adequate, Effective, and Prompt a pension program was instituted for families of victims of political violence, execution, or disappearance; the politically dismissed; and peasants. The pension for the victims of political violence, executions, or disappearance was the most direct form of individual payment. It amounted to 226,667 Chilean pesos, roughly $537. The law outlined the amounts received by various members of a victim’s family, which were determined as percentages of the full amount. Initially, pensions were paid to 5794 beneficiaries by the Institute of Pension Normalization, but this number diminished over time. Ultimately, the Chilean government spent the equivalent of $8,240,905 on these pensions between 1992 to 2001. The program for the politically dismissed awarded tax-free pensions to 40,696 persons, though its budget was limited to under $450,000 by 2003. Those who receive pensions through this program as their only source of income do not see it as adequate enough for survival. Furthermore, though a pension program for peasants was initiated, it did not recover lost land, and the program had stalled

by October 2004.35 The various pension programs were intended to be compatible with other forms of remedy.

For example, the Program of Reparations and Comprehensive Health Care for Victims of Human Rights Violations (“P.R.A.I.S.”) was established to provide accessible health care to victims of human rights violations.36 In addition, the National Office for Returning Exiles provided logistical support and social services to those returning from exile, but it ceased operations in 1994.37 While Chile’s reparations programs began the process of implementation and yielded tangible results, large portions of victims, including political prisoners, were left out, and many of the programs did not see adequate follow-through.38 Although the period of time between the conclusion of the Truth and Reconciliation Commission’s investigations and the commencement of reparations was relatively short and could satisfy the requirements of “prompt,” it must also be noted that many of the victims had been suffering for years before the work of the commission. While Chile can be seen as an example of a rudimentary individual reparations case, it should not be held up as an example for other countries to follow. Rather, future programs should be built using Chile’s substantive foundations as a guide.

C. Morocco During the reign of King Hassan II in Morocco (1961-1999), a number of human rights violations took place, including forced disappearances, torture, and sexual violence. When Hassan II’s son, the current king, Mohammed VI, came to power, he sought means of change and reconciliation for the violations that took place under his father. The Equity and Reconciliation Commission (“I.E.R.”) was established by Mohammed VI and the Moroccan government in November of 2003.39 It resolved 742 cases of forced disappearance and was succeeded by the National Council on Human Rights, which was tasked with continuing the implementation of the I.E.R.’s recommendations. Civil society groups were very active in the shaping of the commission’s activities, leading the commission to address basic systemic inequalities in addition to collective and individual reparations.40 (Pablo de Greiff ed., Oxford University Press 2006).

35 Id. 36 Id. 37 Id. 38 Priscilla B. Hayner, Chile 1: National Commission on Truth and Reconciliation, 1990–1991 in Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions 47, 47–49 (2nd ed., Routledge 2011).

39 Morocco Still a Model for Justice in MENA, but Questions Remain, International Center for Transitional Justice (Feb. 8, 2016), https://www.ictj.org/news/morocco-still-model-justice-mena-questions-remain.

40 Id.

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Adequate, Effective, and Prompt

Unlike a majority of truth commissions, which typically recommend reparations programs for future implementation, the I.E.R.’s mandate included provisions allowing it to decide on individual reparations cases. It processed over 20,000 applications, ultimately granting financial compensation to 9779 victims of human rights violations.41 Furthermore, the I.E.R. granted individual regions collective reparations aimed at combating the direct and indirect effects of violence.42 This unique ability streamlined the implementation of reparations because the commission did not need to rely on a secondary entity to fulfill its recommendations.

Morocco remains one of the best examples of a reparations program to date. In addition to financial reparations, victims were granted medical insurance plans.43 According to analysis based on Pablo de Greiff ’s “ascending order of munificence,” Moroccan reparations were relatively more generous than those given to victims of Japanese-American internment in the United States.44 The country’s collective reparations that sought to take on the issue of marginalization in society were unprecedented in the field of transitional justice. These collective measures pair well with the individual reparations to ensure all aspects of remedy are covered.

Though the implementation of Moroccan individual reparations was extremely effective, some have questioned the success of the program due to a lack of evidence from recipients. For the purposes of this paper, however, which seeks to provide a framework for the implementation of reparations based on requirements by international law, Morocco provides an example of the possibility of fulfilling these standards. The above case studies consider the success of reparations programs from an institutional standpoint through the mandate, scope, and institutional efficiency of the programs.

The following sections discuss reparations with a focus on victims in order to bridge the gap between theory based on both institutional functions and victim needs.

Developing a Timeframe for Reparations While it is evident from the preceding case studies and other instances of reparations that these programs are often not implemented for many years following the conflict, this does not mean that this timeframe is standard or humane. Using basic data such as gross domestic product (“G.D.P.”) per capita, household wealth per adult, and household consumption expenditure, I show that there exists a limited number of years that a family can survive without reparations. Given this fact, if the government does not initiate reparations before this timeframe, a family will be unable to afford basic necessities outlined in the Universal Declaration of Human Rights as unalienable. These include “standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.”45 If reparations are not provided within a given period of time, the government is at fault for preventing victims from having access to these necessities, and thus violates victims’ human rights another time over.

To illustrate the financial situation of victims, I gathered data from the World Bank and the Credit Suisse Global Wealth Report. To determine how much an average family would lose if they lost 41 Moroccan Equity and Reconciliation Commission, Summary of the Contents of the Final Report (2005).

42 Id. 43 Priscilla B. Hayner, Morocco: Equity and Reconciliation Commission, 2004–2006 in UNSPEAKABLE TRUTHS: TRANSITIONAL JUSTICE AND THE CHALLENGE OF TRUTH COMMISSIONS 42, 42–44 (2nd ed., Routledge 2011).

44 Susan Slyomovics, Reparations in Morocco: The Symbolic Dirham in Waging War and Making Peace 95, 95–114 (Left Coast Press, Inc. 2009).

45 G.A. Res. 217 (III)A, Universal Declaration of Human Rights 25.(1) (Dec. 10, 1948).

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Adequate, Effective, and Prompt their main source of income, I assume annual income to be zero during the period of violation. This assumption represents a loss of a wage earner and could be an indefinite or temporary situation if a family’s main source of income is able to return to work after a given period of time. I then analyze the

household consumption expenditure per capita, dividing this from the household wealth per adult to determine how many years a family is able to live off of the wealth it currently possesses. After this period of time, a family would no longer be able to afford basic necessities without reparations or a return to normal work.

Table 1 breaks down this value by region and in the three case study nations. As is expected, the regions with a higher G.D.P. per capita tend to have a higher proportion of wealth as compared to consumption. Thus, those families living in regions such as Europe, North America, parts of the Asia-Pacific region, and China are able to subsist longer without reparations—as many as sixteen years. On the other hand, families living in the case study nations of Morocco and Timor-Leste, as well as in India, Latin America and the Caribbean, and Africa are only able to survive for up to five years. Thus, in these nations, the timeframe for reparations would need to be drastically shorter.

Table 1. Determining the Years Able to Live Without Reparations Based on Income, Wealth, and Expenditure 46 Country/Region

Timor-Leste Morocco Chile Asia-Pacific47 India North America Latin America and Caribbean China Europe Africa

GDP per capita (USD)

Household Wealth per Adult (USD)

Household final Years Able to consumption exLive Without penditure per capita Income or Rep(private consumption arations per capita) (USD)

$2035.50 $3237.90 $15,923.40 $7865.92 $2015.60 $60,976.80 $9023.50

$2513.00 $9305.00 $62,222.00 $48,119.00 $7024.00 $391,690.00 $18,605.00

$634.00 $1987.00 $9415.00 $4009.06 $1191.00 $36,264.00 $6171.00

3 4 6 12 5 10 3

$9770.80 $37,718.72 $1817.15

$47,810.00 $144,903.00 $4138.00

$2893.00 $14,446.00 $1129.83

16 10 3

Variables that could affect these data include fluctuations in expenditure, particularly if a family is rebuilding following violence or is in need of expensive healthcare. If a family has multiple sources of income, the number of years it is able to survive may be slightly higher than is the average for the region.

Likewise, if a victim is able to return to work after a period of time, reparations would only need to account for the income lost during that time period. The number of children in a family can also affect these figures, though this is beyond the scope of this basic framework and would require further empirical data. Governments must also recognize that, often, victims are of a certain subset of the population that do not reflect the average financials of the broader population. This should be taken into account when the amount of time a 46 World Bank, GDP per capita (current US$) (2018). World Bank, Households and NPISHs Final consumption expenditure (current US$) (2018). Credit Suisse Research Institute, Global Wealth Report (2018). The result of the calculation of years was rounded down to the nearest whole year.

47 The data for the Asia-Pacific Region does not include India or China due to their large populations. They are considered separate regions.

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Adequate, Effective, and Prompt family is able to live without reparations are calculated.

There are several problems that arise when examining these timeframes. Realistically, the current mechanisms of transitional justice do not work fast enough to accommodate these limits. Truth commissions, which are often the entities that recommend the implementation of a reparations program, often take years to formulate their reports. Furthermore, some conflicts or atrocities take years to be acknowledged formally by the government, which delays the implementation of a truth commission or separate reparations program. In order to combat this, reparations programs must be initiated in conjunction with other transitional justice mechanisms.

The first step of any transitional justice body must be to ensure the means of subsistence before outlining more durable methods for reconciliation. This also ensures that reparations are not the only means by which families receive “remedies,” but that they are simply the tangible beginning.

The Reparations Formula Given that there exists a time limit after which a lack of reparations constitutes a second violation of one’s human rights, it is imperative that a basic formula for reparations exists to set a precedent for nations seeking to implement a reparations program. The reparations formula includes many dynamic components, including an assessment of income and assets lost as well as financial compensation for lost income, damages, legal, medical, and psychological services. Furthermore, if a family has lost a main source of income, a pension or social security system should exist to ensure its long-term financial stability. [annual income x (number of years of lost income)] + lost assets + cost of legal, medical, and psychological services = individual reparations To achieve the distribution of reparations that this formula would require, which is inevitably different for each victim, a nation would likely need to set up a separate, reparations-specific agency. This body would act as a part of a government’s bureaucracy, address claims for reparation, and aid victims in filing their claims.

Given that each government has a unique financial situation, reparations may have to be paid over varying periods of time; however, the government must do so in a manner that does not withhold financial assistance to those in immediate need. Further, the government must begin paying within the timeframe outlined above.

Reparations as a Part of a Whole Reparations are only a part of the greater transitional justice process. Often, financial and social service reparations are symbolic of a greater process of creating a better future for those forced to live with the consequences of the violations of which they were victims. Targeted reparations are the most direct way to influence individual lives and provide compensation for the atrocities of the state.

This is not to say that other forms of remedies are not important in the overall process of healing.

Collective forms of reparations such as apologies, memorials, and community-oriented programs can have symbolic benefits that expand upon the material benefits provided by financial reparations. The set of recommendations given by truth commissions or similar bodies provide a broader understanding of the conflict and place individual reparations programs in the context of the whole. Furthermore, economic reparations alone can contribute to social instability, as is demonstrated by the Chilean reparations program.48 Collective and individual remedies are mutual and inseparable for long-term stability.

With the understanding that financial reparations are not the only necessary form of remedies, I maintain that they are the most tangible and urgent. The right to reparations is one of the only methods through 48 Elizabeth Lira, The Reparations Policy for Human Rights Violations in Chile in The Handbook of Reparations 55, 55–101 (Pablo de Greiff ed., Oxford University Press 2006).

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Adequate, Effective, and Prompt which an individual has the ability to hold their government accountable to international human rights law. It is indeed one of the only methods by which victims can seek justice in a way that is productive and beneficial to them. Trials, tribunals, and other justice mechanisms are not as efficient, nor do they focus on the victim’s needs. Because reparations are so vital to victims, this paper contends that reparations do exist on the clock.

They should be understood as an unalienable right so that governments cannot stall, and they should be considered the first customary step by which other forms of remedy will follow.

Recommendations Given the framework outlined in this paper, there are clear measures that future post-transition governments should take to ensure the proper implementation of reparations. The following recommendations provide broad guidance for the implementation of a reparations program that complies with international law and the interpretation presented in this paper. Each case is inevitably distinct; thus, these recommendations offer flexibility without sacrificing adherence to the most basic principles of human rights law.

1. The right to reparations is clearly outlined in international law as unalienable and must be acknowledged by all nations as a customary norm.

2. States should seek to establish truth commissions or other transitional justice mechanisms immediately following a period of conflict or violence. The first focus of the transitional justice entity should be on reparations.

3. The timeline outlined above should be taken into account, based on the nation’s average income, wealth, and expenditure. The initiation of the reparations program should not surpass the number of years that the average victim can survive without reparations.

4. If it is projected that the truth commission or other entity will not be able to meet this deadline, a reparations program should be instituted separately, due to its urgency, before the final report is released.

The government commits another human rights violation for each year they are not initiated, causing even further reparations to be due.

5. Given the urgency of reparations, if a government is unable to afford a comprehensive reparations program, it must look outward to temporarily fund it. Since the right to reparations is a fundamental right, this right must not be violated, regardless of the government’s ability to pay.

6. Governments should create post-transition agencies with the sole purpose of processing requests for reparations in accordance with the program outlined by mechanisms of transitional justice.

7. Individual reparations should factor in annual income, lost assets, and cost of medical, legal, and psychological services.

8. Reparations should not discriminate against any particular subset of victims, though additional measures can be taken into account, such as gender and age, when determining the reparations formula, since these victims may have suffered additional violations and post-conflict hardships.

9. An individual reparations program must be paired in all cases with a form of collective and symbolic reparation.

IV. CONCLUSION For victims of mass violence and crimes against humanity, often, recovery is never truly achieved.

Though collective reparations can be symbolic and can help facilitate reconciliation, many victims and their families lack basic necessities that only individual reparations programs can provide. The current legal basis both in treaty law and case law supports the right to reparations. Furthermore, this right is increasingly accept-

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Adequate, Effective, and Prompt ed as customary.49 Thus, it has become an unbreakable norm of international law by which all governments must abide. The right to reparations would not be relevant without a timeframe attached to it, as only then can reparations fulfill their purpose. As outlined in this paper, if a government waits too long to issue reparations, victims will be deprived of basic necessities, which constitutes a subsequent violation of victims’ human rights.

This paper offers numerous insights into the right to reparations in the context of transitional justice and proposes novel approaches to determining the substance and timeframe of reparations. I acknowledge that this paper does not fill all of the gaps in this field as it would simply be impossible. Further research on this topic might analyze the difference between reparations for violations committed during wartime and violations due to systematic oppression. There is also likely a difference in what reparations are composed of when they are not in the context of transitional justice, thus the formula outlined above may include constraints. Furthermore, the right to freely access information concerning violations is often referenced in conjunction with the right to reparations. Whether reparations are “adequate” without this information is another point of consideration.

Ultimately, the basis of the research presented in this paper is intended to have tangible implications.

The issue of reparations is inevitably connected to the suffering of millions. Admittedly, only a fraction of this suffering can be ameliorated by various forms of remedies due to the very nature of loss. Though no amount of financial compensation can account for the anguish that victims face, it is a mechanism of accountability and justice that gives individuals a sense of internal reconciliation and holds states accountable for their violations of international law. Reparations begin the process of recovery and give way to the reclamation of a self-determined life, the most fundamental of human rights.

49 Christine Evans, The Right to Reparation in International Law for Victims of Armed Conflict 238 (Cambridge University Press 2012).

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Israel’s Attorney-at-Law:

U.S. Congress and the Anti-Terrorism Clarification Act

Philippa O’Hagan Georgetown University Abstract In 2018, Senator Chuck Grassley of Iowa introduced the Anti-Terrorism Clarification Act to amend his earlier law, the Anti-Terrorism Act of 1992. The U.S. Congress regularly passes pro-Israeli, anti-terrorist, and “tough on Palestine” legislation as a routine matter. The major difference, however, is that it had the unforeseen effect of severing bilateral aid to Palestine in its entirety, catching many of the senators who voted it into law by surprise. Seemingly benign and clarifying in nature, this law subsequently ended all U.S. bilateral aid to Palestine in January 2019. How did this happen, and was it deliberate? This paper will examine the legal underpinnings and implications of the law in an effort to explain its controversial outcome.

