Here’s the latest from CLR:
On Friday, February 13, Charlotte School of Law’s Law Review hosted their annual spring symposium. This year, the event focused on new privacy concerns of the 21st Century. Aptly titled, “For Your Eyes Only: Where Privacy Ends and the Law Begins,” the event served to edify attorneys and students alike about the evolution of Fourth Amendment jurisprudence as it relates to modern technological advances.
The event was hosted at the UNC-Charlotte Uptown Campus, and featured two panels, as well as a key-note speaker. The morning panel focused on Constitutional Theory and the right to privacy in the 21st century, and featured professors from Charlotte School of Law as well as Elon Law School. The panelists discussed different theories of Constitutional interpretation, and why reliance on certain theories produces different results. Importantly, the panelists discussed the impossibility of predicting how the framers of the Constitution would have dealt with modern-day privacy issues.
While the morning panel took a more theoretical approach to 21st century privacy concerns, the afternoon panel debated the issue in practical terms. The hot topic was Riley v. State, which was handed down in 2014, and announced that officers may NOT search an arrestee’s cell phone merely by virtue of their arrest. Before Riley was decided, the circuits were split on whether the search of a cell phone fell into the scope of a search incident to lawful arrest. North Carolina was one of those states that previously operated on the idea that an officer could search an arrestee’s cell phone simply by virtue of arrest. The advent of the new rule means that individuals convicted of crimes pursuant to cell phone searches may have constitutional grounds to challenge their convictions; as well as that, from here on out, police officers will have to obtain search warrants in order to peruse the content of an individual’s cell phone.
Between the two panels, key note speaker Karel Reynolds took a different approach to privacy concerns. Rather than focusing on Constitutional theories, or even practical applications, Reynolds spoke on the privacy concerns as related to the Holocaust. Reynolds—who serves as director of the Holocaust Museum in Spindale, N.C.—stressed the notion that the less privacy the individual asserts, the more likely it is that the government will exercise tyranny and take away all of the rights of the individual. Reynolds made it clear that her approach to privacy issues is to exercise your rights!
Since word got out at the beginning of November that the President was going to speak on the issue of immigration, pundits from both sides began speculating as to what he would say. After all – what could he say? The proposed immigration legislation had been stalled in the House for over a year by that time; and yet the crisis had just come to head with an unprecedented number of children crossing into the U.S. on their own.  The problem was begging for attention, but the legislators wouldn’t give it any. So, in an exercise of his executive power, the President decided to take the problem into his own hands and make swift decisions about how to prioritize enforcement of our current laws in a way that is realistic, progressive, fair, and legal.
“Our immigration system is broken…”
No matter which side of the issue you fall on, the fact that the current set of laws on the books is being neither followed nor enforced demonstrates that the system just plain isn’t working. Whether it’s because those breaking the rules aren’t being punished; or whether it’s because the conditions of the immigrants’ home countries are getting so bad that it’s worth the risk of punishment, the result is the same. Non-citizens are here in America, and we can either ignore it, or deal with it.
“A bipartisan bill [passed] in the Senate, but…the House refused…to vote [on it.]”
Immigration reform was a key objective of Obama’s platform for election. And pursuant to his promise to make it a priority, he advocated for the DREAM Act, which would have granted a pathway to citizenship for certain young immigrants who are seeking education and self-improvement. After intense debate in the Senate, members of both parties came up with a draft they could all live with. They passed it, and sent it over the House. However, key leaders in the House of Representatives have since stalled the bill, refusing to allow it to go to a vote. So the President was pushed into a corner: How does he make right on his promise to reform when the legislators won’t work with him?
The Executive Order
With intense pressure from both sides of the aisle to do something about the immigration crisis, and with the refusal of Congress to act in such a way that allowed for progress, the President chose to announce new enforcement priorities rather than hold his breath until the House of Representatives stopped bickering with each other.
