The City Bar’s Response to the New Administration

“After the Election, What’s Next?” was the title of New York City Bar Association President John S. Kiernan’s column in late November. After extolling the bipartisan tradition of the peaceful transition of power, he wrote that another “defining value that should equally cut across political lines, and that equally warrants celebration, is the value of unreserved solicitude for and protection of the rule of law, the Constitutional and other rights of all, the needs of individuals and groups who are unable to protect themselves and the fair, efficient, and orderly administration of justice.” He added that the City Bar “has consistently believed that advocacy in support of these values, especially if they appear to be challenged by proposed executive, legislative, or judicial action, is entirely consistent with its institutional commitment to non-partisanship and inclusiveness of the full spectrum of political views. As an association of lawyers, we must be champions of the law.”  

The Executive Order Restricting Immigration
Following President Trump’s signing of an executive order on January 27 restricting, among other things, immigration from seven Muslim-majority countries, the City Bar Justice Center‘s Immigration Project had an ongoing presence at JFK airport, along with members of our Immigration & Nationality Law Committee (Farrin Anello, Chair) and other immigration experts providing services to detained travelers. The Justice Center also began making its Federal Pro Se Legal Assistance Project office at the Eastern District Courthouse available for experienced habeas attorneys (who are admitted to the Eastern District and have ECF numbers) to file pro bono motions on behalf of people affected by the ban. For the many members who expressed concern and interest in getting involved following the ban, the Association and the Justice Center produced a “Special Briefing” podcast on the executive order and the complex immigration-law issues in connection with it. 

On February 6, through the efforts of the City Bar’s Immigration and Nationality Law Committee, International Human Rights Committee (Anil Kalhan, Chair) and Council on International Affairs (Martin Flaherty, Chair), the City Bar and the International Law Section of the ABA proposed, and the ABA substantially adopted, a resolution urging President Trump to withdraw the January 27 executive order. 

On February 13, regarding comments that President Trump had made about the district court judge who issued the temporary restraining order blocking the January 27 executive order, as well as the judges on the Ninth Circuit who heard the appeal, Kiernan wrote, “These comments, not consistent with prior Presidents’ restraint in commenting about individual judges and plainly aimed in part at influencing the independent judgment of the judiciary and the public’s perception of the trustworthiness and correctness of the court’s rulings, were not proper. Lawyers nationwide should continue to speak out in defense of the Judiciary if the President or members of his Administration continue to make such comments going forward.”
 

PRESIDENTIAL TRANSITION MEMORANDA
As it has traditionally done following the election of new presidents (and governors and mayors), the City Bar in January began releasing a series of transition memoranda prepared by its committees and directed to the new Administration and Congressional leadership.

National Security Policies
The Task Force on National Security & the Rule of Law (Mark R. Shulman, Chair) wrote to the Trump Administration expressing its concerns about policies being considered related to the detention and interrogation of individuals thought to be involved in terrorism. The Task Force urges President Trump to close the detention facility at Guantanamo Bay; to continue to observe the strong presumption in favor of civilian-court prosecutions; and to reject any proposal to reopen the so-called “CIA Black Sites” or otherwise hide detainees. With respect to the interrogation of detainees, the Task Force warns against the use of interrogation techniques including waterboarding that “amount to torture and cruel, inhuman, and degrading (CID) treatment and are prohibited by both domestic and international law.”

Environmental Issues
With the help of the Environmental Law Committee (Michael G. Mahoney, Chair), Energy Law Committee (Daniel W. Rosenblum, Chair), International Environmental Law Committee (E. Gail Suchman, Chair) and Climate Adaptation Task Force (Stephen L. Kass, Chair), the City Bar sent a letter to President-Elect Donald Trump and his transition team on environmental issues and policy, urging them to preserve the hard-won progress that had been achieved over many years to protect and improve America’s environment. Specifically, it lauded the federal-state partnership created by the Clean Air Act, the Clean Water Act, and other laws that had provided “clear direction and consistency in the environmental requirements imposed across the country, creating the predictability required for business to operate efficiently,” and underscored the importance of funding and staffing the U.S. Environmental Protection Agency. The letter also pointed to the economic benefits of encouraging the development of renewable energy technology and promoting energy efficiency in transportation, industry, and infrastructure.

Mental Health Policies
The Mental Health Law Committee (Naomi Weinstein, Chair) urged the Trump Administration to consider a number of measures to provide better treatment and opportunities to millions of Americans with mental illness, including: (1) programs that provide better training for police officers who interact with persons with mental illness or who are in psychiatric crisis; (2) programs to provide better mental health treatment for persons in correctional facilities; (3) programs to provide better community supports for persons with mental illness; and (4) programs to provide mental health education in public schools to reduce stigma and provide early access to treatment.  The report cites sobering statistics, such as the fact that mental illness affects approximately 44 million adults in the United States, or about one in five Americans.

