Recapping the Homeland Security Institute - Part 2

by Nina Hart

On August 21–22, 2014, the American Bar Association hosted the Ninth Annual Homeland Security Institute in Washington, D.C.  The previous post focused on several major themes of the Institute.  This week’s post will focus on issues in immigration law, which was the topic of several panels.  These reflections come from the following presentations: America’s Immigration Agenda and Executive Power in Immigration Law.  A copy of the full agenda is here.

Part Two

One topic of interest at the Homeland Security Institute was improving immigration law and practice to enhance national security.  Panelists discussed the politics and policy behind previous and pending immigration reforms and the authority vested with both the legislative and executive branches that may enable such reforms.

Congressional Action

Congress has been active—at least in terms of debate—in the area of immigration law for decades, if not centuries.  Much of the modern immigration system, however, is based on the Immigration & Naturalization Act of 1952 (INA).  The INA has been amended several times as Congress has revisited certain policy questions in an attempt to modernize and improve the system.  For instance, in 1986, Congress shifted its attention to illegal aliens, and passed the Immigration Reform & Control Act (IRCA), which focused on paths to legalization and, for the first time, imposed sanctions on employers who knowingly hired illegal aliens.  In 1990, Congress returned its attention to immigrants who arrived legally, and passed amendments to the INA to address visa petition backlogs and how to better adjudicate family reunification cases. 

Since the 1990s, the two political parties have continued debating these issues, particularly with respect to increased border security measures and how to address the issue of illegal aliens.  Despite the high level and volume of debate, no major legislation has been passed since 1996.  Much of this inaction has less to do with policy divergences, but results from political incentives to take or not take action.  As one panelist pointed out, in 2006, the Senate introduced but did not pass a bill addressing border security and the e-verify system.  At the time, the parties could not reach a consensus on the substantive policies in the bill.  Ten years later, however, the parties have both moved to the center.  They largely agree that the path to legalization should be longer and more resources should be spent on border security.  However, the emotional undertones and political forces at work have prevented congressional action.  In particular, the demographic makeup of individual congressional districts has had a powerful effect on the political incentives of members of Congress with respect to their stances on immigration reform.  For example, there are 24 districts with an Hispanic population of over 25%.  Republicans Poe and Denham represent two of those districts, which, at first, may indicate that they have similar incentives with respect to supporting immigration reform.  However, President Obama won one of those two districts in the last election, which means that these two Republican members of Congress actually have divergent political incentives.  This complicated political backdrop, the panelists concluded, is largely the cause of the ongoing political impasse on immigration reform.

This political impasse is currently playing out with respect to Senate Bill 744 (“SB 744”), which has passed the Senate and is awaiting action in the House.  However, because of the ever-present electoral concerns, which are magnified by the fact that this is an election year, it seems unlikely that any action will be taken before the end of this congressional session.

Executive Action

In view of the active role that Congress has historically played in the immigration arena and the current political situation, one key question arises with respect to the Executive Branch.  How much discretion and “space” do the executive agencies have to shape policy?

At a general level, there is a consensus that the Executive Branch has broad authority to act in the area of immigration law.  However, numerous factors influence agency discretion and these factors may lead to more or less discretion in particular cases.  First, agencies are always limited by what Congress has expressly mandated.  Second, individual actors also influence agency powers in the sense that the people interpreting the statutes may reach conclusions about the mandates that vary over time and possibly with what Congress may have intended.  For example, in 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  Pursuant to this Act, agencies had greater freedom to make rules increasing the grounds for deportation.  The ALJs also interpreted this Act to reduce their ability to grant clemency in deportation cases.  Congress disagreed with this interpretation and subsequently wrote a letter to the agencies to remind them of the many tools, especially prosecutorial discretion, at their disposal to address deportation.  Despite this letter, the agencies continued to believe that their discretion had been reduced and concluded that this was the result of Congress’ action, not the agencies’ inability to properly identify tools giving them discretion.

Third, where agencies believe they possess broad authority, the extent to which they shape policy depends on how they actually deploy the tools at their disposal.  For example, prosecutorial discretion is often the most critical tool in the context of immigration cases.  Rather than deport a particular individual, an agency may grant a temporary reprieve, choose not to bring a particular proceeding or choose not to bring certain charges.  Other statutes have granted similarly broad powers to the Executive to make individual admissions decisions on humanitarian reasons or economic reasons.  For example, under the Deferred Action for Childhood Arrivals Act, the Executive Branch may promise not to deport certain children for specified periods of time.  Additionally, Section 235 of the INA permits the Executive Branch to make asylum determinations and insulates those decisions from judicial review.

In sum, the Executive Branch is empowered to “reform” the immigration system by shaping enforcement priorities and determining how to expend its resources.  As noted, however, executive authority is cabined by legislative mandates.  Thus, if a broader overhaul is to be accomplished, such action must ultimately come from Congress.

2014 Administrative Law Conference - Registration Open

Registration is open for the Section's 2014 Administrative Law Conference at the Omni Shoreham Hotel in Washington, D.C., October 16 - 17, 2014.  Agenda topics include Interpreting the APA - Text and Common Law, Where Regulation and Innovation Converge, and the Developments in Administrative Law, Parts 1 & 2.  Visit our website to register.  Hope to see you there!