Through the executive order, the President is not able to write laws. Rather, he looks at the framework of the current laws, and announces to the enforcement personnel on the ground how the laws should be executed in practice. And members of the executive branch do this all the time. Think about that time you sailed right by a state trooper going 50 m.p.h. in a 45-zone, and the officer didn’t bother to you stop you. Or that time your cousin got caught underage drinking, and attended an Alcohol Assessment class in order to get the prosecutor to dismiss the charges. These are all examples of the discretion allotted to the executive branch.
The Reason We Allow for Discretion
It all comes down to the bottom line: money. We simply don’t have the money, the resources, to enforce every law on the books to the “T.” Therefore, law enforcement—i.e. the executive branch of the government—must decide how to best enforce the laws we have with the resources we have.
The President summed this up very succinctly in his Nov. 20 speech when he said, “Let’s be honest—tracking down, rounding up, and deporting millions of people isn’t realistic.” In other words, we just plain don’t have the resources and personnel to do such a thing. So then if our laws require something that we are literally not able to do, shouldn’t we amend them? In theory, yes. But in practice, this doesn’t always happen. There are still laws on the books today that are neither enforced nor are on the agenda to be amended. They don’t necessarily need to be revoked or amended, because they are simply no longer enforced—i.e. don’t tie your giraffe to a phone pole, list other laws here, etc. Government officials don’t see a reason to take action on these stale laws, because they’re not doing any harm. But there has to be direction given to law enforcement personnel (police officers and prosecutors alike) to let them know it is no longer a government priority to enforce X law. So here, what the President did was give consistent direction to the enforcers of our laws how to best do their jobs.
So this is what he said:
- Enforcement personnel on the border will be allotted more resources.
- High-skilled immigrants who demonstrate a clear benefit to our economy will have an easier time getting here than those with fewer skills to offer.
- Non-criminal immigrants with American children who have been in the U.S. for more than five years and are paying taxes will receive temporary stay from deportation.
So what does it really mean?
President Obama explained the gist of the plan in one sentence: “If you’re a criminal, you’ll be deported. If you plan to enter the U.S. illegally, your chances of getting caught and sent back just went up.”
So what’s the message? To law enforcement personnel within the country, it lets them know that they can spend their time and energy on locating criminals, and getting them out of the country. To border enforcement personnel, it lets them know that they’re going to get more money to keep up the hard work. After all, since Obama has taken office, border crossings have been cut by more than half. So with more resources headed their way, illegal crossings will be further stemmed. And with direction given to the internal enforcement personnel, criminals will be deported and the country will be safer.
It is important to recognize that nothing that President Obama announced on November 20 is written in stone. The relief from deportation that he gave to non-criminal immigrants is contingent on their staying out of trouble; expires in three years; does not lead to permanent residency or citizenship; and is revocable at the will of the executive who is elected into office next year. It is truly nothing more than an announcement of the priorities that law enforcement officers are to follow, as recommended by the top law enforcer in the nation.
In a way, calling the President’s announcement “reform” is a misnomer. In no way does it reform our system, but perhaps it will be instrumental in reforming our way of thought. Once criminals are separated from non-criminals, newbies are separated from old-timers, and the skilled workers are separated from the unskilled, it may be easier to quantify the benefits and detriments of our current wave of immigration. Absent legislation, however, the piece-meal approach as effected by executives will be the best bet we have to modifying the system to meet our current needs.
 U.S. Constitution, Art. II, Section I.
By: Edith Hinson
“The face of today’s youth is changing.”
Sure, that’s an epithet that every generation seems to say about their younger cohorts. But today, perhaps, it is truer than ever. According to Customs and Border Patrol—the agency responsible for apprehending individuals attempting to cross the border—at least 66,000 unaccompanied minors entered the United States from October 1, 2013 to October 1, 2014. That’s nearly double from the same time period the year prior. Even though 66,000 may be a drop in the bucket of the estimated 73.6 million American children in 2013, the fact that the rate of arrival is on an exponential rise means that not only is the face of today’s youth going to change, but so is their race, religion, culture, and heritage.
Who are “Unaccompanied Minors”?
Immigrants age 17 and under who arrive into the U.S. without guardianship and legal status are called “Unaccompanied Minors.” While the growth in the number of unaccompanied minors is alarming, the population itself presents a relatively small portion of all undocumented immigrants present in the United States—estimated today to be between 11 and 12 million.