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Israel’s Attorney-at-Law I. INTRODUCTION When Israeli Prime Minister Benjamin Netanyahu appeared in front of a joint session of the U.S. Congress in 2011, he received twenty-nine standing ovation.1 He shook hands with Republicans and Democrats alike, and joined the likes of Winston Churchill as one of the few foreign leaders to ever address the U.S. Congress more than once.2 Evidence of America’s special relationship with Israel is visible at all levels of American government. Nowhere is it more evident than in the U.S. Congress, especially among the Republican Party.

In 2018, Republican Senator Chuck Grassley introduced the Anti-Terrorism Clarification Act (“A.T.C.A.”) to amend a previous law that he had written, the Anti-Terrorism Act (“A.T.A.”).3 Seemingly benign, and clarifying in nature, this law subsequently ended all U.S. bilateral aid to Palestine in January 2019. The U.S. Congress regularly passes pro-Israeli, anti-terrorist, and “tough on Palestine” legislation as a routine matter.

How did this change happen, and was it deliberate?

The U.S. Congress, while still uniformly in support of Israel, is pulling in two different directions internally, as support for Israel and Palestine begins to mean different things to Republicans and Democrats. The A.T.C.A. and its wide-ranging ramifications expose the hyperbolic, rightward shift of Republicans toward Israel to the point that the law has inadvertently put Israel’s interests at risk. This also signals to Palestine that the United States no longer views it as an equal negotiating and diplomatic partner, shifting away from the two-state status quo towards a de facto one-state solution.

II. BACKGROUND

For most Americans, collective memory marks September 11, 2001 as the first time that terrorism affected the United States and its citizens. Others, however, might remember the highly publicized and tragic death of Leon Klinghoffer, the lone American victim aboard the Italian cruise ship, Achille Lauro, that was hijacked by militants associated with the Palestinian Liberation Front in 1985.4 Still others would point to the 1988 bombing of Pan Am Flight 103 by Libyan intelligence officials that left 270 dead.5 It is out of these two earlier tragedies that the 1992 Anti-Terrorism Act, and the prospect of compensation for victims of international terrorism, was born. As the most powerful nation in the world, the United States has sought to demonstrate its protective hand at home and abroad, shielding its citizens from harm and extracting punitive damages otherwise.

The Taylor Force Act was born from similar circumstances, named and passed in honor of U.S. Army veteran Taylor Force, who died in a stabbing attack in Tel Aviv in March of 2016.6 This piece of legislation followed a long-established trend of conditioning foreign assistance to Palestine on the renunciation of terrorism.

In this case specifically, the United States stated that certain portions of its bilateral assistance would not be provided unless the Palestinian National Authority agreed to immediately cease payments to the “Palestinian Authority Martyr’s Fund.”7 This fund compensated the family members of the assailants in the attack that killed Force.8 Adding insult to injury, in the same year as Force’s death, the Second Circuit Court moved to vacate a $655.5 million judgement to a group of American families in Sokolow v. Palestine Liberation Organization under the 1 Amnon Cavari & Elan Nyer, From Bipartisanship to Dysergia: Trends in Congressional Actions Toward Israel, 19 Isr. Stud. 1, 4 (2014).

2 Id., at 4.

3 Kent A. Yalowitz, The Constitutional Power of Congress to Provide for Extraterritorial Jurisdiction in Civil anti-Terrorism Matters, 29 Ind. Int’l & Comp. L. Rev. 369, 371 (2019).

4 Richard Pallardy, Achille Lauro Hijacking, Encyclopædia Britannica (2010), https://www.britannica.com/event/ Achille-Lauro-hijacking.

5 FBI, Remembering Pan Am Flight 103, FBI (December 14, 2018), https://www.fbi.gov/news/stories/remembering-panam-flight-103-30-years-later-121418.

6 H.R.1164, 115th Cong. §4 (2018).

7 Id. 8 Id.

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Israel’s Attorney-at-Law A.T.A.9 These instances prompted the A.T.C.A. in an effort to strengthen American citizens’ capacity to right foreign wrongs and prosecute their assailants in American courts. So what did the A.T.C.A. do that the A.T.A. did not? And how did it subsequently torpedo U.S. bilateral aid to Palestine?

Let me now define specific jurisdiction, as it serves as the key differentiator between these two pieces of legislation. Specific jurisdiction is “the power that a court has to make a decision regarding the party being sued. Before a court can exercise power over a party, the U.S. Constitution requires that the party has certain minimum contacts with the forum in which the court sits.”10 The court does this by conducting a traditional two-part jurisdictional analysis.11 This analysis often includes consideration of “traditional notions of fair play and substantial justice.”12 For the purposes of the present discussion, this delineates whether or not a court in the United States can exercise power over the Palestine Liberation Organization (“P.L.O.”) and Palestinian National Authority (“P.A.”).

The Anti-Terrorism Act of 1992 allowed U.S. citizens to pursue civil actions for injuries resulting from “acts of international terrorism,” but did not provide or guarantee specific jurisdiction.13 The establishment of jurisdiction was left to the judge through traditional two-part analysis. In recent years, the U.S. Supreme Court has made a significant effort to limit both general and specific jurisdiction, thus making it uncertain whether or not specific jurisdiction would have been granted.14 The Anti-Terrorism Clarification Act of 2018, however, eliminates this uncertainty and establishes specific jurisdiction as a condition of accepting three different types of aid from the United States. Essentially, in accepting the aid, the recipient consents automatically to specific jurisdiction without a judge establishing it.

The best way to illustrate and amplify this difference between the A.T.A. and the A.T.C.A. is to examine them in light of Sokolow v. PLO. In 2004, eleven American families, collectively known as “Sokolow” filed suit in the Southern District of New York against the P.L.O. and the P.A.. They brought their suit under the A.T.A. and alleged that the P.L.O. and P.A. were responsible for the deaths and injuries sustained by their relatives across several terror attacks in Jerusalem between 2002 and 2004.15 As suable legal entities, the P.L.O. and the P.A. are difficult to define. Together, they comprise Palestine, but legally they act as two separate defendants.16 The Palestinian National Authority is “the non-sovereign government of parts of the West Bank and the Gaza Strip,” while the Palestine Liberation Organization carries out the government’s foreign affairs, including the operation of its missions, embassies and delegations in other countries.17 To claim compensation for their losses, the plaintiffs needed to establish specific jurisdiction. The New York Southern District judge thus conducted the jurisdictional analysis. At the time of the attacks, the P.L.O. had two missions in the United States, one in New York and one in Washington, D.C. The mission in New York was exempt due to its involvement with the United Nations which granted it immunity. The mission in Washington, D.C. was deemed a “substantial commercial presence,” fulfilling the minimum contacts, and even amounting to “continuous and systematic” contact required for specific jurisdiction to be established.18 Additionally, it was acknowledged by the judge that the United States has a “strong inherent interest in litigating ATA cases.”19 The plaintiffs were awarded $218.5 million, which was tripled under the provisions of the A.T.A. to a

9 Waldman v. Palestine Liberation Organization, 130 Harv. L. Rev. 1488 (2017).

10 Legal Information Institute, Personal Jurisdiction, Legal Info. Inst., https://www.law.cornell.edu/wex/personal_jurisdiction.

11 Waldman v. Palestine Liberation Organization, supra note 9.

12 Id. 13 Yalowitz, supra note 3, at 380.

14 Waldman v. Palestine Liberation Organization, supra note 9.

15 Id. 16 Id. 17 Id. 18 Id. 19 Id.

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Israel’s Attorney-at-Law total of $655.5 million.20 Unsurprisingly, the P.L.O. and the P.A. objected and moved to reverse the judgment, taking it to the Second Circuit.21 To the surprise of Senator Grassley and many others, the Second Circuit vacated the judgment, following suit under the growing American judicial trend to limit general and specific jurisdiction.22 The judge stated there were no grounds upon which to suspect direct attack-related conduct was carried out on U.S. soil, and thus no grounds upon which to render specific jurisdiction.23 In the judge’s opinion, Americans had been “affected randomly and fortuitously.”24 Thus the Anti-Terrorism Clarification Act was designed to eliminate the unreliability of establishing specific jurisdiction and to facilitate American victims’ receipt of deserved compensation, specifically from the P.L.O. and the P.A..25 Senator Grassley, the mind behind the A.T.A., returned to his cause with new zeal, drafting the clarifying piece of legislation with extraordinarily far-reaching consequences.

The Anti-Terrorism Clarification Act allows U.S. citizens to bring lawsuits against the P.L.O. and P.A. by legislating “consent” to the establishment of specific jurisdiction upon acceptance of three kinds of U.S. economic aid.26 Coincidentally, these were the exact three types of aid that Palestine was still receiving from the United States: International Narcotics Control & Law Enforcement (“I.N.C.L.E.”); Non-proliferation, Anti-Terrorism, Demining and Related Programs Aid (“N.A.D.R.”); and the P.L.O.-specific waiver that had allowed the P.L.O. to maintain its presence in the United States until the A.T.C.A. was passed. Coincidentally, none of the significant foreign aid given by the United States to Israel falls under these categories.27

Here, the intentions and subsequent consequences of this legislation become unclear. In assuring U.S. victims of international terrorism a swift and secure path to compensation, did this legislation also intend, perhaps secretly, to manipulate Palestine out of all bilateral aid without formally rescinding it?

Palestinian Prime Minister Rami Hamdullah recognized that continuing to accept bilateral aid from the United States meant opening his government up to expensive lawsuits that could potentially subsume their entire budget.28 Thus, with his hands effectively tied, Palestine stopped accepting all aid from the United States on January 31, 2019.29 For the first time since 1994, Palestinians did not receive any aid from the United States, their long-time mediator and negotiating partner.30

III. THE IMPLICATIONS OF A.T.C.A.

This decision will have enormous implications not just for Palestine and Israel, but for the United States as well. For Palestine, this means losing one of its largest sources of foreign aid, and a significant pillar of its budget as a result. Israel has a vested interest in the continuation of I.N.C.L.E. aid for Palestine because it provides for their security cooperation. As for the United States, the enactment of this law significantly jeopardizes its status as historic third party to the peace process. The specific jurisdiction provision of this law also extends to and implicates all other countries to which the United States provides these three kinds of 20 Id. 21 Id. 22 Id. 23 Id. 24 Id. 25 Lara Friedman, Legislative Round-Up, Found. for Middle East Peace (Oct. 4, 2018), https://fmep.org/resource/ fmep-legislative-round-october-4-2018/.

26 Id. 27 Id. 28 Id. 29 Id. 30 Jim Zanotti, Cong. Research Serv., IN11025, Anti-Terrorism Clarification Act of 2018 (P.L. 115-253) and U.S. Aid for the Palestinians 1 (2019).

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Israel’s Attorney-at-Law aid, potentially jeopardizing relationships across the globe.31 Above all, since questions of specific jurisdiction have now been congressionally tied to aid and Palestine has disconnected itself from that aid, the United States has been left with no avenue through which to establish specific jurisdiction and pursue compensation, the exact opposite of the law’s stated aims. Each of these implications will be discussed at length later. What the A.T.C.A.’s passage says about the state of partisanship in Congress on issues relating to Israel and Palestine is worthy of exploration first.

The passage of the Anti-Terrorism Clarification Act was characterized by a surprising lack of controversy, questioning, and debate. The bill was introduced in the Senate at the end of May 2018, after which it went to the Judiciary Committee where author Senator Grassley presided as chairman.32 From there it went back to the Senate in August and was passed by voice vote, a procedure generally reserved for uncontroversial legislation.33 Next, the bill passed the House without objection. The A.T.C.A. was signed into law by President Donald Trump on October 3, 2018, completing the process almost entirely under the radar.34 Its passage was met with little fanfare and media attention at first.

Not long after its passage, however, reality caught up with the bill. Once the full extent of the consequences of the A.T.C.A. came to light in Congress, there was much surprise and confusion.35 On both sides of the aisle, members expressed confusion over how a piece of legislation understood to be routine, and frankly inconsequential, had severed important bilateral aid. Great fervor over how to undo or fix the legislation ensued.36 The shared shock and surprise, however, filters into separate camps upon further examination. Lara Friedman, president of the Foundation for Middle East Peace, has used a particularly effective metaphor to describe the situation. A.T.C.A. passes, consequences abound, and the forest is on fire.37 Republicans want to save a few trees for a few reasons, and Democrats want to save a few other trees for obviously different reasons, but the entire forest, nonetheless remains, on fire.38 Democrats, for example, may genuinely want to assist the Palestinians and maintain refugee aid, while Republicans are concerned with unwittingly destabilizing Israel and, now backtracking, want to maintain I.N.C.L.E. aid. Then we must ask, where does Congress actually stand on issues of the Israeli-Palestinian conflict? And how can that stance explain this outcome?

Congress has long symbolized the “epicenter of pro-Israel sentiment in American politics.”39 It has historically voted on issues related to Israel and Palestine with enthusiastic bipartisan consensus.40 The support has been so significant as to be called “a puzzling exception to congressional involvement and interest in the realm of foreign policy. Members of congress have consistently debated and passed resolutions in support of Israel and in repudiation of its foes in a bipartisan fashion.”41 Recently, however, a division in this unity has reared its head, amounting to a growing “incoordination between Democrats and Republicans in how they express their support for Israel.”42 This means that while “support for Israel still transcends partisan divisions, members of Congress are increasingly expressing their support with partisan resolutions.”43 31 Friedman, supra note 25.

32 Americans For Peace Now, The Anatomy of ATCA, PeaceCast (Feb. 8, 2019), https://peacenow.libsyn.com/71-theanatomy-of-atca.

33 Yalowitz, supra note 3.

34 Id., at 380.

35 Americans For Peace Now, supra note 32.

36 Id. 37 Id. 38 Id. 39 Khaled Elgindy, Blind Spot: America and the Palestinians, From Balfour to Trump 257 (The Brookings Institution, 2019).

40 Cavari & Nyer, supra note 1, at 1.

41 Id. 42 Id., at 2.

43 Id.

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Israel’s Attorney-at-Law Two scholars, Amnon Cavari and Elan Nyer, conducted a study of congressional behavior on issues related to Israel and Palestine from 1973 through 2012. Cavari and Nyer found that since 9/11 Republicans and Democrats, and even the American public, have diverged considerably in their attitudes toward Israel and their ideas about American interests in the Middle East. They found this could be explained by “the polarization of party elites on every significant domestic and foreign policy, and the political alignment of religious cleavages.”44 Essentially, the emerging split between Republicans and Democrats on the specifics of the approach to Israel and Palestine is inextricably linked to general political trends affecting both parties.

In recent years, the Republican Party has made a noticeable shift to the right characterized by increasingly conservative policies overall, triumphalism, and hyperbolic praise for Israel. Support for Israel has appeared increasingly in presidential election campaigns and general party rhetoric, becoming a “core ideological position” for all members of the party, “elite and mass alike.”45 This position has become increasingly extreme, in part due to their association, and alignment with evangelical Christians. Evangelical Christians, although a small religious minority, are highly vocal and exercise disproportionate influence in the Republican Party. The two groups share “hawkish views” in relation to Islam, terrorism, and the Middle East generally. According to Cavari, “Evangelical leaders found contemporary political meaning in God’s gift, exhorting Israel’s leadership never to give up any territory to the Palestinians or any Arab nations.”46 This assured them of continued, increasingly extremist, U.S. support. Each of these details helps explain the majority Republican sponsorship, and authorship, of the A.T.C.A. Beginning in the 111th Congress (2009-2011), Cavari and Nyer find evidence of increasing levels of support for Israel in the Republican Party, while Democrats begin declining to pre-9/11 levels.47 Democrats, though still strongly supportive of Israel, can count more champions of Palestine among its ranks, particularly among its younger, more liberal members.48 This is representative of the party’s general shift to the left, although proportionally less severe than the Republican shift.49 Some of today’s divide between Republicans and Democrats can also be traced back to the Iraq war. Democrats are more dovish and isolationist, in comparison to their hawkish Republican counterparts, and they increasingly see the world through the lens of economic and humanitarian dangers.50 Democrats are increasingly “framing the current debate on Israel and Palestine in terms of American values.”51 In the 111th, as well as 112th Congress (2011-2013), Democrats continued to mutually co-sponsor support for Israel in Congress: “A few of these resolutions include[d] supporting Israel against boycott, funding the Iron dome, reaffirming unequivocal support for the alliance and friendship between the U.S. and Israel, recognizing Israel’s right to defend itself from Gaza, Iran’s threat reduction and even some resolutions relating to peace.”52 As of 2019, this Democratic support includes the A.T.C.A., which counted four out of the eleven co-sponsors as Democrats.53 Under the same umbrella of supporting Israel, each party is choosing to prioritize different things, and thus is increasingly working independently to achieve their aims. Republicans are demonstrating a “hawkish approach towards the more sensitive issues in the region,” while Democrats are emphasizing the “need to resume peace talks and protect human and civil rights.”54 This helps explain the hardline Republican pursuit of specific jurisdiction for American victims of international terrorism, especially at the hands of Palestinians. It is harder 44 Id., at 9.