USPS Seeks Input on Proposal to Simplify Return Services

by Shannon Allen

The United States Postal Service (“USPS”), issued a Rule document, inviting public comment on a proposed interim rule to simplify return services.  The USPS proposes to reduce “customer confusion” and guarantee dependable administration by adjusting the “total annual volume thresholds” that USPS “Return Services products” have to meet in order to “qualify for Commercial Plus® pricing.”  Specifically, the proposal establishes a “minimum volume of 50,000” pieces of mail for Return Service “across the board” which will simplify the product and make it less confusing for “customers to do business with the Postal Service.”

At this time, “Commercial Plus® pricing” for products under the “USPS Return Services umbrella” require “different annual volume thresholds.”  These products are: Priority Mail® Return Service, First-Class ^TM Package Return® Service, and Ground Return Service.  Because of the confusion surrounding different products with different volume threshold requirements, the USPS has determined that it is immediately necessary to simplify its returns shipping options.

Current requirements are as follows: 

• Commercial Plus pricing is available for cumulative Priority Mail Return Service and First-Class Package Return Service volume exceeding a combined total of 25,000 return pieces in the previous calendar year.  
• Commercial Plus cubic volume must exceed a combined total of 85,000 pieces returned in approved packaging in the previous calendar year, or cumulative returns and outbound volume must exceed a combined total of 90,000 pieces in the previous calendar year to qualify. 
• Commercial Plus pricing customer commitments may differ depending on the individual signed agreements with USPS.

The USPS has learned that these varied and overlapping requirements are unclear to customers and make it challenging to do business with the Postal Service.  Not only does this proposed interim rule help make it easier for customers to do business with the Postal Service by providing better clarity of criteria, but also it better aligns with “recently adopted changes to the Priority Mail cubic threshold, and to the outbound Priority Mail CPP threshold, of 50,000 pieces.”

This proposed interim rule seeks to provide consistency for customers without signed agreements by creating a “minimum total annual threshold volume requirement of 50,000” for all USPS Return Service products “in order to qualify for Commercial Plus pricing.”  This new approach would not impact customers with the “25,000 piece threshold until their agreements expire.”  At which time, the “50,000 piece threshold” would become applicable “unless an extension is requested and approved by the Vice President, Sales.”

This proposed interim rule is effective September 15, 2014.  The USPS invites interested parties to submit comments on or before November 10, 2014 by one of the following methods: 

• Mail or deliver written comments: To the manager, Product Classification, U.S. Postal Service, 475 L'Enfant Plaza SW., Room 4446, Washington, DC 20260-5015; You may inspect and photocopy all written comments at the USPS® Headquarters Library, 475 L'Enfant Plaza SW., 11th Floor N, Washington, DC, by appointment only between the hours of 9 a.m. and 4 p.m., Monday through Friday, by calling 202-268-2906 in advance.
• Email comments: Email must contain the name and address of the commenter and may be sent to: ProductClassification@usps.gov, with a subject line of “Threshold Volume for USPS Return Services.” 
• Fax:  Faxed comments are not accepted.

Recapping the Homeland Security Institute - Part 1

by Nina Hart

On August 21–22, 2014, the American Bar Association, Section of Administrative Law and Regulatory Practice hosted the Ninth Annual Homeland Security Institute in Washington, D.C.  The Institute included panels on a wide variety of issues including immigration, border security, the Foreign Corrupt Practices Act, the SAFETY Act, government contracting, and the DHS priorities for the upcoming years.  No post can possibly do justice to the myriad topics discussed.  Instead, this two-part piece will attempt to 1) set out several major themes of the Institute and 2) focus on issues in immigration law.

Part One

An area of emphasis for numerous speakers at the Institute was the role of technology in national security.  This post will provide an overview of some of the benefits and issues flagged by the panelists that come with the advent of increasingly sophisticated technology.  These reflections come from the following presentations: Law Enforcement Agenda 2014; The Foreign Corrupt Practices Act: Doing Business Internationally; Support Anti-Terrorism by Fostering Effective Technology (SAFETY) Act; and DHS General Counsel’s Office: New Technology and Homeland Security.  A copy of the full agenda is here.  

Importance of Information Sharing

Partnership and coordination are essential to effective law enforcement and improved national security.  Not only can such sharing increase efficiency of operations, but it can also lead to more successful operations.  For instance, the U.S. Customs & Border Patrol (CBP) relies heavily on the procurement of advanced information from airlines and other domestic and international agencies to identify travelers who pose national security risks.  If this information on travelers can be obtained and evaluated early, the travelers who require further clearance can be notified before boarding airplanes or arriving in the United States to only then be turned away.  With over 360 million travelers each year, or roughly one million per day, identifying the risks before travel occurs greatly reduces security risks and improves efficiency for all involved parties and agencies.

Additionally, in the context of criminal prosecutions, international coordination can greatly improve the chances of successful investigations.  For example, in one instance, a photo found in Boston was shared with state and international agencies, and ultimately led to the discovery of a child abuser in the Netherlands.  Information from the international investigation also led to the identification of a criminal partner in Massachusetts.