So then what’s the Big Fuss about Unaccompanied Minors?
In a phrase: competing commitments. An influx of population, no matter their age or their source, can strap an area of resources—land, food, water, law enforcement, medical care, education, etc. With nearly 70,000 immigrant children flocking to small towns along the border and beyond, it is easy to see how resources might quickly and unexpectedly get tapped.
Herein lies the beauty of sovereignty: as a sovereign nation, America has a right to exclude non-citizens from our territory without more justification than the mere fact that the individual is a non-citizen. It isn’t necessary that the individual be a criminal, or a drug trafficker, or unsavory in any way—the mere fact that a person is not a U.S. citizen gives the U.S. government the unequivocal right to exclude her from the U.S., which makes sense when you look to the public policy behind the concept of sovereignty. Among other rationales, the power of sovereignty endows the sovereign body (in this case, the U.S.) with the right to allocate and protect those limited resources which fall within its own borders. After all, we need those! For ourselves, our families, our neighbors. In other words, we protect our own … Right?
Us vs. Them, or Us and Them
Well… yes, and no. While the principle of sovereignty is crucial to the way major governments have operated since time immemorial, today, membership in the global community and recognition of a world economy is the new reality. Enter the U.N. As a member of the United Nations, the U.S. is bound to certain international obligations and privileges, which run parallel to our sovereign obligations and privileges. One of these obligations involves the U.N. Convention Relating to the Status of Refugees (“the Refugee Convention”). In pertinent part, the Refugee Convention means that we as a nation are compelled to provide refuge to those individuals who find themselves within our border, and demonstrate a well-founded fear of official persecution in their home-country based on their membership in a protected class (i.e. being in a religious or political minority, being a criminal informant, a rape victim etc.). This is, in simple terms, an “asylum” case—being in the U.S., able to prove you are from somewhere else, and are legitimately afraid to return there.
U.N. Obligations in Practice
So what does that all really mean? It means that contrary to our sovereign nature as a nation, we are obligated to hold on to some of those folks that we are otherwise entitled to kick out, to see if they qualify to stay here pursuant to the Refugee Convention. So technically, Border Agents on the ground are not supposed to send an immigrant back who might have a claim for asylum. Such an agent violates the Refugee Convention if he turns away an asylum-seeker without giving her an opportunity to prove her asylum case.
So, are Border Patrol agents supposed to give a full-blown trial to each person entering the United States who says they’re afraid to go back home? No, but a right to a screening interview with an Immigration Official to test the legitimacy of the claim is what’s required. So what does this have to do with Unaccompanied Minors?
Deteriorating Conditions in Migrants’ Home Countries
The majority of Unaccompanied Minors are coming from Honduras, El Salvador, Guatemala and Mexico. In those countries, economic and social conditions have been deteriorating since at least the 1980’s. Between the Guatemalan genocide, the El Salvadorian civil war, Honduran violence, and Mexican corruption, official persecution of vulnerable groups in Central America is rampant. Add those factors to the inferior or non-existent health care and education systems, in addition to a near-total lack of birth control and family planning in some areas, and what you have is a large population of young individuals who are not getting their most basic needs met. So, for them, there’s nowhere to go but up. Up the continent, that is.
What’s the Point?
Hordes of immigrants showing up at the U.S. border who all allege asylum is a problem that will inundate the system. We can’t be expected to set up full-fledged trials on the southern border for every would-be migrant who says they can’t go home. But unaccompanied minors are a particularly sympathetic population: young, innocent, scared, alone, helpless. And what does it look like when agents in military regalia turn away such a sympathetic lot? Well, it looks bad. Which is why the problem of unaccompanied minors, relative to the whole, is not huge, but is getting widespread attention. It’s a cause that most people have a heart for, one way or the other.
What’s Being Done?