45 Id. 46 Id., at 10.

47 Id. 48 Id. 49 Id. 50 Id., at 9.

51 Elgindy, supra note 39.

52 Cavari & Nyer, supra note 1, at 19.

53 S.2946, 115th Cong. § 2 (2018).

54 Cavari & Nyer, supra note 1, at 20.

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Israel’s Attorney-at-Law to claim that this accounts for a Republican desire to cut Palestinians off from a vital source of aid, although not entirely impossible.

Legislation since 1987 reveals a long track record of Congress’s commitment to deterrence and disruption of terrorism, specifically that which is perpetrated by the P.L.O.. This legislation most often conditioned foreign assistance upon suspension of terrorist activities. If the withdrawal of bilateral aid is understood as an intended consequence, then the Anti-Terrorism Clarification Act is not a departure in substance, but rather in style.

First in 1987, Congress recognized that “the PLO and its affiliates are a terrorist organization and a threat to the interests of the United States, its allies and to international law and should not benefit from operating in the United States.”55 Then in 1990, Congress enacted the P.L.O. Commitments Compliance Act, which restated that the basis of any dialogue or recognition was the renunciation, and moreover, cessation, of terrorism. Under this act, Congress first raised the issue of whether or not “the PLO would provide ‘compensation to the American victims or the families of American victims of PLO terrorism’.”56 1990 also witnessed the amendment of the Immigration and Nationality Act “to exclude any officer, official, representative, or spokesman of the Palestine Liberation Organization because such persons are ‘considered to be engaged in a terrorist activity’ as a matter of law.”57 Then, as has been discussed, came the A.T.A. in 1992 allowing civil suits for compensation, and opening up the issue of specific jurisdiction in federal courts.58 By 2002, Congress had imposed a permanent set of conditions that Palestine has to comply with in order to receive assistance and maintain a presence in the United States which remain in place today.59 Various other anti-terror conditions have been levied over the years, including the 2018 Taylor Force Act, which imposed additional anti-terror conditions on U.S. aid to Palestine.60 The A.T.C.A., thus, is not a shocking departure from an already established legislative trend. It is instead an exaggerated continuation of the trend, and a poorly executed piece of legislation on the part of the Republican Party. In attempting to further punish Palestine for acts of terror as part of the broader narrative of overzealous Israeli support, the Republicans have inadvertently affected Israel’s security and stability; their two greatest regional concerns.

Today, with a majority Republican Congress, the significance of this shift is amplified and acts as a symptom of a larger problem, one that despite popular belief has nothing to do with President Trump. Beginning with President Bill Clinton, each American president has been increasingly pro-Israel, if not in rhetoric then in action. Under President Barack Obama, aid to Israel reached an all-time high, with the passage of a $38 billion package to be spread out over the next decade.61 Conversely, aid to Palestine has totaled $5 billion cumulatively since 1994.62 The United States has served to worsen the already profound imbalance in security, in gross domestic product, in political power and autonomy, and in viability between Israel and Palestine through an enormous discrepancy in aid.

The implications of the A.T.C.A. for Israel start and end with security. None of the aid Israel receives from the United States falls within the three categories targeted by the law; Israel, strategically, receives Foreign Military Financing (“F.M.F.”), Migration and Refugee Assistance (“M.R.A.”), and funding from the Department of Defense.63 Israel does, however, benefit from Palestine’s acceptance of I.N.C.L.E. aid for their security cooperation and thus has a vested interest in seeing it continue. Israeli officials have long supported U.S. security 55 Yalowitz, supra note 3, at 380.

56 Id., at 381.

57 Id. 58 Id., at 380.

59 Id. 60 H.R.1164, supra note 6.

61 Jonathan Rynhold, US-Israel Relations: Beyond the $38 Billion, Begin-Sadat Ctr. for Strategic Stud. (September 27, 2016), https://besacenter.org/perspectives-papers/366-rynhold-us-israel-relations-beyond-38-billion/.

62 Zanotti, supra note 30.

63 Friedman, supra note 25.

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Israel’s Attorney-at-Law assistance as a way to improve security within the West Bank and encourage closer cooperation between Israeli and Palestinian security forces. Without I.N.C.L.E., and U.S. assistance broadly, instability in the West Bank and Gaza is bound to increase. On January 14, just two weeks before Prime Minister Hamdullah announced that Palestine would no longer be accepting U.S. bilateral aid, outgoing Israeli Defense Force Chief of Staff Gadi Eisenkot gave his farewell remarks, reportedly urging the government to strengthen Palestinian Authority security forces.64 He made note of a recently thwarted Hamas attack in the West Bank and said economic growth was key to stability in the West Bank.65 The A.T.C.A. imposes negative impacts on both the economic and security fronts. U.S. Army Lieutenant General Eric Wendt, who serves as U.S. Security Coordinator for Israel and Palestine, also urged Congress to find a way to continue the aid and suggested Israeli backing, as “no one wanted a security crisis in the West Bank.”66 In some ways, the A.T.C.A. represents the end of the two-state solution for Palestine. Beyond the enormous financial loss, Palestine has received the message loud and clear that the United States is on Israel’s side.

It is no longer a question of disproportionate favoring. The position that the A.T.C.A. has placed Palestine in amounts to abandonment and may permanently damage the relationship between the two countries.

For the United States, the implications are injurious as well. By inadvertently or intentionally cutting the Palestinians off from U.S. assistance, it has increased the prospect of regional instability and jeopardized its position as the one and only third party to the conflict with the ability to mediate. Within that position, the United States is meant to act evenhandedly, but for many years has been demonstrating a stark and deliberate preference for the concerns and well-being of Israel, often at the cost of Palestinian viability. Whether or not this damage can be done remains uncertain. On one hand, the Palestinians now have virtually no incentive to return to the negotiating table with the United States and have no reason to trust its intentions. On the other hand, they cannot afford to turn away potential bargaining power with Israel, even if that power is conditionally provided by the United States.

A lesser understood and discussed implication of the A.T.C.A. is its effect on the important work done

by NGOs in Israel and Palestine.67 Many NGOs receive U.S. funding often through the same means that Palestine receives its aid. If NGOs elect to use even one dollar of U.S. funding, regardless of how it was obtained in Palestine, they too are opening themselves up to specific jurisdiction under the A.T.C.A.68 The pragmatic desire to avoid litigation may lead them to stop using U.S. money or to stop doing work in Palestine.

The Palestinian-Israeli peace process, if not stalled permanently under Obama, may now have reached its final moment of non-resuscitation. The Palestine Liberation Organization and the Palestinian Authority have been dealt the most significant blow by the United States since the moving of the U.S. embassy to Jerusalem via the Anti-Terrorism Clarification Act and subsequent torpedoing of bilateral aid. The Trump Administration has made virtually no effort towards establishing credible negotiations between the two parties, and, as a result of the A.T.C.A., has lost any potential aid leverage to draw Palestine back to the table.

IV. CONCLUSION There is an obvious, emerging U.S. consensus for moving away from Palestinian sovereignty and towards a de facto one-state reality in which Palestinians exist as a minority under Israeli control.69 This is confirmed by the Republican Party’s dramatic rightward shift and constant support and praise of Israel. The Anti-Terrorism Clarification Act and its unforeseen consequences are another demonstration of this. Beginning under President Clinton and growing more forceful with each passing administration, America has demonstrated 64 Tamar Pileggi, In Farewell Remarks, IDF Chief Urges Cabinet to Strengthen PA Security Forces, Times Isr. (January 14, 2019), https://www.timesofisrael.com/in-farewell-remarks-idf-chief-urges-cabinet-to-strengthen-pa-security-forces/.

65 Id. 66 Id. 67 Friedman, supra note 25.

68 Id. 69 Seth Anziska, Neither Two States nor One: The Palestine Question in the Age of Trump, 46 J. Palestine Stud. 57 (2017).

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Israel’s Attorney-at-Law itself to be Israel’s attorney-at-law, with little to offer the Palestinians. The Anti-Terrorism Clarification Act is the crown jewel of America’s tenure as Israel’s attorney-at-law: subtle, deceptive and wide-ranging in its effects.

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Losing Citizenship:

A Comparative Study on the Legal Issues of Returning ISIS Affiliates Yining Li College of William & Mary

Abstract As coalition forces have taken back the territory occupied by ISIS militants, former ISIS participants and affiliates have encountered a new problem. While several countries have decided to readmit them as citizens, other countries have stripped them of their citizenship. According to Article 15 of the Universal Declaration of Human Rights, no person may be denied their nationality. This paper analyzes the legality of those countries’ measures and discusses ISIS affiliates’ human rights. It summarizes the background of ISIS and examines citizenship as a fundamental human right for ISIS affiliates. This paper categorizes those countries into two groups according to whether they are willing to repatriate the participants or not. With regard to countries rejecting the citizenship of ISIS participants, this paper evaluates four such countries’ laws and argues that ISIS affiliates have the right to keep their citizenship and face a fair trial. Countries should openly accept them because their crimes cannot supersede the human rights of ISIS affiliates.

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Losing Citizenship I. INTRODUCTION The Islamic State of Iraq and Syria (“ISIS”),1 is a terrorist organization aimed towards the creation of an Islamic state and the implementation of a strict version of Sharia Law.2 The group initiated over 143 terrorist attacks3 among 29 countries4 and destroyed numerous historical sites and artifacts in Syria.5 For the duration of its existence, ISIS incorporated at least 41,490 citizens, including 4,761 women and 4,640 minors, from eighty countries (See infra Figure 1).6 Though the majority of ISIS participants are from the Middle East, many members are from countries such as Australia, France, Russia, the United Kingdom, and the United States.7 ISIS recruited women primarily to cultivate their children for future militancy, take care of their husbands, recruit new members, and spread propaganda.8 The term “minor” refers to an individual under the age of 18 who was either born in ISIS or who traveled to Syria and Iraq.9 This demographic was specifically susceptible to ISIS propaganda because the propaganda was disseminated through the government and family.10 Figure 1 I.S. affiliates in Iraq and Syria11

1 This refers to the organization also known as “ISIL,” “IS,” and “Daesh.”

2 Michael Lipka, Muslims and Islam: Key Findings in the U.S. and around the World, Pew Research Center, Aug. 9, 2017, www.pewresearch.org/fact-tank/2017/08/09/muslims-and-islam-key-findings-in-the-u-s-and-around-the-world/.

3 Well-known attacks include including Paris Attacks, Brussels Bombings, Pulse Nightclub Shooting, Nice Attack, Berlin Attack, Manchester Attack.

4 Tim Lister, ISIS: 143 Attacks in 29 Countries Have Killed 2,043, CNN, Feb.12, 2018, https://www.cnn. com/2015/12/17/world/mapping-isis-attacks-around-the-world/.

5 Dan Bilefsky, ISIS Destroys Part of Roman Theater in Palmyra, Syria, The New York Times, Jan. 20, 2017, www. nytimes.com/2017/01/20/world/middleeast/palmyra-syria-isis-amphitheater.html.

6 Joana Cook and Gina Vale, From Daesh to ‘Diaspora’: Tracing the Women and Minors of Islamic State, ICSR, 2018, https://icsr.info/wp-content/uploads/2018/07/ICSR-Report-From-Daesh-to-%E2%80%98Diaspora%E2%80%99Tracing-the-Women-and-Minors-of-Islamic-State.pdf.

7 Id. 8 Id. 9 Id. 10 Id. 11 Cook and Vale, supra note 6.

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Losing Citizenship

After international coalition forces took back the territories once part of the ISIS caliphate, the wives of ISIS militants and minors began to encounter a new problem: not being allowed to return to their home countries. Some countries, like Russia, Turkey, and New Zealand, have been relatively open to repatriating these affiliates, sentencing them accordingly.12 In contrast, countries like the United States, the United Kingdom, Australia, and Denmark strip the ISIS affiliates of their citizenship and bar them from returning.13 Until June 2018, only about 7,366 ISIS members have been able to return to their home countries; only four percent of these returnees were women and 17 percent were minors (See infra Figure 2).14 Figure 2 The contrast between I.S. affiliates and returnees15

As a comparative study, this paper discusses the legality of different governments’ procedures in dealing with the return of ISIS affiliates16 by evaluating their countries’ laws. I argue that former ISIS followers, especially women and children with a single nationality, should keep their citizenship and face a fair trial in their home country. However, the right to citizenship and a fair trial are being violated by countries such as the United States and the United Kingdom. In the next section, I will argue that ISIS participants should have the right to citizenship, while I explore the legal procedures of countries (like the United States) that are not willing to repatriate ISIS members. The third section discusses countries (like Russia) that actively repatriate affiliates but will let them face charges or punishments. In the fourth section, I more directly evaluate the United States’ policies. The conclusion emphasizes that former ISIS participants should be prosecuted in their home countries, rather than being denied entry and citizenship. Such an approach is essential because the questions surrounding the rights of former ISIS followers are matters of fundamental human rights.

II. COUNTRIES NOT WILLING TO REPATRIATE AFFILIATES Many countries, including the United States, bar the return of ISIS affiliates and strip them of their citi12 Repatriate or Reject: What Countries Are Doing with IS Group Families, France 24, June 11, 2019, www.france24.com/ en/20190611-repatriation-families-islamic-state-group-jihadists-children.

13 Id. 14 Cook and Vale, supra note 6.

15 Id. 16 Id. Affiliates are designated as mainly foreign females that traveled to Syria and Iraq to marry ISIS militants and persons who are under 18 years old in an ISIS group.

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Losing Citizenship zenship. The United States’ leading role in earlier military actions against ISIS puts the United States in a more authoritative position to recommend official policies on accepting repatriation requests.17 Despite this assumed leadership role, the United States’ policy position is contradictory. When dealing with the return of ISIS participants, President Donald Trump declared that “Britain, France, Germany, and other European countries should repatriate them and put them on trial.”18 However, the United States government is not actively accepting ISIS affiliates. The United States is thus requesting that other countries adhere to a policy which it does not itself follow. Other countries have not acceded to President Trump’s request. For example, Germany promised to put ISIS fighters on trial, but the government has expressed hesitation to repatriate the ISIS members.19 Additionally, France is only willing to repatriate on a “case by case” basis.20 In the open case Muthana v. Pompeo et al., the father of Hoda Muthana21 brought a lawsuit against Trump’s administration to argue for the citizenship of his daughter, a woman from Alabama who joined ISIS in 2014.22 Secretary of State Mike Pompeo alleges that the Muthana case “does not have any legal basis” because Hoda Muthana has “no valid United States passport, no right to a passport, nor any visa to travel to the United States.”23 He argued that Muthana’s father was a Yemeni diplomat, so the daughter of a foreign diplomat should not have United States citizenship.24 Clearly, this argument is untenable. According to Muthana’s family members, she was born in New Jersey after her father left his position as a Yemeni diplomat in 1994.25 Per the Fourteenth Amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.26

A key exception to this amendment is that children of diplomats or foreign officials do not receive United States citizenship.27 However, because Muthana was born in the United States after her father was no longer a diplomat, she is a full United States citizen. Arbitrarily depriving her citizenship and regarding her as a non-United States citizen would constitute a violation of the Amendment. A person can lose his or her United States citizenship under a few conditions. If fraud appeared in the naturalization process, the immigrant never was a citizen of the United States.28 Furthermore, if the person “voluntarily relinquishes citizenship,”29 commits an act of treason against the United States, runs for public office outside of the United States, enters military 17 ISIS Fast Facts, CNN, Sept. 8, 2019 at 7, https://www.cnn.com/2014/08/08/world/isis-fast-facts/index.html.