The Rise of Big Data and Improved Agency/Entity Performance

An improved ability to collect information and generate statistics is an increasingly important tool for both agencies and entities subject to regulation.  First, data collection can help agencies identify areas where their procedures could be improved and identify shortfalls in the office.  For instance, CBP offices are gathering data to assess the workload of their agents and determine how many staffers are required.  According to John Wagner, the Acting Assistant Commissioner in the Office of Field Operations, to function most effectively, the CBP requires nearly 4,700 additional officers.

Further, collection of data may help agencies identify whether substantives policies should be reconsidered.  For example, during one panel it was suggested that there might be a link between the United States’ policy of deporting alien felons and subsequent problems of human smuggling and trafficking.  In order to look more deeply into this and other law enforcement issues, the United States is working with nations including Honduras to collect and share information.  While it is too early to say what the data will show, collecting it is the first step toward making the requisite assessment.

Shifts in how agencies share information can also change larger trends in law enforcement and the way in which entities and individuals should consider and respond to liability risks.  For example, since the early 2000s, use of the Foreign Corrupt Practices Act (FCPA) has dramatically increased.  In part, this is due to agencies making this an enforcement priority.  However, as agencies have increased their ability to gather information and emphasized coordination, FCPA charges are often no longer brought alone but in the context of larger investigations (e.g. antitrust).  Additionally, because the agencies have more recently named senior executives in addition to the companies, the liability risks for the entities and individuals have greatly increased.  Thus, it becomes all the more important for companies to work with counsel early to develop monitoring plans and to consider making early disclosures as a show of good faith in order to mitigate the chances of or extent of liability.

Increased Cybersecurity Risks

Undoubtedly, improved technology helps law enforcement officials carry out their duties effectively and efficiently.  Enhanced technology, however, is not given solely to law enforcement but to the public at large, which increases the chance that individuals wishing to carry out cybercrimes will be successful.  As one panelist pointed out, an anti-malware program is often effective only once and has an average life span of one week because it is so easy and inexpensive to create new malware.  There is no easy resolution for this security threat, but panelists highlighted two main points.  First, all entities should have and continue to update their detection systems to both prevent security breaches and to respond quickly to breaches that do occur.  One resource available to entities is the best practices for security management guides published by the DHS.  Second, larger entities should be aware of the Support Anti-Terrorism by Fostering Effective Technologies Act (SAFETY Act).  This Act provides liability protection for entities that fall victim to physical or cyberterrorist attacks.

 

 

Brown Bag Lunch - Latest Developments at the Office of Special Counsel

The Section Government Personnel Committee is pleased to host a brown bag lunch entitled "Latest Developments at the Office of Special Counsel," October 6, 2014, from 12:00 - 1:30 p.m.  Confirmed Panelists include Louis Lopez, Associate Special Counsel, U.S. Office of Special Counsel; Shirine Moazed, Chief, Investigation and Prosecution Division, U.S. Office of Special Counsel; and Andrew J. Perlmutter, Attorney, Passman & Kaplan, P.C. (Moderator).  The event will be in the John Marshall Room of the ABA, Washington, DC office (1050 Connecticut Avenue).  Register online here.  Hope to see you there!

Section Member Receives Bar Association Award for Blog Contributions

by Lynn White

Elisabeth Ulmer, 2014 graduate of Villanova University School of Law, recently received the Irvin Stander Award for Excellence in Administrative Law from the Philadelphia Bar Association for her contributions to Notice and Comment while in law school.  Below she discusses the practical benefits of writing for Notice and Comment and how it will impact her future.

1.  How has writing for the blog influenced your understanding of administrative law?

Researching regulations for the blog reemphasized just how many different aspects of our everyday lives are regulated by administrative law and agencies.  This point also underscored how important it is for the public to participate in the rulemaking process and to share their comments, which many people currently do.

Furthermore, reading the rationales for rules provided me with concrete examples of how the administrative rulemaking process works.  For instance, some new rules are implemented to bring existing rules into accordance with older laws – such as the FDA’s move to update serving sizes in compliance with the Nutrition Labeling and Education Act of 1990.  Along those lines, I became more aware that the advances of technology frequently necessitate updated versions of rules – such as the FCC’s new rule permitting in-flight calls because that technology is now available.  Exploring the background of rules offered me greater insight into the ways in which policy and law intersect.

2.  Have you gained skills from writing for the blog? If so, what kind?

While writing for the blog, one skill that I am honing is the ability to take a 50-page regulation and condense it into about 500 words.  I must make strategic decisions about how to summarize a rule in a concise and understandable manner, and I enjoy figuring out how to write my blog in a way that will motivate people to check out the rule further and perhaps comment on it.

3.  How do you plan to use those skills in your career?

Writing will no doubt be a large part of my future, and today’s world is placing increasing priority on clear and concise writing.  I am confident that the skills I am developing while writing for the Notice and Comment blog will serve me well throughout my career.

 

If you would like to write for Notice and Comment, please e-mail Lynn White for details on how to become a contributor.