The current answer is trying to temporarily place the unaccompanied minors with guardians. And for those kids who have an aunt or cousin or grandmother here, that’s not too huge of a problem. But for those that don’t, they are caught in the crosshairs of feeling unwelcome no matter where they go. Back home, no one can help them; and here, no one wants to help them. In fact, citizens of cities across the U.S. have staged protests against the bussing of unaccompanied minors into their cities seeking temporary guardianship while their asylum claim is adjudicated. Additionally, new youth detention facilities are being set up in order to house these minors during their litigation processes; but, these centers are criticized as being overcrowded and prison-like—in fact, many are run by private prison corporations and some are former prisons.
However, the sympathetic nature of the population is not totally lost. The President has recently committed millions of dollars to providing some of these children with lawyers, which hopefully will expedite the litigation process and provide a better assurance of justice; and an alternative avenue to relief is available to some unaccompanied minors via “Special Immigrant Juvenile Status.” But until the problems in the home countries are addressed, we are likely to have a recurring but adorable problem of chubby-cheeked babes arriving on our border who just want a safe place to go.
By: Joshua Valentine
Ever since our Founding Fathers drafted the Declaration of Independence, our nation has been engulfed in a great struggle over religious freedom—a struggle not merely for religious freedom, but a struggle of defining exactly what religious freedom is. From pulpits to platforms, from churches to courtrooms, the debate over our First Amendment rights has escalated, reaching a climax with Supreme Court cases such as Everson v. Board of Education, Engel v. Vitale, Lee v. Weisman, County of Allegheny v. ACLU, Employee Division v. Smith, McCreary County v. ACLU, and Van Orden v. Perry. While most people are familiar with the impact that main religious freedom court cases have had on society, many are not familiar with other incidents that occur almost daily, which challenge the strength and meaning of the religious freedom ensured by our Constitution. Through this article, I hope to draw your attention to a few of these incidents.
To recap First Amendment principles, the Constitution contains two clauses relating to religious freedom. The first is the Establishment Clause, which prevents the government from promoting or establishing a religion. The second is the Free Exercise Clause, which prohibits government from inhibiting the free exercise of religion. These competing interests create a constant tension in the “wall of separation” between the government and religion. For where the Establishment Clause is furthered, the Free Exercise Clause may be violated, and vice versa. Thus, the Supreme Court has often referred to the “play in the joints” that exists and must be balanced between the Establishment Clause and the Free Exercise Clause in order to uphold our invaluable religious freedom.
Consider, for example, a sophomore at Mora High School who was kept from praying prior to eating her lunch at school this past September. Right before she began eating, Ms. Ashe bowed her head to pray, when a superintendent came up and said she could not do that. She did not ask for anyone to pray with her or for anyone to listen to her pray. She did not even pray out loud—she was not forcing religion on anyone, and neither was the school for that matter. Ms. Ashe was merely exercising a personal conviction of her faith. Yet, presumably, the school feared that allowing a student to pray could be viewed as an endorsement of religion. Nowhere in our Constitution are public displays of faith by private citizens prohibited—faith is a personal matter that should not be obstructed by politics. The factual circumstances surrounding the incident are currently being investigated.
Also, this past summer, the football players of Arkansas State University were told they would not be allowed to keep a cross decal on the back of their helmets. The players and coaches had made a voluntary decision to put the cross decal on their helmets in memory of a player and a manager who were killed earlier in the year. After being threatened with a lawsuit for allegedly endorsing religion in violation of the Establishment Clause, the school ordered the students to either remove the decals or alter them into plus signs. Similar to Mora High, this school also feared that by allowing the players to express their sorrow in this manner, it would be endorsing a religion. Yet this time, after the players threatened the school with a lawsuit for violating their free expression rights, the school compromised by allowing the players to keep the decals so long as the players paid for them, thereby avoiding the use of government money.
In analyzing the Establishment Clause jurisprudence, it is important to refer to the historical role religion has played in our government since before its inception. When the Second Constitutional Convention was gridlocked and the delegates could not come to a consensus, the great statesman Benjamin Franklin, led them in prayer. Thomas Jefferson, the author of the Declaration of Independence, penned the words: “We are endowed by our Creator with certain unalienable rights. . . .” Our first military general and President, George Washington, took his oath of office on a Bible and deliberately made a prayer one of his first official acts as President. He stated: “[I]t would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by themselves for these essential purposes.” Subsequent Presidents have made this an integral part of their inaugural addresses ever since.