18 Donald Trump (@realDonaldTrump), Twitter, (Feb. 16, 2019, 10:51 PM), https://twitter.com/realdonaldtrump/ status/1096980408401625088?lang=en.

19 Jon Henley, Trump’s ‘Bring Jihadists Home’ Call Gets Mixed Response in Europe, The Guardian, Feb.18, 2019, at 8, www. theguardian.com/world/2019/feb/18/trumps-bring-jihadists-home-call-gets-mixed-response-in-europe.

20 Id. 21 Id. She was a college student when she traveled to Syria and joined ISIS, and she later married to three ISIS militants and gave birth to a baby.

22 Muthana v. Pompeo, F. Supp 2d (D.C.C. 2019).

23 David Shortell, Trump Says Alabama Woman Who Joined ISIS Should Not Return to US, CNN, Feb. 20, 2019, https:// www.cnn.com/2019/02/20/politics/hoda-muthana-state-department/index.html.

24 Id. 25 Id. 26 U.S. Const. art 14.

27 C.M. Rodriguez, The Second Founding: The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment, 2019, https://web.archive.org/web/20110715063130/http:/www.pennjcl.com/issues/11/11.5/11-5%20 Rodriguez.pdf 28 Chapter 2 - Grounds for Revocation of Naturalization, USCIS, Feb. 5 2020, www.uscis.gov/policy-manual/volume-12-partl-chapter-2.

29 Renunciation of U.S. Nationality Abroad, U.S. Department of State, https://travel.state.gov/content/travel/en/legal/ travel-legal-considerations/us-citizenship/Renunciation-US-Nationality-Abroad.html

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Losing Citizenship service outside the United States, or intentionally acquires citizenship outside the United States except through marriage, his or her citizenship will be revoked.30 ISIS is not a country, so affiliates cannot obtain legal citizenship. As a result, Muthana does not have another nationality.31 There is no legal record to prove she voluntarily gave up her United States citizenship; even though she tried to destroy her passport, she did not seek any formal means of relinquishing her citizenship.32 Furthermore, Muthana did not commit an act of treason as defined in the U.S. Constitution. According to the Constitution, “no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”33 If she were stripped of her United States citizenship, she would be stateless. Since Muthana has not been convicted of those charges, the United States has no legal justification for stripping her of her citizenship.34 As the case of Muthana is still in an active investigation, she has not been able to return to the United States.35 The United States, as a member state of the United Nations, agrees to a set of international human rights standards. However, the country’s treatment of former ISIS members remains antithetical to these common ideals.36 The adoption of Universal Declaration of Human Rights (“U.D.H.R.”) by all members of the United Nations, including the United States, codified international law on the rights of citizens. According to Article 15 of the U.D.H.R., “everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”37 Despite this international agreement, many member countries of the United Nations, like the United States, continue to strip ISIS affiliates, like Muthana, of their citizenship.

The United Kingdom engages in practices similar to those of the United States. Shamima Begum, who was married to a member of ISIS, was denied entry into her home country of the United Kingdom. She then attempted, but failed, to claim citizenship in Bangladesh.38 According to the British Nationality Act of 1981, if a person has dual nationality and if the Secretary of State regards the deprivation of their British citizenship as “conducive to the public good,” the person’s citizenship can be revoked.39 According to the Immigration Act of 2014, if “the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory,” the government can deny citizenship.40 Meanwhile, Bangladeshi Foreign Affairs Minister, Shahriar Alam, claimed that Begum was not a Bangladeshi citizen.41 As Begum only obtained British citizenship, and it appears she has no legitimate claim to citizenship in Bangladesh, she would become stateless if U.K. Parliament were to decide to strip her citizenship. In October of 2019, the Special Immigration Appeals Commission, a British court, held a four-day preliminary hearing. As the case is still ongoing, Begum remains in a Syrian refugee camp.42 30 Renounce or Lose Your U.S. Citizenship, USAGov, https://www.usa.gov/renounce-lose-citizenship.

31 Jessica Anderson, ISIS: State or Terror Group?, Small Wars Journal, https://smallwarsjournal.com/jrnl/art/isis-stateor-terror-group.

32 Shortell, supra note 23.

33 U.S. Const. art 3 sec. 3.

34 Graeme Wood, Don’t Strip ISIS Fighters of Citizenship, The Atlantic, Feb. 25, 2019, https://www.theatlantic.com/ ideas/archive/2019/02/isis-fighters-begum-and-muthana-should-remain-citizens/583450/.

35 Charlie Savage, Judge Declines to Speed Up Case of Alabama Woman Who Joined ISIS, The New York Times, Mar. 4, 2019, https://www.nytimes.com/2019/03/04/us/politics/hoda-muthana-hearing.html.

36 U.S. Mission Geneva, Human Rights Commitments and Pledges of the United States of America, U.S. Mission to International Organizations in Geneva, Apr. 10, 2018, https://geneva.usmission.gov/2016/02/24/human-rights-commitments-and-pledges-of-the-united-states-of-america/.

37 Universal Declaration of Human Rights. G.A. Res. 217A, U.N. GAOR, 3d Sess., Article 14, U.N. Doc. A/810 (1998).

38 Karla Adam, Shamima Begum, Teenager Who Joined ISIS, to Lose UK Citizenship, The Washington Post, Feb. 21, 2019, https://www.washingtonpost.com/world/europe/shamima-begum-teenager-who-joined-isis-to-lose-uk-citizenship/2019/02/20/3b02feec-3511-11e9-8375-e3dcf6b68558_story.html.

39 British Nationality Act 1981, Chapter 61, Oct. 30, 1981, (Art 40.2), https://www.refworld.org/docid/3ae6b5b08.html.

40 United Kingdom: Immigration Act 2014, 2014 c. 22, Jul. 14, 2014, (Art 66.1.c). https://www.refworld.org/docid/53c654334.html.

41 Adam, supra note 38.

42 Shamima Begum: Stripping Citizenship Put Her at Risk of Hanging, Court Hears, BBC News, Oct. 22, 2019, https://www. bbc.com/news/uk-50137470.

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Losing Citizenship The United States and the United Kingdom have strict policies against recognizing the citizenship of people who affiliate with ISIS, but the reasons they give for stripping citizenship are different. The United States government denied the validity of Muthana’s passport. It claimed that she never held United States citizenship. According to 18 U.S. Code § 2339B, the penalty of materially supporting terrorist elements, including adding personnel, does not involve stripping United States citizenship.43 The United Kingdom has prevented Begum from returning, even after Bangladesh denied her potential possession of citizenship. Both measures are applied by the government to bar both women from entering their home countries without trial or process. According to Article 14 of the International Covenant on Civil and Political Rights (“I.C.C.P.R.”), facing a fair trial is a foundational right for a person, so stripping a person’s nationality without enough evidence will be a violation of this treaty.44 Although the courts are processing these two women’s legal status problems now, governments from both countries have claimed to strip their citizenship without an official court process, thereby creating an untenable legal situation.

Countries such as Australia, Denmark, and Tunisia also prevent the return of ISIS followers or strip their citizenship.45 In Australia, the parliament discussed new laws in July 2019 to prevent citizens who have joined ISIS for two years from returning home.46 Countries, such as Australia and Denmark, are parties to the Convention on the Reduction of Statelessness (“1961 Convention”).47 In the 1961 Convention, “if a person becomes stateless, the contracting state shall grant its nationality to a person born in its territory.”48 Statelessness usually refers to a lack of nationality or citizenship.49 Members of the United Nations, despite repeatedly emphasizing the “right” to citizenship, deprive ISIS affiliates of this right. Revoking citizenship renders an individual stateless and denies them access to basic needs. Because citizenship frequently functions as a prerequisite for access to other human rights, this deprivation violates international agreements.

III. COUNTRIES THAT REPATRIATE AFFILIATES & PRESERVE CITIZENSHIP A few countries allow ISIS affiliates, especially women and children, to return to their home countries. For example, Russia is one of the major countries of origin for ISIS affiliates.50 Nearly 4,500 Russia citizens joined ISIS.51 Concerning repatriation, the Russian government is actively receiving ISIS affiliates, especially children.52 Russia also announced that bringing ISIS children back is “the right thing to do.”53 The Russian government acknowledged that they possessed no constitutional authority to strip former ISIS affiliates of their citizenship.54 Beyond the thirty aforementioned children taken back in December 2018, twenty-seven children age four to thirteen returned to Russia in February 2019.55 Chechnya followed suit in allowing all ISIS minors back into the 43 18 U.S. Code § 2339B, Providing Material Support or Resources to Designated Foreign Terrorist Organizations, Legal Information Institute, www.law.cornell.edu/uscode/text/18/2339B. 44 International Covenant on Civil and Political Rights, UN General Assembly, entered into force Dec. 16, 1966, 999 U.N.T.S 177.

45 More countries can be traced in the 1961 Convention.

46 Australia to Bar Return of Citizens Who Fought for ISIS, The Straits Times, Jul. 23, 2019, https://www.straitstimes.com/ asia/australianz/australia-to-bar-return-of-citizens-who-fought-for-isis.

47 Convention on the Reduction of Statelessness, UN General Assembly, entered into force Dec. 13, 1975, 989 U.N.T.S. 175.

48 Convention on the Reduction of Statelessness, supra note 47. “The contracting state” refers to a state which has agreed to be bound by a Convention.

49 The Stateless in the United States, The Center for Migration Studies of New York (CMS), Feb. 11, 2020, cmsny.org/thestateless-in-the-united-states/.

50 Cooke and Vale, supra note 6.

51 France 24, supra note 12.

52 Russia Pioneering Return of ‘ISIS Children’, France 24, Feb. 18, 2019, https://www.france24.com/en/20190218-russia-pioneering-return-isis-children.

53 Id. 54 Russian Federal Law on the Citizenship of the Russian Federation (As Amended in 2017), Russian Federation, N 62-FZ, 29 Jul. 29, 2017, (article 18, 19).

55 France 24, supra note 53.

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Losing Citizenship country in March 2019.56 The process of accepting returning ISIS affiliates generates pressing questions for Russia and Chechnya, such as differentiating the children of ISIS brides from the young militants.57 Russia has regarded children born to ISIS affiliates as innocent; the government is trying to find foster families to educate the children against the propaganda to which they were exposed. However, young militants will face sentencing and incarceration. Though it will take a long time to process the entire transition of Russian citizens from Syria and Iraq to Russia, the government is actively dealing with the problem of returning affiliates. As of December 2019, the DNA samples of 100 minors were collected to examine whether they are related to Russian nationals.58 If those minors’ potential guardians are Russians, the government will bring back those children. This is a step forward in repatriating former ISIS minors.

Since ISIS affiliates are regarded as potential threats by their home countries, only a few countries except Russia are willing to repatriate them, including New Zealand and Turkey. For instance, New Zealand citizen Mark Taylor joined ISIS, but fled from the group in December 2018.59 After he surrendered to Kurdish forces, he was held in the Kurdish jail and expressed the desire to return to New Zealand.60 In response to this, New Zealand Prime Minister Jacinda Ardern stated that “he should not lose his citizenship but might face charges when he returns home.”61 Taylor only has New Zealand citizenship, and Prime Minister Ardern’s comment indicates New Zealand’s commitment to ensuring that he will not become stateless.62 This measure is much more accommodating in comparison to the policies of the United States and the United Kingdom, as it protects Taylor’s citizenship. This policy of repatriating former ISIS members and trying them domestically is also present in Turkey, despite an initial reluctance by government officials to allow the ISIS militants’ families back into the country.63 Pressure from relatives in Turkey has precipitated the repatriation of former ISIS members. Since the beginning of 2019, Turkey has repatriated more than 200 Turkish children from Iraq.

IV. EVALUATION OF U.S. POLICY The measures taken by the United States differ from those of other countries dealing with similar challenges. The United States has a long history of trying to revoke individuals’ citizenship. For example, in the 1958 case Trop v. Dulles, a natural born American was convicted of wartime desertion and was sentenced to “three years at hard labor, forfeiture of all pay and allowances and a dishonorable discharge.”64 In 1952, when he applied for a passport, his application was denied.65 His citizenship was deprived based on § 401(g) of the Nationality Act of 1940, which stated that “natural-born American citizens would lose their citizenship if convicted of military desertion during time of war.”66 The Supreme Court regarded the deprivation of citizenship in this manner as violating the Eighth Amendment, as it imposed “cruel and unusual punishment.”67 As a result, 56 Samuel, Ramani, Analysis: Why Is Russia Insisting on Bringing Home ISIS Fighters’ Children?, The Washington Post, 8, Apr. 2019, https://www.washingtonpost.com/politics/2019/04/09/why-is-russia-insisting-bringing-home-isis-fighterschildren/.

57 Russia’s Repatriation of ISIS Members, Foreign Policy Research Institute, www.fpri.org/article/2019/04/russias-repatriation-of-isis-members/.

58 Wladimir van Wilgenburg, Russia Collects DNA of 100 Children of ISIS Parents in Syria for Possible Resettlement, kurdistan24.Net, Dec. 15, 2019, www.kurdistan24.net/en/news/4841d236-ff4e-4f56-9986-8566ecfafe16.

59 Mike Ives, New Zealand Won’t Revoke ISIS Member’s Citizenship, but He May Face Charges, The New York Times, Mar. 4, 2019, https://www.nytimes.com/2019/03/04/world/asia/new-zealand-isis-citizenship.html.

60 Id. 61 Id. 62 Id. 63 Carlotta Gall, ‘Her Eyes Were Full of Fear.’ Turkey Repatriates Children of ISIS Followers, The New York Times, Jul. 27, 2019, https://www.nytimes.com/2019/07/27/world/middleeast/turkey-children-isis.html.

64 Trop v. Dulles, 356 U.S. 86 (1958).

65 Id. 66 George S Knight, Nationality Act of 1940, American Bar Association Journal, vol. 26, no. 12, Dec. 1940, p. 938-940.

HeinOnline, https://heinonline.org/HOL/P?h=hein.journals/abaj26&i=964.

67 U.S. Const. art 8.

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Losing Citizenship this Supreme Court case struck down § 401(g) of the Nationality Act of 1940. Nevertheless, the government arbitrarily stripping a U.S. citizen’s citizenship has continued today as demonstrated by the case of ISIS affiliates.

In the aftermath of 9/11, the United States strengthened its national security apparatus. The stated rationale for preventing ISIS affiliates from returning to the United States is to prevent further terrorist attacks in the United States. Ostensibly, this precaution will help United States citizens live peacefully and securely. However, placing people designated as potential threats in regional camps and jails to prevent terrorist attacks is far from the best solution. For instance, in October 2019, at least 750 women and children affiliated with ISIS escaped from camps in Syria.68 Therefore, if mitigation of potential attacks is the ultimate goal, the government should repatriate the ISIS affiliates, try them, and allocate the appropriate punishments in American prisons. Repatriating ISIS affiliates will ensure they are more visible and secure. As they are interrogated and imprisoned, it will be difficult for them to collude and create another attack.

V. CONCLUSION Although the majority of countries are not willing to repatriate ISIS supporters, some countries such as Turkey have begun to allow some former ISIS affiliates back into their countries. The United States and Russia provide opposing solutions to the potential problem of statelessness for former ISIS affiliates. The United States and the United Kingdom should change their policies to repatriate ISIS affiliates, especially those women and children who only have one nationality. Their rights to citizenship and a fair trial are protected by international human rights documents and treaties such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and the Convention on the Reduction of Statelessness. Countries like the United States that signed these documents and treaties are not fulfilling their obligations of protecting human rights. As governments search for solutions to the challenges posed by ISIS affiliates, they must prioritize safely returning affiliates to their home countries. To do otherwise is to violate the human right to citizenship.

68 Andy Gregory, Nearly 800 Isis-Affiliated Women and Children Escape from Camp in Syria, The Independent, Oct. 13, 2019, https://www.independent.co.uk/news/world/middle-east/isis-syria-kurds-turkey-escape-camp-sdf-ain-issa-a9153816.html.

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DACA’s Rescission: Behind the Veil Victoria Galarraga Georgetown University

Abstract This paper weighs in on the case of Department of Homeland Security vs. Regents of the University of the California, currently before the Supreme Court, which heard oral arguments on November 12, 2019. In September of 2017, the Department of Homeland Security abruptly announced its decision to end the Deferred Action for Childhood Arrivals (“DACA”) program, arguing the rescission of this program was within its discretionary authority and could not be reviewed by the courts. I argue that the decision to rescind DACA is subject to judicial review under the Administrative Procedure Act and was capricious under the standards set forth in such.