Israeli-Palestinian Conflict
The Middle Eastern & North African Affairs Committee (Robert E. Michael, Chair) urged the Trump Administration to focus on achievable goals that can create an environment of trust from which to build toward more plenary solutions when approaching the Israeli-Palestinian conflict. The Committee supported two recommendations from the Economic Cooperation Foundation that would appear to be small adjustments to the Oslo Accords that can significantly ease the lives of many Palestinians living in Israeli territory and foster the rule of law even in a geographic area where there is political discord. The Committee also supported a proposal to create a special civilian administration to address the economic and security challenges in East Jerusalem.

Improving the Department of Veterans Affairs Claims and Adjudication Process/Continuing the Joining Forces Initiatives
The Military Affairs & Justice Committee (Michael Richter, Chair) offered suggestions to the Trump Administration on ways the U.S. Department of Veterans Affairs (“VA”) could improve its benefit claims and adjudication process, including by increasing the number of skilled, trained attorneys reviewing appeals; creating a statutory right to qualified counsel for veterans seeking benefits; and allowing veterans to retain an attorney prior to the filing of a Notice of Disagreement provided that the attorney either represents the veteran pro bono or on a contingency basis for past-due benefits. The Committee also wrote to President Trump and the First Lady urging them to continue “Joining Forces,” an initiative focused on assisting military families in the areas of employment, education, and wellness. The initiative was a critical partner during the Committee’s efforts in passing state legislation that recognized the out-of-state occupational licenses of military spouses ordered to move to New York. 

Consideration of Foreign Law by Courts in the United States
The Foreign & Comparative Law Committee (Maria M. Patterson, Chair) raised concerns over efforts to prohibit or impede courts – through legislation or judicial litmus tests – from considering or applying foreign, international, or Sharia law, on the grounds that such efforts are unconstitutional, unwise, and unworkable, and have almost universally been the result of poor legal scholarship driven by Islamophobia. To interfere with the established functioning of the courts, in which the parties have the freedom to contract and apply non-U.S. law as they deem appropriate, is unnecessary and a dangerous interference with our Constitution and the personal lives and commercial interests of our citizens.

Immigration
The positions of the prolific Immigration & Nationality Law Committee in recent years are more relevant than ever. In May 2015, the Committee wrote to then-President Obama and the Secretary of Homeland Security to express serious concern about the large-scale detention of immigrant mothers and children, including with regard to the lack of appointed counsel for the families.

Beginning over five years ago, the Committee, collaborating at various times with the Committees on Criminal Courts (Kerry Ward, Chair), Criminal Justice Operations (Risa B. Gerson, Chair), Civil Rights (Philip Desgranges, Chair), Corrections & Criminal Reentry (Alex Lesman, Chair), and Domestic Violence (Ian Harris, Chair) expressed support for the New York City Council’s efforts to limit the City’s collaboration with U.S. Immigration and Customs Enforcement (“ICE”) in holding immigrant New Yorkers subject to ICE detainers. The committees argued that ICE detainers undermine basic principles of fairness and due process, erode community trust and raise concerns of racial profiling, interfere with the criminal justice system, cost the City millions of unreimbursed dollars every year as individuals are held on detainers in city jails for an average of 73 days longer than those without an ICE detainer, and endanger public safety by discouraging immigrants from cooperating with law enforcement. 

And this January, along with the Family Court & Family Law Committee (Glenn Metsch-Ampel, Chair), Council on Children (Jane F. Golden) and Children & the Law Committee (Sara L. Hiltzik, Chair) the Committee supported prompt passage of the Bar Removal of Individuals Who Dream and Grow our Economy, or BRIDGE Act, which would provide critical protection to the nearly 800,000 people that the Deferred Action for Childhood Arrivals (DACA) program has allowed to study or work in the United States, and to contribute to their communities by increasing tax revenue, higher education, home and auto ownership, and public safety.   

Animal Welfare
The Animal Law Committee (Lori Barrett, Chair) sent a transition memo to the Trump Administration urging it to adopt the Committee’s recommendations on several animal welfare issues, including: (1) requiring the USDA to promulgate regulations concerning the humane treatment of birds under the Animal Welfare Act; (2) improving the USDA’s enforcement relating to licensing dealers and exhibitors that repeatedly violate the Animal Welfare Act; (3) supporting the USDA’s horse soring rule, which would prohibit the intentional infliction of pain to a show horse to create an exaggerated gait; and (4) supporting the Pet and Women Safety Act, which would amend sections of the Violence Against Women Act to extend protections for the pets of victims of domestic violence and sexual assault.

Information Technology and Cyber Law
The Information Technology and Cyber Law Committee (Maia T. Spilman and Joseph V. DeMarco, Co-Chairs) sent a transition memo to the Trump Administration which provided recommendations on cybersecurity, including: investing in cybersecurity as part of physical infrastructure; minimizing barriers to broadband service and access; enacting privacy-related laws (consistent with First Amendment requirements) to promote uniformity and compatibility with data protection laws around the world; updating the Electronic Communications Privacy Act to provide greater search and seizure protections to private electronic communications while maintaining the government’s ability to obtain such communications with proper judicial review; and working with Congress to develop sound legislation on the issue of compelled assistance to law enforcement. 

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More transition memos are coming. To stay up to date on the City Bar’s response to the new administration, visit this web page or check the eNews sent to members most Mondays.