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DACA’s Rescission I. INTRODUCTION

The Department of Homeland Security (“D.H.S.”) established DACA in 2012, providing that “certain young people who were brought to this country as children and know only this country as their home” are eligible to apply for case-by-case discretionary relief from removal if they meet a list of certain criteria.1 Policies of deferred action, like DACA, have a strong legal and historical foundation. The Supreme Court in Reno v. American-Arab Anti-Discrimination Committee2 recognized that deferred action policies can be necessary for “humanitarian reasons or simply for [their] own convenience.”3 Given that departments like Homeland Security lack sufficient resources to remove every undocumented immigrant, they must set high and low priority targets.

Officers within the executive branch have the power to exercise prosecutorial discretion to set these enforcement priorities. Deferred action is one form of prosecutorial discretion in immigration law, which has been used by D.H.S. for decades. The legal authority for policies of prosecutorial discretion originates from the Constitution.4 As early as 1976, Sam Bernsen, General Counsel for the former Immigration and Naturalization Service (“I.N.S.”), identified the Take Care Clause of Article II, Section III of the U.S. Constitution as the primary source for prosecutorial discretion in immigration law. He noted that “the reasons for the exercise of prosecutorial discretion are both practical and humanitarian,” as in some situations, “application of the literal letter of the law would simply be unconscionable and would serve no useful purpose.”5 The removal of hundreds of thousands of children is one of these cases.

The inherent authority of prosecutorial discretion is traced back to the common law, where a prosecuting attorney held the discretion to terminate a suit at any time. In the U.S. Constitution, the president is granted the power to take care that the laws be faithfully executed, which gives him or her the authority to exercise prosecutorial discretion for that purpose. Under the executive, prosecutorial discretion is “also exercised by a wide variety of other government officials with law-enforcement responsibilities.”6 Bernsen reviewed a list of cases recognizing prosecutorial discretion as a plenary power of the executive that may not be reviewed by the judiciary. Importantly, however, he noted that courts “will not tolerate an arbitrary exercise of prosecutorial discretion by an administrative agency.”7 In the immigration context, he traced prosecutorial discretion back to a 1909 letter by the U.S. Department of Justice on the institution of proceedings to cancel naturalization. He noted that the I.N.S.’s Operations Instruction 103.1(c)(1)(ii) “lists various factors to be considered in determining whether to place an alien in the ‘deferred action’ category, meaning that deportation proceedings will not be instituted or continued against the alien.”8 He concluded that “although there is authority for the plenary nature of prosecutorial discretion, the trend, especially in administrative contexts, is towards judicial review of prosecutorial discretion to ascertain that it is not being exercised in a way that would be constitutionally suspect or grossly unfair.”9 It is upon these grounds that every presidential administration since has exercised deferred action policies like DACA.10 DACA has created enormous benefits for participants and the country as a whole, a fact the government does not dispute. Nearly 700,000 young immigrants currently have deferred action under this policy: 91% have achieved employment rate, 94% have pursued educational opportunities previously unavailable to them and 1 Brief of respondents Regents of the University of California at 5 Department of Homeland Security v. Regents of the Univ. of Cal. __ U.S. __, (2020) (No. 18-587) 2018 WL 1037642.

2 Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999).

3 Brief of respondents Regents of the University of California, supra note 1, at 45.

4 Shoba Sivaprasad Wadhia et. al., Letter to President Donald J. Trump, Penn State Law (August 14, 2017), https:// pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Immigrants/LawProfLetterDACAFinal8.13.pdf.

5 Sam Bernsen, INS General Counsel, Legal Opinion Regarding Service Exercise of Prosecutorial Discretion at 1 (July 15, 1976).

6 Id., at. 2.

7 Id., at 3.

8 Id., at 6.

9 Id., Emphasis added.

10 Brief of respondents Regents of the University of California, supra note 1, at 2.

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DACA’s Rescission 72% are pursuing a bachelor’s or a higher degree. They contribute more than $1.25 billion in tax revenue each year. The rescission of DACA would cost the country approximately $215 billion in lost GDP and $60 billion in lost federal tax revenue over a 10-year period.11 As constitutional scholar David A. Strauss explains, the common law approach, based on precedents and arguments about fairness and social policy, is what courts use in practice when faced with a constitutional issue.12 The Supreme Court’s precedent favors a ruling for Regents of the University of California. Where precedent leaves off there is also a “legitimate role for judgments about things like fairness and social policy” and judges should and do consider “why one result makes more sense than another, why a different ruling would be harmful to some important social interest.”13 In the case of a successful and beneficial policy like DACA, “lessons embodied in the cases that the Court decides and in the traditions and understandings that have developed outside the court room” are important and helpful factors to consider, especially in the face of an enormously consequential, socially harmful and, for the purposes of this case, improperly justified rescission.14 In fact, the practical and humanitarian benefits of DACA explored above epitomize good and fair social policy as supported by the common law approach. As Strauss explains, this approach is governed not by algorithms but by a set of attitudes. The first attitude is reference to collective wisdom. Supreme Court precedent, legal opinions like Sam Bernsen’s above, and the many amicus briefs in support of Regents of the University of California are proof of a collective wisdom in support of legally and historically backed deferred action programs, and a strong presumption favoring judicial review of agency action. The second attitude is asking what has worked in practice.15 The statistics about the success of DACA, the negative economic and social effects of its unjustified rescission, and the fact that every presidential administration since 1956 has exercised deferred action programs, point to the logical conclusion that these policies work in practice and that their rescission requires a proper explanation. Under this framework, the abrupt decision to rescind DACA “represents an extraordinary use of discretion that is morally troubling and out of sync with history and our humanity.”16

II. THE GOVERNMENT’S DECISION TO RESCIND DACA

President Trump repeatedly assured that DACA participants had nothing to fear and should rest easy, affirming that the policy of his administration was to allow the DACA recipients to stay. In February of 2017, then-Secretary of Homeland Security John F. Kelly stated that DACA status was a commitment by the government towards the DACA person.17 Then, in September of the same year, then-Attorney General Jeff Sessions sent a half page letter to then-Acting Secretary of Homeland Security Elaine Duke advising that D.H.S. rescind the DACA policy stating, without further explanation, that it was effectuated without proper statutory authority and was an unconstitutional exercise of authority by the executive. Sessions asserted that DACA suffered from the same constitutional defects as the different policy of Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”), which had been preliminarily enjoined by an equally divided Court in Texas v.

United States.18 The next day, Secretary Duke abruptly issued a memorandum rescinding DACA, with a one-sentence justification for the decision. The decision was immediately challenged in lower courts in California, New York, and the District of Columbia, all reaching the conclusion that the DACA rescission, without adequate

11 Id., at 6-7.

12 David Strauss, The Living Constitution 44 (2010).

13 Id., at 33, 38.

14 Id., at 35.

15 Id., at 41.

16 Shoba Sivaprasad Wadhia, Symposium: Dream deferred, SCOTUSBlog (Sept. 12, 2019, 2:30 PM), https://www. scotusblog.com/2019/09/symposium-dream-deferred/.

17 Brief of respondents Regents of the University of California, supra note 1, at 8.

18 Id., at 8-9.

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DACA’s Rescission explanation, should be preliminarily enjoined or vacated.19 The Court must decide whether the decision to rescind DACA is subject to judicial review under the Administrative Procedures Act (“A.P.A.”) and whether the decision to rescind DACA was arbitrary and capricious. The A.P.A. establishes the scope of review for administrative agency actions: “the reviewing court shall…hold unlawful and set aside agency actions…found to be: arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.”20 It exempts from judicial review agency action that is “by law committed to agency discretion.”21 The Rescission of DACA is Reviewable Petitioners argue that the decision to rescind DACA is not reviewable because it was an agency action “by law committed to agency discretion.”22 However, this decision falls under the broad scope of action subject to judicial review, and not the very narrow exemption for actions “committed to agency discretion by law.”23 D.H.S.’s decision rested entirely on its determination that DACA was unlawful: Secretary Duke’s Memorandum for the rescission cited “the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation [of DAPA], and the September 4, 2017 letter from the Attorney General,” all legal sources.24 If rescission was required by law, D.H.S. was not exercising discretion pursuant to the A.P.A. but rather determined it had no discretion to exercise. The decision is therefore not committed to agency discretion but a legal determination subject to review by the court, whose “province and duty” it is “to say what the law is.”25 As the Ninth Circuit put it, “the government may not simultaneously both assert that its actions are legally compelled, based on its interpretation of the law, and avoid review of that assertion by the judicial branch.”26 Further, the A.P.A. provides that “any person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”27 In Securities Comm’n v. Chenery Corp.,28 the Court held that, when an agency has “misconceived the law,” an order may not stand. It is the courts that determine whether the law has been misconceived.29

Nine months after the DACA rescission by Secretary Duke, then-Acting Secretary Kirstjen Nielsen, in response to ongoing litigation setbacks, issued a second memorandum purporting to expand the explanation for the rescission. This memorandum included legal considerations and additionally cited other discretionary, policy concerns.30 However, the Nielsen Memorandum, issued after litigation had begun, is an impermissible post-hoc rationalization of the agency’s action. Review of agency action is limited to the reasons the agency gave when it took the action, and it may not defend the decision on new ground not set forth in its original decision, as the Court also ruled in Chenery. Allowing agencies to issue post-hoc rationales in the middle of judicial review would require that courts review a continuously moving target, which the agency could alter to its convenience when faced with possible defeat in litigation. Therefore, the Nielsen Memorandum does not alter the conclusion that D.H.S.’s decision is subject to judicial review.

19 Id., at 10-14.

20 Administrative Procedure Act, 5 U.S.C. § 500 (1946).

21 Id. 22 Brief of petitioners Department of Homeland Security at 14, Department of Homeland Security v. Regents of the Univ. of Cal. __ U.S. __, (2020) (No. 18-587) 2018 WL 1037642.

23 Id. 24 Kirstjen M. Nielsen, Memorandum from Secretary Kirstjen M. Nielsen, Department of Homeland Security (June 22, 2018), https://www.dhs.gov/sites/default/files/publications/18_0622_S1_Memorandum_DACA.pdf.

25 Marbury v. Madison, 5 U.S. 137 (1803).

26 United States Court of Appeals for the Ninth Circuit, Regents of the Univ. of Cal. v. USDHS, pg. 22.

27 Administrative Procedure Act, 5 U.S.C. § 500 (1946).

28 Securities Comm’n v. Chenery Corp., 318 U.S. 80 (1943).

29 Brief of respondents Regents of the University of California, supra note 1, at 44.

30 Id., at 14.

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DACA’s Rescission The Rescission of DACA was Arbitrary and Capricious The rescission of DACA cannot satisfy the arbitrary and capricious standard of the A.P.A. Any agency can exercise its discretion to reverse its own policy, but it must provide an adequate explanation, which D.H.S. failed to do. The Supreme Court has repeatedly held that, to satisfy the arbitrary and capricious standard of the A.P.A., the agency must “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.”31 Secretary Duke’s Memorandum offered an unsatisfactory, one-sentence explanation for the rescission of DACA. As previously mentioned, Secretary Duke offered the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation of DAPA, and the September 4, 2017 letter from the Attorney General as the sources behind her decision. Neither the Attorney General’s letter nor the Duke Memorandum explain why the decision concerning the distinct policy of DAPA compels the rescission of DACA, or address the difference between these policies. In his letter, Attorney General Sessions asserted that DACA suffered from the same constitutional defects as DAPA, which had been preliminarily enjoined by an equally divided Court in Texas v.

United States.32 Importantly, no Court ever held that DAPA, or DACA, had any constitutional defects.33 Instead, DAPA was enjoined because it encroached upon an already existing process in the Immigration and Nationality Act (“I.N.A.”) for immigrants to derive a lawful immigration classification from their children’s immigration status. The Fifth Circuit concluded that DAPA would allow undocumented individuals “to receive the benefits of lawful presence solely on account of their children’s immigration status without complying with any of the [enumerated] requirements… that Congress has deliberately imposed” through the I.N.A.34 Rescinding DACA because of the enjoinment of DAPA misconstrues the legal conclusions of the DAPA litigation as well as the actual implications of the two distinct policies.

There is no comparable process in the I.N.A. for the individuals that are eligible for DACA, so it is impossible to conclude, as the Fifth Circuit did in the case of DAPA, that Congress has already directly addressed the precise question at issue. Moreover, the Memorandum failed to address the differences between the two policies, like the fact that DACA applies to significantly fewer individuals (700,000 versus four million), and DAPA would have granted lawful presence whereas DACA is only a policy of deferred action, and does not create a path to immigration status or establish lawful presence. The Duke Memorandum did not once mention reliance interests. It also relied exclusively on Attorney General Sessions’s half-page letter as a legal source and failed to address other highly relevant and detailed legal sources that are directly contrary to the decision, like the 2014 Office of Legal Counsel’s opinion, the base for the government’s long-standing litigation position, or any of the considerations the government previously relied on to defend D.H.S.’s authority to establish deferred action policies like DACA.35 The post-hoc Nielsen Memorandum, even if accepted, did not cure the defects in the Duke Memorandum and also failed to adequately explain the rescission. The Memorandum still failed to address the differences between DACA and DAPA. It provided insufficient, additional policy rationales for the rescission, namely (1) that D.H.S. should enforce the policies reflected in the laws adopted by Congress, (2) should only exercise its prosecutorial discretion not to enforce on a truly individualized, case-by-case analysis, and (3) must project a message that D.H.S. will enforce the immigration laws to deter unlawful immigration.36 The first two policy rationales still rest upon the legal determination of the Duke Memorandum that DACA is unlawful. The speculative “messaging” rationale is insufficient to support the rescission, and in effect asserts that the government should inflict grievous harm on 700,000 individuals, each of whom did satisfy an individualized, case-by-case 31 Motor Vehicle Manufacturers Assoc. of the United States, Inc. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29 (1983).

32 Brief of respondents Regents of the University of California, supra note 1, at 8-9.

33 Id., at 35.

34 Id., at 33.

35 Id., at 36.

36 Nielsen, supra note 24.

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DACA’s Rescission review, in order to send a “message” to individuals outside the United States. This rationale is also unreasonable given that DACA applies only to immigrants who resided in the United States before 2007. The government provided no relevant analysis, data, or facts to support this rationale, failing to meet the criteria that there be a “rational connection between the facts found and the choice made.”37 The Supreme Court has held that, particularly when serious reliance interests are at stake, the agency must “provide a reasoned explanation” for the reversal of a policy, “show that there are good reasons for the new policy,” take into account any “engendered serious reliance interests” and offer more than “conclusory statements.”38 The Nielsen Memorandum failed to give adequate consideration to the reliance interests of the 700,000 DACA participants, their 200,000 U.S.-born children, and their communities, schools and employers, rendering the decision arbitrary. As previously mentioned, the Duke Memorandum never even acknowledged these interests. The post-hoc Nielsen Memorandum’s brief consideration of reliance interests is both too little and too late. The Memorandum failed to offer anything more than conclusory statements about the reliance interests of DACA participants, stating that Secretary Nielsen was “keenly aware” of the interests and the “sympathetic circumstances” of participants. She proceeded to further disregard the interests because they would “best be considered by Congress.”39 This is not a proper evaluation of reliance interests but rather an abdication of responsibility by D.H.S. to conduct the required evaluation. It is important to note that the injunctions of DACA by the lower courts do not limit D.H.S.’s ability to exercise its discretion to remove any DACA participant “who poses a risk to national security or public safety, or otherwise deserves, in its judgment, to be removed.”40 Because D.H.S. is not impeded from continuing to exercise its discretion and blatantly failed to consider the reliance interests of DACA participants, “the balance of hardships tips decisively in favor of [Regents of the University of California]” and the decision was arbitrary and capricious.41 Lastly, the Court should not rule for the government without a complete administrative record. The full administrative record that was before the Secretary at the time of her decision is currently incomplete, as found by multiple courts, and the decision therefore cannot survive arbitrary and capricious review. An incomplete administrative record is particularly concerning in light of evidence that D.H.S.’s explanation is pretextual and other reasons exist for rescinding the policy. In Department of Commerce v. New York,42 the Supreme Court ruled that agency actions must be set aside where the explanation is “incongruent with what the record reveals about the agency’s priorities and decision-making process.”43 Evidence points to different priorities than the ones offered in D.H.S.’s decision making process. For example, when Attorney General Sessions announced the rescission, he stated that DACA denies American jobs and contributes to crime.44 Not only is there no support for these assertions in the administrative record, but they were also not included in the Duke Memorandum. Evidence also strongly suggests that the administration rescinded DACA to gain leverage in negotiations with Congress over the border wall, and is using DACA as a bargaining chip in its negotiations. President Trump sent a letter to congressional leaders setting out immigration policies that “must be included as part of any legislation addressing the status of DACA recipients.”45 He has also tweeted that “the Democrats have been told, and fully understand, that there can be no DACA without the desperately needed wall at the Southern Border” and that “if there is no Wall, there is no DACA.”46 Lastly, 37 Motor Vehicle Manufacturers Assoc. of the United States, Inc. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29 (1983).

38 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016).

39 Nielsen, supra note 24.

40 Brief of respondents Regents of the University of California, supra note 1, at 30.

41 Id., at 30.

42 Department of Commerce v. New York, 588 U.S. ___ (2019).

43 Id., at 57.

44 Id., at 57.

45 Donald J. Trump, President Donald J. Trump’s Letter to House and Senate Leaders & Immigration Principles and Policies, White House, (October 8, 2017).

46 Donald J. Trump (@realDonaldTrump), Twitter (Jan. 23, 2018, 8:07 PM), https://goo.gl/Zz46iq; Donald J. Trump

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DACA’s Rescission President Trump has indicated that he may “revisit the rescission,” which is at odds with the explanation for rescission provided by D.H.S. because, if the policy must be ended because it is unlawful, there could be nothing to “revisit.”47

III. TO THE CLAIM THAT DACA IS UNLAWFUL

D.H.S. argues that the rescission of DACA was lawful in light of D.H.S.’s serious doubts about DACA’s lawfulness, and that it correctly concludes that DACA is, in fact, unlawful. History, precedent, and the I.N.A. point to a different conclusion.

D.H.S. contends that, in light of its serious doubts about DACA’s lawfulness after Texas informed the agency it would be challenging DACA, “litigation risks” provided a rationale for its rescission.48 However, reliance on “litigation risk,” never mentioned in the Duke Memorandum, is not an adequate or independent basis for rescission.49 Agencies cannot evade meaningful judicial review by repackaging their own legal conclusions as “litigation risk” assessments, or any action taken by any agency could circumvent judicial review by claiming to be acting against risk of litigation. Further, D.H.S. failed to consider the litigation risks created by rescinding DACA. When the courts below preliminarily enjoined or vacated DACA’s rescission, the government lost no time in pursuing appeals. This undermines D.H.S.’s claim that the recession was necessary to avoid burdensome litigation that could distract from the agency’s work. D.H.S. then incorrectly concludes that its decision to rescind DACA was reasonable in light of the fact that DACA is in fact unlawful, but DACA is a lawful exercise of the authority conferred by the I.N.A. In his legal opinion on prosecutorial discretion, Bernsen wrote that “the [INS’] power to exercise prosecutorial discretion is inherent in the nature of its enforcement function and does not depend upon any specific provision of the Immigration and Nationality Act.”50 The authority for the type of prosecutorial discretion before us today, a deferred action policy, can be traced to specific provisions of the I.N.A. which confers the Secretary with this authority. 8 U.S.C. § 1103 charges the Secretary “with the administration and enforcement” of the federal immigration laws. More specifically, in recognizing a disparity between the size of the unauthorized immigrant population and the resources available for enforcement, Congress expressly directed the Secretary, through the Homeland Security Act of 2002, to establish “national immigration enforcement policies and priorities.”51 That is precisely what DACA does: confers deferred action to low-priority targets so that D.H.S.’s limited resources can be utilized to remove high-priority targets. It is also important to note that it is Congress that allocates D.H.S.’s funds, and has not provided D.H.S. with sufficient resources to “effectuate the removal of more than a small fraction of the nation’s undocumented immigrants.”52 Because of this disparity between resources and unauthorized immigrants, the former I.N.S. and now D.H.S. have for decades necessarily used their inherent prosecutorial discretion to set enforcement priorities through policies like deferred action, and since 2002 been expressly directed to continue to do so.

Lastly, the arguments D.H.S. provides to support their legal conclusion that DACA is unlawful lack merit. The government recognizes that D.H.S. has broad discretion to implement deferred action policies as long as each case is determined through an individualized assessment. It also recognizes that each person eligible for DACA could individually be granted deferred action, but contends that it is not authorized to grant relief to a broad category of individuals. This assessment of DACA misconstrues how the policy works. Re(@realDonaldTrump), Twitter (Feb. 5, 2018, 6:36 AM), https://goo.gl/BpvHV6.

47 Brief of respondents Regents of the University of California, supra note 1, at 58.

48 Brief of petitioners Department of Homeland Security, supra note 22, at 37-38.

49 Brief of respondents Regents of the University of California, supra note 1, at 16.

50 Sam Bernsen, INS General Counsel, Legal Opinion Regarding Service Exercise of Prosecutorial Discretion (July 15, 1976).

51 Border, Maritime and Transportation Responsibilities, 6 U.S.C. § 202, (2015).

52 Id.

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DACA’s Rescission quests for relief have been instructed to be decided on a case-by-case basis since the enactment of DACA.53 Case-by-case, individualized discretion has been exercised in practice: in the 2016 fiscal year, 17.8% of DACA applications were denied, and, as of 2015, 200,000 applications had been returned with requests for additional evidence.54 But even if DACA could be properly understood as a categorical policy, the government recognizes that such policies have been adopted in the past.55 D.H.S. attempts to distinguish these policies from DACA as being “interstitial” because Congress eventually passed legislation to address this category of people.56 However, at the time any policy is adopted, there is no way to know whether it will eventually be interstitial. If Congress, in the future, passes legislation granting status to those currently eligible for DACA, DACA, too, will have been an interstitial policy.57 D.H.S.’s conclusion that it cannot maintain DACA as a policy because it is unlawful is erroneous, and its rescission is therefore “not in accordance with the law,” and cannot be sustained under the arbitrary and capricious standard.58

IV. CONCLUSION DACA is a successful deferred action policy with deep and significant impacts on its 700,000 participants, their 200,000 U.S.-born children, communities, schools, and employers. The stakes in this case are incredibly high: DACA recipients have built their lives in this country, many have lived here for as long as they can remember. They pay taxes, follow our laws, go to our schools, and work alongside us. Most importantly, they are human beings and not bargaining chips for any administration to use in gaining leverage for political ends. The decision to rescind a policy of such magnitude goes against our history, morality, and undermines the need to focus D.H.S.’s limited resources on targets of high priority. The outcome of this case will shape the scope of executive action in immigration law and the future of deferred action programs, which throughout our history have been shaped not only by our needs but by our compassion. The Supreme Court should affirm the Ninth Circuit’s injunction against the unjustified, arbitrary, and capricious rescission of the lawful and successful policy of DACA.

53 Janet Napolitano, Secretary Napolitano Announces Deferred Action Process for Young People Who Are Low Enforcement Priorities, Department of Homeland Security (June 15, 2012), https://www.dhs.gov/news/2012/06/15/ secretary-napolitano-announces-deferred-action-process-young-people-who-are-low.

54 Brief of respondents Regents of the University of California, supra note 1, at 46-47.

55 For example, the government’s Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children granted deferred action to the category of surviving spouses of deceased U.S. citizens where the surviving spouse and the U.S. citizen were married less than two years at the time of the citizen’s death, people who, like those eligible for DACA, had no other avenue for immigration relief.

Donald Neufeld, Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children, U.S. Citizenship and Immigration Services (June 15, 2009) https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2009/ June%202009/surviving-spouses-deferred-action-guidance.pdf.

56 Brief of petitioners Department of Homeland Security, supra note 22, at 48.

57 Brief of respondents Regents of the University of California, supra note 1, at 51.

58 Id. at 53.

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An Ounce of Prevention:

Reorienting Gender-Based Juvenile Justice Reform Abigail Lovell

Georgetown University

Abstract This paper provides a brief background of the juvenile justice system to address the ways in which it fails to serve girls. It then offers various solutions that justice practitioners are currently exploring in order to address girls’ specific needs. Further, it examines the successes and drawbacks of three significant approaches employed by reformers. The author identifies these approaches, which utilize gender-informed strategies, in terms of their focus on detention, systems, or prevention. Ultimately, while necessary, detention and systems-based approaches intervene too late to best serve girls’ needs. Based upon the findings that girls most often enter the justice system due to adverse childhood experiences and mental health issues, this paper determines that prevention-based reforms best address girls’ needs by intervening before criminalized behaviors escalate.

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An Ounce of Prevention I. INTRODUCTION Though the U.S. juvenile justice system was born of the recognition that child offenders have different needs than adult offenders, it fails to address those distinct needs. Believing that, “as a class, they are less blameworthy, and they have a greater capacity for change,” juvenile systems initially set out to provide more restorative responses to criminal offenders than the pre-existing adult system could facilitate.1 Still, the juvenile system is beleaguered by many of the pitfalls of its adult predecessor. One such pitfall rests in its assumption that a one-size-fits-all model of juvenile justice (designed with a male population in mind) will adequately address the needs of girl offenders.2 Scholars, activists, and policymakers have recognized that this one-size-fits-all model is ineffective. In order to address the needs of girl prisoners, scholars, activists, and policymakers advocate for a gender-responsive approach to reform the current system.3 In this paper, I argue that while the current focus on gender-responsive reforms addresses a critical aspect of girl offenders’ experiences, such reforms fail to address girls’ needs unless they are paired with an intense program of gender-informed prevention strategies.4 II. GIRLS IN JUVENILE JUSTICE

Reflecting America’s attitude toward crime, the juvenile justice system employs an androcentric and paternalistic strategy to reduce childhood offending. As women and girls make up only a small percentage of the overall justice-involved population—8% and 29% respectively—most justice policy and justice reform efforts overlook their needs in favor of addressing the larger male population.5 Of the jails and “programs that currently exist for girls, most are modeled after programs that serve males . . . programs that fail to meet [girls’] unique developmental, physiological[,] and emotional needs.”6 To make matters worse, long held social constructions work to dampen the urgency of justice reform.

Overwhelmingly, while unruly boys are termed ‘bad boys’ or ‘juvenile delinquents,’ unruly girls are thought of as ‘lost girls’ needing chastening and protection.7 In this stereotypical view, the justice system is not mainly punitive, but instead tries to serve girls as a sort of guardian angel, protecting them from abuse and sexual deviance. Before reform workers can garner support for much needed substantive change, they must first overcome stereotypes, educate the public, and establish the harsh truths of the incarceration of girls.

1 Youth in the Justice System: An Overview, Juvenile Law Center (2019,), https://jlc.org/youth-justice-system-overview; I will use the terms “girl” and “boy” to refer to female and male juveniles. While I recognize that these terms can be infantilizing, especially for females, this is not my intention. Rather, these terms appear frequently in the literature and are useful in differentiating the youth population from the adult population. As the juvenile justice system serves those between the ages of 12-21, some “girls” and “boys” may be legal adults.

2 Justice for Girls Movement: a ‘One Size Fits All’ Approach is Not the Answer, The Children’s Campaign (2019), https://iamforkids.org/services-for-justice-involved-girls2/.

3 Barbara E. Bloom and Stephanie S. Covington, Effective Gender-responsive Interventions in Juvenile Justice: Addressing the Lives of Delinquent Girls, in the Annual Meeting of the American Society of Criminologists, 3 (2001).

4 Margaret A. Zahn, Jacob C. Day, Sharon F. Mihalic, and Lisa Tichavsky, Determining What Works for Girls in the Juvenile Justice System: a Summary of Evaluation Evidence, 55 crime & Delinquency, 266 (2009).

5 Office of Juvenile Justice Delinquency Prevention (O.J.J.D.P.), Juvenile Justice Statistics, Washington, DC: 2019; Bloom and Covington, supra note 3, at 3.

6 American Bar Association & National Bar Association, Justice by Gender: The Lack of Appropriate Prevention, Diversion, and Treatment Alternatives for Girls in the Juvenile Justice System, 9 Wm & Mary J. of Race, Gender, and Social Justice, 73-97 (2002).

7 Francine T. Sherman, Richard A. Mendel, and Angela Irvine, Making Detention Reform Work for Girls, Annie E. Casey Foundation, 10-12 (2013).

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An Ounce of Prevention Though the average number of juvenile arrests remains stable, girls constitute an increasing proportion of those arrests because, whereas arrest rates among boys are beginning to fall, that among girls have been unaffected by efforts to reduce juvenile crime.8 This disparity is largely the result of the deep-rooted gender-based stereotypes that dominate our juvenile justice system. Unlike boys, girls are most often arrested for nonviolent crimes and status offenses (69%) rather than person offenses.9 In other words, girls often enter the system following allegations of theft, alcohol possession, truancy, and running away.10 While most of these girls’ cases (53%) are not adjudicated in court, pretrial detention, as well as informal sanctions, can require extended contact with the justice system even without formal adjudication.11 These two factors—the types of crimes girls commit and girls’ formal and informal sanctions—coalesce to originate girls’ justice involvement at younger ages and for lesser crimes than their male counterparts.12 If the reasoning for earlier female involvement is paternalistic, it fails to achieve this goal. Justice-involved girls are five times more likely to die by the age of 29 than the non-offending female population—and post-arrest interventions are largely unsuccessful.13 After the initial contact, girls are more likely to violate probation and recommit status offenses while they are less likely to complete treatment programs, even though such programs have been relatively effective for the male population.14 Researchers are now asking: Why don’t these programs work for girls?

In response to these researchers, there is a growing sense that, because girls’ crime, recidivism, and detention rates stem from different factors than those of boys, gender-responsive, intersectional strategies are necessary to address girls’ needs within the system. Because female crime most predictably correlates with adverse childhood experiences (ACEs) and mental health needs, the traditional methods of justice—especially punitive justice—are ineffective.15 Rather, accounting for these differences, “the development and use of interventions tailored differently for girls and boys and young men and young women may reduce their risk of becoming adult recidivists.”16 Barbara Bloom, a pioneer of gender-responsive strategies, defines the approach as “[c]reating an environment through site selection, staff selection, program development, content, and material that reflects an understanding of the realities of women’s and girls’ lives and is responsive to their needs and strengths.”17

This emphasis on both place and programming responds to girls’ needs for therapy and relationships over rules and punishment, while also allowing for treatments that address girls’ histories of trauma, substance dependence, and broken relationships.18 Especially considering that black girls constitute twice the share of the juvenile caseload as that of the total girl population, new program8 O.J.J.D.P., supra note 5, at 18.

9 Actions that are not illegal in themselves but become criminal based on the age of the actor; Acts committed on the person, as opposed to property, from simple assault to rape and homicide; though all person offenses would be considered “violent crime” in the adult system, only particular person offenses are included in the Violent Crime Index (VCI) for juvenile offenders--simple assault is not among VCI crimes.

10 Id. 11 O.J.J.D.P., supra note 5, at 9.

12 O.J.J.D.P., supra note 5, at 18-19; Bloom and Covington, supra note 4, at 4.

13 Linda A. Teplin., Jessica A. Jakubowski, Karen M. Abram, Nicole D. Olson, Marquita L. Stokes, and Leah J. Welty, Firearm Homicide and Other Causes of Death in Delinquents: A 16-year Prospective Study, 134 Pediatrics, (2014).

14 Leila Curtis and Melanie Nadon, Gender Responsive Juvenile Justice: A Girls Court Literature Review Update, Center For Children & Youth Justice, 19 (2018).

15 Rhoades et al. demonstrate that each ACE increases a female’s likelihood to commit a crime by 21% (cited in Center for Children & Youth Justice, 2019); Sherman, et al., supra note 7.

16 Curtis and Nadon, supra note 14, at 20.

17 Bloom and Covington, supra note 3, at 7.

18 Id. at 5.

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An Ounce of Prevention ming must adopt an intersectional lens that addresses the hardships that impact each girl based on identity-related biases and incidents that she will likely face from the outside world.19 III. RESPONSES

Significant work has been done to raise awareness and funding for juvenile justice reform on all levels. Stakeholders—from family members, community leaders, and girls themselves to public officials, policymakers, and scholars—recognize that the public has responded well to “second chance” rhetoric that positions juvenile justice as a critical intervention to ensure public safety and fair opportunities for children.20 Thus, while some still regard juvenile imprisonment as an effective strategy to “straighten out” troubled youth, many people support rehabilitative programming.21 Thus far, juvenile justice reform has drawn resources from grants supported by the federal Office of Juvenile Justice and Delinquency Prevention’s (“O.J.J.D.P.”) and the Juvenile Justice and Delinquency Prevention Act (“J.J.D.P.A.”), as well as state and local allocations that have gained traction through justice reform’s promise that detention reduction will ultimately save taxpayer money, reasoning that it is more expensive to maintaining detention facilities than to run programs.22 As the justice-involved girl population does not respond to otherwise successful reform efforts, gender-specific strategies have attracted attention. The J.J.D.P.A., for example, has designated grants specifically to encourage states to pursue a multitude of gender-responsive reforms, which can be grouped into three major categories: detention reform, justice reform, and prevention. While each of these reform strategies target specific intervention areas, detention reform and justice reform have enjoyed significant research, funding, and support as compared to prevention strategies. After an analysis of these two dominant reform strategies, I conclude that, while important, neither addresses the needs of girls before they enter the justice system, and both lack some degree of intersectional analysis, causing their success to rely upon community and family support that does not always exist.

Thus, the third approach, justice prevention, must be integrated into pre-existing reform efforts to ensure that the needs of at-risk girls are met.

The Better Systems Approach

The first approach, detention reform, utilizes gender-informed strategies to reinvent and improve upon existing detention-based structures to better serve girls. Foundational tenets of this approach hold that detention can be rehabilitative and even necessary to promote public safety, though the current system incarcerates too many girls and does not adequately address their needs. As it currently stands, detention reformers advocate for the use of detention in only the most serious cases, saying that “excessive reliance on secure detention for girls is counterproductive . . . wasting taxpayers’ money, inflicting needless trauma on affected girls, reducing girls’ chances to succeed and avoid 19 O.J.J.D.P., supra note 5, at 9.

20 State-level Detention Reform: A Practice Guide for State Advisory Groups, Annie E. Casey Foundation, 31-32, (2008).

21 Id. 22 Id. Congress originally passed the J.J.D.P.A. in 1974 as the first formal partnership between the federal government and state governments regarding juvenile justice. This came following landmark the court case In Re Gault (1967), which established federal due process requirements to apply to juvenile offenders and brought national attention to juvenile justice policies. Since its initial passage in 1974, the J.J.D.P.A. has been reinstated eight times, most recently in 2018.

The 1998 and 2018 editions have included special sections to address gender-based issues (“Reauthorization of the J.J.D.P.A.”). See In re Gault, 387 U.S. 1 (1967).

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An Ounce of Prevention law-breaking in the future, and providing no benefit to public safety.”23 Namely, detention reform acknowledges that large and gender-mixed detention centers can re-victimize girls; that programming within detention centers is not often tailored to girls’ needs; and that distant facilities can sever important community and family ties.24 To address these issues, detention reform advocates for decreased use of confinement, girl-specific facilities closer to home, better-trained and equipped staff, and better programming within facilities.25

O.J.J.D.P. statistics show that, by and large, states have successfully reduced their traditional incarcerated population, with girls accounting for only 15% of overall juvenile placements; of these incarcerated girls, 77% were placed in smaller private or local institutions rather than larger state-run prisons.26 Despite stated goals to address racial biases in detention,27 reform has so far failed to eliminate the overrepresentation of black girls, who constitute 34% of the detention population, but only 15% of the total girl caseload.28 These girls are also more likely to be placed in detention or long-term secure facilities, as they are charged with person offenses more than any other population.29 This may be due in part to the fact that black girls’ cases are referred to court at higher rates than those of any other group.30 Private institutions often take the form of community programs, such as group homes or hybrid secure/non-secure multidimensional treatment foster care (“M.T.F.C.”), which both aim to serve girls in a home-like setting with specially trained staff.31 M.T.F.C., more so than group homes, takes an individualized approach to each girl within a standardized framework. In M.T.F.C., staff members are specifically trained to respond to the needs of delinquent girls.32 Further, because the goal of community programs (as opposed to detention and correction facilities) is to address the root causes of crime and prevent recidivism, they offer a combination of mental health, special education, and counseling services, among others.33 Several qualitative and quantitative studies show that these M.T.F.C. programs are more effective than group homes for the duration of placement and in reducing recidivism, suggesting that such collective, trauma-informed practices called for by gender-responsive detention reform do address the needs of girls in confinement.34

Still, the success of detention reform is encumbered by the limitations of confinement itself. First, confinement requires limitation and lack of privacy by its very nature. One study (n=700) 23 Sherman et al., supra note 7, at 10.

24 Bloom and Covington, supra note 3, at 7-9; “What happens when girls are in the same programs as boys,” Nccd Center For Girls & Young Women, https://www.justiceforallgirls.org.

25 Id. and Bloom; Covington, supra note 24; Sherman et al. supra note 7, at 14, 48-58.

26 O.J.J.D.P., supra note 5.

27 Annie E. Casey Foundation, supra note 21.

28 O.J.J.D.P., supra note 5, at 13, 19.

29 O.J.J.D.P., supra note 5, at 13.

30 Id. 31 Francine T. Sherman, Detention Reform and Girls: Challenges and Solutions: JDAI Pathways to Detention Reform #13, 2 Boston College Law School Legal Studies Research Paper Series, 58-59 (2005); Patricia Chamberlain, Leslie D. Leve, and David S. DeGarmo, Multidimensional Treatment Foster Care for Girls in the Juvenile Justice System: 2-year Follow-up of a Randomized Clinical Trial, 75 J. Of Consulting And Clinical Psychology, 187-193 (2007).

32 Id. 33 Literature Review: Juvenile Residential Programs, Office Of Juvenile Justice Delinquency Prevention, 7, (2019).

34 Chamberlain et al., supra note 31, at 191; Leslie. D. Leve, Patricia Chamberlain, and Hyoun K. Kim, Riskes, Outcomes, and Evidence-based Interventions for Girls in the U.S. Juvenile Justice System, 18(3) Clinical Child And Family Psychology Review, 265-266 (2015).

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An Ounce of Prevention found that 80% of residential treatment facilities, non-inclusive of long-term secure facilities, still use seclusion and/or restraint.35 While such factors may seem justifiable, they can re-victimize girls with a history of abuse, thus counteracting the progress of trauma therapy programs and forestalling the therapeutic environment necessitated by gender-informed approaches.36 Furthermore, juvenile confinement is inevitably limited by time. Girls who form close relationships with staff and other residents in group programming voice their frustration and even re-traumatization at the loss of their new-found community. As one young woman commented: “‘Once you’re out of [the group home] you don’t have anybody. Like, [the group home] was my family, like, I grew to love all of them, like, bad, and I got really attached and I didn’t want to leave because they were the only people that I had and it’s hard’.”37 Since—as gender-responsive strategies acknowledge—girls grow and heal together, communities intended to stabilize and foster committed girls can destabilize them in the long run as they or their friends end their sentences. For girls that have been involved in the system a few times, the pain of losing previous relationships may prevent them from pursuing similar connections in future placements. Finally, while these programs may be individualized and even effective, they are less often available to girls in detention and correctional facilities, which are more likely to house to co-ed populations, and are less likely to provide good school and recreational programming;38 as a result, black girls—who are more likely to be placed in detention and correctional facilities—are less likely to benefit from such reforms. For these reasons, detention reform alone is not sufficient to address the needs of justice-involved girls.

The More Systems Approach

The second approach, justice system reform, steps into many areas left wanting by detention reform. Unlike detention reform, this approach uses gender-responsive strategies to expand the services offered by the justice system, rather than reimagining what already exists. Importantly, this work should be construed neither as adversarial to detention reform nor as a replacement of it; the two can—and often do—work side-by-side. Just as detention reform works to identify lacking detention services and to reduce unnecessary commitments, justice system reform works to identify programs which justice-involved girls need and create diversion programs that replace unnecessary detentions.

Systems reformers say that, “while it is true that some girls need to be in secure, confined settings, the vast majority of delinquent girls can be more appropriately dealt with in culturally competent, gender-specific programs that are developmentally sound.”39 These programs include both formal and informal sanctions, as well as collaborative community support partnerships that serve girl offenders.40 Importantly, the array of possible offerings addresses the finding that there is no one perfect program for every girl; rather, through programs ranging from motherhood visits to career programs, system reform can foster partnerships to serve myriad personalities.41 35 Green-Hennessey and Hennessey, cited in O.J.J.D.P., Literature.

36 Sherman et al., supra note 7, at 79.

37 Anonymous interview quoted in: Merry Morash, The Nature of Co-occurring Exposure to Violence and of Court Responses to Girls in the Juvenile Justice System, 22 Violence Against Women, 923, 935. (2016).

38 Andrea J. Sedlak, Survey of Youth in Residential Placement: Conditions of Confinement, Syrp Report, 16, 28 (2016).

39 American Bar Assn. and National Bar Assn., supra note 6, at 90.

40 Id. at 89-91; Diversion from Formal Juvenile Court Processing, O.J.J.D.P. Model Programs Guide: Literature Review. 3-4 (2017) 41 Model Programs Guide, O.J.J.D.P.. https://www.O.J.J.D.P..gov/MPG/.

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An Ounce of Prevention

Indeed, with 32% of justice-involved girls receiving formal and informal sanctions outside of probation and detention, alternate systems are in demand.42 One of the most anticipated system-reform projects is “girls’ court,” a program which, in New Mexico California, Hawai’i, and soon Washington state, enables girls to circumvent the traditional court process.43 In these special courts, various female experts, witnesses, and community members come together in a setting informed by gender-responsive strategies to address the needs of individual girl offenders.44 After the initial court date, girls, their families, and community partners come together each month to participate in efforts that include community service projects, group activities, and education sessions.45 Other system-reform approaches are less holistic than girls’ court, offering specialized services such as sexual health counseling, mentoring, after-school programming, and career planning.46 In Massachusetts, for example, legal scholars, juvenile justice administrators, and developmental psychologists have partnered to create Healthy Families Massachusetts, which pairs young, justice-involved mothers with home visiting teams to encourage and teach healthy parenting practices.47 Whether holistic or specific, such services expand the reach and ability of the justice system to adequately serve justice-involved girls.

The flexible nature of the system-based reform approach has many strengths. Programs created through this approach are better able to cater to specific needs without re-traumatization or re-victimization. While these programs also have term limitations, they often rely on less rigid professional relationships than detention programs; indeed, juveniles involved in mentorship-based diversions may opt to continue contacting mentors.48 Furthermore, programs can break the monolith of other juvenile justice programs, catering to a range of identities and populations, from specific focuses on teen mothers, as mentioned above, to black girls and queer people. With proper support and funding, system reform could surely improve girls’ experiences with the juvenile justice system.

Still, justice system reform faces two major shortcomings. First, most available programming options cater to both boys and girls.49 In fact, O.J.J.D.P.’s Model Programs Guide neither considers gender as a criterion nor does it include gender-based research.50 While individual sessions or staff members may cater directly to girls, current system reforms, by and large, are co-ed and lack gender-responsive, girl-specific programming that address the distinct needs of girls. Until system reform embraces gender-specific programming, it is unlikely to meet its goals. Secondly, as the name suggests, system-based reform requires system involvement. Partnerships between the juvenile justice system and community programs only become available to girls after they have been identified, at which point trauma, health problems, and relational issues have likely manifested. Therefore, system reform can only react to girls’ situations.

42 O.J.J.D.P., supra note 5.

43 Sarah Klein, Girls in The Juvenile Justice System: The Case For Girls’ Courts. American Bar Association (2012). https:// www.americanbar.org/groups/litigation/committees/childrens-rights/articles/2012/ girls-juvenile-justice-system-casefor-girls-courts/; Wendy S. Heipt, Girls’ Court: A Gender Responsive Juvenile Court Alternative, 13 Seattle J. For Social Justice, 834 (2015).

44 Heipt, id. at 833.

45 Hawai’i girls court. Hawai’i Girls Court, (2013). http://www.girlscourt.org/.

46 Diversion Programs. Youth.gov. https://youth.gov/youth-topics/juvenile-justice/diversion-programs 47 Francine Sherman, Jessica H. Greenstone Winestone, and Rebecca Fauth, Collaborations Between the Juvenile Justice System and Home Visiting Programs, Boston College Law School Faculty Papers, 1, 2 (2018).

48 Model Programs Guide, supra note 48 at 1-4.

49 The Models for Change Juvenile Diversion Workgroup. Juvenile Diversion Guidebook. John D. and Catherine MacArthur Foundation: 9,75 (2011).

50 Model Programs Guide, supra note 50; Model Programs Guide, supra note 48.

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An Ounce of Prevention The Root Causes Approach

Rather than to “map the flow of girls through the juvenile justice system and identify points at which the system can divert or treat girls more effectively,”51 as the previous two approaches suggest, the prevention approach recognizes that it is unnecessary to wait until girls are justice-involved to intervene. Combining the knowledge of the previous two approaches, prevention acknowledges: first, that the stated goal of girls’ justice reform is to reduce girls’ involvement in the system, reduce costs, and prevent re-traumatization and re-victimization; second, that researchers have identified the causes of criminality among girls; and third, that officials know that ACEs and mental health disorders are strong predictors of recidivism. Yet, despite evidence which shows that gender-responsive programming—including trauma-informed care, substance abuse programs, and relational development—improves girls’ quality of life and may reduce recidivism, the system waits until girls become involved with the juvenile justice system to implement such programs.52 The prevention approach asserts that waiting is unacceptable.

The continued rise of girls in the justice system, despite falling rates of crime, evidences the need for prevention.53 Juvenile justice reformers and practitioners, while continuing to address the needs of involved youth, should turn an eye to those not yet identified: It is never too early to reach out to a young girl to encourage emotional growth and empowerment in an effort to uphold and respect their dignity, for this is not an issue that government alone can solve . . . Teachers, youth pastors, additional family members, and other adult role models each have an opportunity to build into young women through the power of mentoring and relationships – especially for girls more at risk of delinquent behavior due to parental neglect, family instability, abuse, or patterns of family criminality.54

Those who have begun pursuing preventative gender-responsive programming for at-risk girls frequently voice frustration, however, at the lack of available research and models that can inform their efforts.55 Regarding models, Florida’s PACE Centers for Girls and O.J.J.D.P.’s Safe Futures pilot provide viable options. Florida’s PACE Center for Girls models the potential of prevention projects, with a “holistic, gender-specific, strength-based, and trauma informed . . . model [that] addresses the needs of girls . . . as one of the most effective programs in the country for keeping girls from entering the juvenile justice system.”56 These female-only centers exist across the state, have graduated over 40,000 girls, and currently offer research-backed and proven educational and emotional support services to girls who are at-risk for justice involvement.57,58 Like PACE, SafeFutures—a large-scale joint project 51 American Bar Assn. and National Bar Assn., supra note 6, at 91.

52 Zahn, supra. note 4 at 189; David E. Barrett, Ju Song, Antonis Katsiyannis, and Dalun Zhang, Females in the Juvenile Justice System: Influences on Delinquency and Recidivism, 24 J. Of Children And Family Studies, 431-432, (2015); Hawai’i Girls’Court, supra. note 45.

53 O.J.J.D.P., supra note 5, at 18.

54 Sara Burback, Hidden from View: The Plight of Girls in Juvenile Detention. Shared Justice, (Oct. 20, 2016), http://www. sharedjustice.org/domestic-justice/2016/10/20/hidden-from-view-the-plight-of-girls-in-juvenile-detention.

55 Most holistic programs for “rebellious” girls come in the form of expensive boarding school options. Caterina Gouvis Roman, Rebecca Naser, Shelli B. Rossman, Jennifer Yahner, and Jennifer Lynn-Whaley, At-risk and Delinquent Girls Programs in the SafeFutures Demonstration, Urbaninstitute, 106, (2006).

56 PACE Center for Girls, https://www.pacecenter.org/pace-home.

57 Id. 58 Megan Millenky, Louisa Treskon, Lily Freedman, and Caroline Mage, Focusing on Girls’ Futures: Results from the Evalua-

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An Ounce of Prevention between Urban Institute and O.J.J.D.P.—targeted at-risk youth to prevent justice involvement. SafeFutures, however, implemented a “comprehensive strategy” rather than an educational and gender-responsive strategy; nonetheless, SafeFutures’s programming recognized the manifold factors which lead to justice involvement, and emphasized the development of “positive social orientation, prosocial bonding, and clear and positive standards of behavior.”59 To achieve its goals, SafeFutures enacted a community-responsive model that relied upon collaboration with local organizations, suggestions from on-the-ground researchers, and a commitment to cross-generational community involvement.60 Though these two programs are wide-reaching and large-scale, prevention programs could easily go beyond school- and camp-based programs to include scouting, sports, and other community-building activities.61 Though prevention practitioners feel that their work is overlooked, they remain confident in its effectiveness and continue to demand research to prove and improve their programs. SafeFutures’s final report tells that, in 2006, they did not feel that others understood the value of their work: “Staff often stated that prevention was not valued as highly as intervention . . . Some staff believed that more efforts providing gender-relevant prevention programs would yield higher returns when looking at outcomes such as arrests or incidence of crimes committed by girls.”62

Six years later, a research team headed by David Barrett echoed these sentiments, remarking that, despite the “urgent” need for prevention and simultaneous “paucity” of empirical support, the few studies that exist on the topic of girl crime prevention convince them “that multi-systemic programs—involving schools, communities, families and correctional settings—that address the young female’s need for consistent and nurturing relationships and that provide models for academic and social success may be most helpful in reducing, if not preventing, female delinquency.”63 Prevention, being community-based, gender-responsive, and inclusive of all girls, regardless of involvement status, must be prioritized in the conversation, research, and action surrounding girls’ justice reform.

Admittedly, prevention poses significant difficulties—but if it were easy, the problem would have been solved by now. Both model programs, not to mention sports and scouting, require funding which neither communities nor girls themselves have. In order to lessen, not deepen, current justice inequality, it is crucial that such programs are need-blind. In addition, such programs must be well-researched and modeled. Given provisions in the J.J.D.P.A. committing to “guarding against and reducing racial and ethnic disparities,” “advancing research,” and “safeguard vulnerable and high-risk youth,”64 perhaps prevention programs and prevention research could receive federal funding grants.

Along with the need for funding and research, it must be acknowledged that there can be no one-sizefits-all program; rather each program will have to be tailored to the needs of the community and the girls involved. This, even with adequate research, will prove challenging.

While the prevention approach does not enjoy the same attention as detention- and system-retion of PACE Center for Girls, MDRC, (2019).

59 Gouvis Roman et. al., supra note 55 at x, xi.

60 Id., at ix-xiii.

61 Rebecca Shuttleworth, Empowering women and girls through sports, MEDIUM, (June 17, 2015), https://amysmartgirls. com/empowering-women-and-girls-through-sports-cb75bb4985a4.

62 Gouvis Roman et al., supra note 55, at 108.

63 Barrett, supra note 52, at 427, 432.

64 CJJ’s Policy Platform Supporting JJDPA Reauthorization, Coalition For Juvenile Justice, (1974). http://www.juvjustice. org/juvenile-justice-and-delinquency-prevention-act/reauthorization-jjdpa.

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An Ounce of Prevention form approaches, it carries vast potential to reduce girl crime and juvenile justice involvement. First, because prevention tackles the root causes of crime before girls become involved in the justice system, prevention programs are not punitive and thus do not carry with them the negative connotations of punitive spaces. Instead, preventative spaces are those that are more likely to be perceived as safe and therapeutic. Next, community-based prevention programs provide mentors and friends from within a girl’s community, making her more likely to form a continuing relationship. Furthermore, by addressing the use of drugs and alcohol while simultaneously providing alternative coping mechanisms, prevention programs can obviate girls’ dependence on substances before it begins. Perhaps most importantly, these programs can create a stable community for girls who may not otherwise have accessed one.

IV. CONCLUSION Despite some improvements, the juvenile justice system still fails to address the needs of girls.

Thus, a wide range of reform efforts have been researched, proposed, and implemented, though none have been fully successful on their own. The three main categories toward which these efforts have been directed are preventative, detention, and system reform. Because there remain significant roadblocks for full-scale prevention programs, detention- and system-reform approaches must not be abandoned. Though neither is perfect on its own, both fill important roles to ultimately improve girls’ experiences in the juvenile justice system. Further, these programs could serve as resources to new prevention programs, sharing best practices and experiences. Therefore, while prevention-based approaches provide the greatest potential for girl justice-involvement reduction, they must be implemented alongside, not in place of, reformed detention and systems. Given the immensity of necessary change, some may ask: is this possible? Are these approaches worth pursuing? The juvenile justice system did not always exist, but sprung up from a recognition by a small group of Chicago women that the justice system was ill-equipped to respond to the needs of the child population it served.65 With this in mind, they began a small court and reformatory for children, from which today’s nation-spanning system grew. When it becomes clear our systems are not enough to meet society’s needs, it is possible to change them.

65 Quinn Myers, How Chicago’s Women Started the World’s First Juvenile Justice System, National Public Radio, (May 13, 2019). https://www.npr.org/local/309/2019/05/13/722351881/how-chicago-women-created-the-world-sfirst-juvenile-justice-system

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A Quest for Safer Living:

The History and Impact of Manufactured Housing Law in America Andrew Abad

Georgetown University

Abstract As house values rise in the United States, manufactured housing represents a less expensive path to homeownership. To promote the durability and affordability of these homes, the U.S. Department of Housing and Urban Development set regulations on manufactured houses in 1973 with The National Manufactured Housing Construction and Safety Standards Act (42 U.S.C. 5401). This paper discusses the history of HUD’s codes and the impact of the codes upon homeowners.

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A Quest for Safer Living I. INTRODUCTION Given stagnant average weekly earnings and the large costs of purchasing a standard home in the United States, many Americans are forced into more affordable paths to housing.1 One such option is to rent a house or apartment, but doing so leaves buyers vulnerable to rent increases and disallows them from selling the space when they move. Instead, many Americans have looked to manufactured homeownership, formerly known as mobile homeownership, for a less expensive housing option.2 Manufacturers build these homes remotely and transport them to the home buyer, as opposed to building them on-site, as is the case for standard housing. This process significantly cuts the cost of manufactured homes, which have an average price of around $109,100 for a double sized home (which is built out of two sections) and $63,600 for a single sized home (which is one section, and therefore smaller).3 These prices are less than half of the median sale price of houses in the United States, (around $231,000).4 As a result, over 20 million Americans live in affordable, subsidy-free manufactured housing.5 Because manufactured housing is an area of interest for consumers seeking affordable housing, regulators have taken action to ensure that the homes are safe. In 1974, The National Manufactured Housing Construction and Safety Standards Act 6 (“NMHCSSA”) gave the U.S. Department of Housing and Urban Development (“HUD”) the authority to set and enforce standards for the design, building, and installation of homes that meet its definition of manufactured housing, which is: A structure, transportable in one or more sections, which in the traveling mode is eight body feet or more in width or forty body or more in length or when erected on site is 320 or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the quired utilities, and includes the plumbing, heating, air conditioning, and electrical systems contained therein…7

To ensure that manufactured houses provide suitable living conditions for residents, all manufactured homes constructed after June 15, 1976 must follow HUD’s guidelines of “quality, durability, affordability, and safety” or else face penalties for violation.8 This paper will discuss the legal history preceding the NMHCSSA and its impacts upon the manufactured housing industry.

II. HISTORY OF MANUFACTURED HOUSING INDUSTRY STANDARDS

At its inception in the 1930s, manufactured housing was part of the recreational vehicle industry.9 Organized representation of the manufactured housing industry was regional, with the Mobile Homes Manufacturers Association (“M.H.M.A.”) representing the Midwest and Eastern United States and the Trailer Coach 1 U.S. Department of Labor Bureau of Labor Statistics, Real Earnings - February 2020 (2020), https://www.bls. gov/news.release/archives/realer_03112020.htm.

2 General Program Information, U.S. Department Of Housing And Urban Development, https://www.hud.gov/program_offices/housing/rmra/mhs/faq.

3 All figures refer to prices from April 2019. Average Cost of a Manufactured Home in 2019, Homes Direct (Oct. 31, 2019), https://www.thehomesdirect.com/blog/average-cost-of-a-manufactured-home.

4 In this case, using a median home value is appropriate because of the skewing effects of extreme luxury homes; United States Home Prices and Values, Zillow (June 30, 2018), https://www.zillow.com/home-values/.

5 Michael S. Henretty & Jason McJury, HUDs Model Installation Standards for Manufactured Homes, International Code Council (September 11, 2017), https://iccsafe.org/wp-content/uploads/HUDs-Model-Installation-Standards-for-Manufactured-Homes.pdf.

6 National Manufactured Housing Construction and Safety Standards Act, 42 U.S.C. § 5401 (1974).

7 Id., at § 5402.

8 Manufactured Home Construction and Safety Standards, U.S. Department Of Housing And Urban Development, https://www.hud.gov/hudprograms/mhcss.

9 William C. Apgar et. al., An Examination of Manufactured Housing as a Community- and Asset-Building Strategy: Report to the Ford Foundation 8 (2002).

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A Quest for Safer Living Association (“T.C.A.”) representing the West.10 Each of these organizations developed their own construction standards during the 1950s.11 The post-World War II period saw a surge in housing demand which incentivized home manufacturers to produce mobile homes that could be relocated and still provide permanent living spaces.12 As the industry grew nationwide, the American National Standards Institute (“A.N.S.I.”) combined the M.H.M.A. and T.C.A. codes to form its own A.N.S.I. standards in 1964, which were enforced by 46 states. 13 In 1973, Congress passed federal manufactured housing regulations in the NMHCSSA, finding that manufactured housing provided a crucial supply of affordable houses for the American housing market.14 The NMHCSSA takes into account standards developed by the National Fire Protection Association (“N.P.F.A.”) and the Manufactured Housing Institute (“M.H.I.”), as well as the previously formed A.N.S.I. standards.15 The NMHCSSA changed the manufactured housing industry by giving HUD the authority to certify third-party Primary Inspection Agencies and Design Approval Primary Inspection Agencies to inspect houses at construction plants, making local government inspections unnecessary.16 Among other factors, HUD’s third-party inspections have made the process of manufactured housing construction and installation more affordable, as was a purpose of the NMHCSSA, because the code allows builders to avoid the delays incurred by local government inspections.17 In 2000, The Manufactured Housing Improvement Act (“S.1452”) amended the NMHCSSA by adding the Manufactured Housing Consensus Committee (“M.H.C.C.”) as well as new rules regarding manufactured home installation and dispute resolution.18 The M.H.C.C. replaced the National Manufactured Home Advisory Council that existed prior to S.1452, and is involved in HUD rulemaking and interpretations of the N.M.H.C.S.S.19 As a response to the quickly growing manufactured housing industry, S.1452 sought to create a process to update HUD’s safety standards in a timely manner.20 In so doing, Congress has attempted to modernize the NMHCSSA and to increase its funding so that it can continue to support the manufactured housing industry.21 III. IMPACTS The immediate benefits of the NMHCSSA are its requirements that manufactured houses be safe, durable, and affordable. These regulations protect home buyers and counteract the stigma that manufactured homes are low-quality.22 Regarding safety and durability, HUD regulates fire resistance and energy efficiency as 10 Of note, the Mobile Homes Manufacturers Association was originally referred to as the Trailer Coach Manufacturers Association. Al Hesselbart, A History of The Manufactured Housing Institute, Manufactured Housing Institute (2017), http://www.manufacturedhousing.org/history/.

11 Id. 12 William C. Apgar et. al., supra note 9.

13 Al Hesselbart, supra note 10; Manufactured Home Standards, Santiago Financial Incorporated, www.mhousing. com/mhstandards.asp.

14 Supra note 6, at § 5402.

15 James Milton Brown & Molly A. Sellman, Manufactured Housing: The Invalidity of the “Mobility” Standard, 19 Urb. Law. 367-399, 377 (1987).

16 Id. 17 William C. Apgar et. al., supra note 9; 42 U.S.C. § 5402.

18 S. REP. No. 106-274 (2000); Recent Program Activity, U.S. Department Of Housing And Urban Development, https://www.hud.gov/program_offices/housing/rmra/mhs/faqs72010.

19 Id. 20 Id. 21 Id. 22 Austin Carrico, How We’re Fighting Stigma Towards Manufactured Housing This Month, Prosperity Now (Oct. 18, 2018), https://prosperitynow.org/blog/how-were-fighting-stigma-towards-manufactured-housing-month; Malcolm Lewis et al., Sustainability in Manufactured Home Communities (2012).

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A Quest for Safer Living well as comfort measures such as heating, cooling, plumbing, and electricity. HUD’s energy efficiency codes are so successful that replacing a pre-NMHCSSA home is cost effective. This is to say that an owner could replace her pre-1976 house with a new one that is up to code and save enough money in energy costs to offset the purchase of the new house within 20 years.23 With all of these controls, HUD ensures that manufactured housing is on par with site-built homes in terms of quality. As site-built housing prices rise in the United States, manufactured home shipments have been increasing, changing the landscape of American housing.24 A secondary benefit of the NMHCSSA is that it leads to more environmentally friendly home development. Because the NMHCSSA provides codes for manufactured houses, home manufacturers have found ways to organize an efficient building process.25 The manufactured home building process has several advantages over that of site-built houses, including lower noise pollution and erosion, as the process happens in a building center instead of a plot of residential land.26 Manufactured home builders also make use of efficient production lines and bulk materials in their process.27 These benefits reduce waste and drive down the price of manufactured homes.

The relatively low price of manufactured homes is a third benefit of the NMHCSSA. As previously mentioned, one of HUD code’s goals is to keep manufactured housing affordable. In addition to regulating building procedures, HUD promotes affordability and protects customers by offering a Housing Counseling Clearinghouse. The Clearinghouse connects first-time buyers and homeowners with approved counselors to navigate financial decisions.28 Through their website, HUD also directs potential home buyers to the Federal Housing Administration (F.H.A.) and other government agencies that offer loans for manufactured homes.29 Because of the NMHCSSA, these agencies can offer loans knowing that the home buyer will be investing in a quality house. With this help from HUD, a larger pool of Americans can now afford to purchase a house.

IV. CONCLUSION

The NMHCSSA has followed a long history of manufactured housing standardization. As the manufactured housing industry has evolved after events such as World War II and others, construction and safety standards have developed in response.30 Such changes have been necessary to meet the needs of prospective homeowners who seek safe, durable housing. The NMHCSSA protects homeowners and the environment by regulating fire resistance, energy efficiency, temperature control, and utility service.31 At the same time, manufactured housing legislation has incorporated affordability concerns into its construction code. The NMHCSSA lessens the burden placed upon home buyers by offering a Housing Counseling Clearinghouse which provides financial guidance for first-time buyers.32 HUD also connects potential buyers to loans from the federal government.33 In its current form, the NMHCSSA supports the modern manufactured housing industry by ensuring houses are safe, environmentally conscious, and affordable for residents.

23 Id. 24 Hari Kishan & Rahul Karunakar, U.S. house prices to rise at twice the speed of inflation and pay: Reuters poll, Reuters (Jun. 6, 2018, 12:48 AM), https://www.reuters.com/article/us-usa-property-poll/u-s-house-prices-to-rise-at-twicethe-speed-of-inflation-and-pay-reuters-poll-idUSKCN1J20G3; MHS Annual Data, United States Census Bureau (Sept. 9, 2019), https://www.census.gov/data/tables/time-series/econ/mhs/annual-data.html.

25 Understand The Process, Express Modular (2008-2020), https://expressmodular.com/understand-the-process/.

26 Crystal Adkins, Manufactured Homes are Earth Friendly!, Mobile Home Living (Jun. 16, 2019), https://mobilehomeliving.org/manufactured-homes-are-earth-friendly/.

27 Id. 28 Frequently Asked Questions, U.S. Department Of Housing And Urban Development, https://www.hud.gov/program_offices/housing/rmra/mhs/faqs.

29 Id. 30 William C. Apgar et. al., supra note 9.

31 Malcolm Lewis et al., supra note 22.

32 Frequently Asked Questions, supra note 28.

33 Id.

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