Our nation’s Congress has opened in prayer since the First Congress. In the legislative prayer case of Marsh v. Chambers, the majority opinion aptly stated “To invoke Divine guidance on a public body entrusted with making the laws is not . . . an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people whose institutions presuppose a Supreme Being.” The Supreme Court’s sessions have begun with the words “God save the United States and this Honorable Court” since the time of Justice Marshall. Our currency is engraved with the words “One nation under God.” And the list goes on. These very facts demonstrate that the Establishment Clause was not written to provide freedom from religion—it was written to protect freedom of religion. While not all scholars agree with this viewpoint, as Justice Scalia stated in his Lee v. Weisman dissent, the Constitution “cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.”
I believe that it was more than coincidence that our forefathers included religious freedom in the very first amendment of the Constitution. Yet, as we see in the examples above, the limitations imposed on government at the founding of our nation have become warped into limitations on religious expression. As Justice Scalia further explained in Lee, the Establishment Clause was enacted to prevent an individual from being “coerced” into practicing a particular religion. Freedom devoid of moral principle will ultimately devolve into license, and if we lose our foundational First Amendment rights, it is difficult to foresee the rest of our rights standing much longer. Exactly how much further will the Free Exercise Clause be overhauled in the interest of preserving an Establishment Clause jurisprudence not grounded in the understanding of those who created it? Well, that ought to be a matter of grave concern to us all. Let us be those of whom—twenty, fifty, or a hundred years from now—it is said: “They were the ones who stood up in their generation and preserved America’s fundamental, inalienable, and Constitutional freedom of religion.”
 Inaugural Addresses of the Presidents of the United States, S. Doc. 101-10, p. 2 (1989).
By: Alec Jalovec
Before the rise of social media, the Michael Brown killing may have gone relatively unnoticed by the rest of the United States. However, the tremendous growth of social media (primarily Facebook and Twitter) in recent years has changed the way the nation receives its news. Twitter typically only shows people one side of a story, which gives rise to more bias and extremism on both sides of a conflict. In other words, people will not get full picture when reading the news on Twitter unless they actively seek it out. On August 9, 2014, Michael Brown, an unarmed black teenager, was shot and killed by Ferguson, Missouri police officer Darren Wilson. The killing sparked weeks of protests and outrage from Ferguson’s residents. The Ferguson Police Department and town leaders were bombarded with accusations of racial bias and disparity. A majority of Ferguson’s residents are black; however, the police department, which has fifty-three members, has only three black officers.
As the conflict in Ferguson progressed and the protests grew in size, the police brought in military-grade equipment. Armored trucks rolled down the main roads, and police in riot gear were almost always present. Fighting between the protesters and police ensued, but many major news outlets were not reporting much, if anything, about what was occurring during the first few nights of protests and fighting. As a result, much of the nation flocked to Twitter for all the news, photos, and videos of Ferguson that it wanted. Freelance reporters, Ferguson residents, and protesters provided updates on the fighting minute by minute. Additionally, protesters and reporters quickly uploaded pictures and videos of the fighting online. Thousands of tweets poured in each night about Ferguson and the progressing violence.
But, even with the massive amount of Twitter coverage on Ferguson, many people only saw one side of the conflict: the side that they agreed with. Those that agreed with the police saw Tweets of Molotov cocktails seized, stores looted, and gunfire from protesters. However, people who wanted to see information about police brutality viewed tweets about young children choking on tear gas, police pointing rifles at protesters, and police arresting innocent people for merely walking down the street.
The inherent “nature” of Twitter is that it allows you to follow people and organizations that you agree with or like; but, as a result, Twitter users view conflicts and news through a warped lens. People see what they want to see. If a tweet is seen as supporting the other side, it is quickly dismissed as false. Peoples’ views on an issue or conflict become more extreme the more they read because of the way the news on Twitter is viewed. Inaccuracies go unchecked and objectivity goes out the window. Of course there are always going to be false stories and misstated facts no matter how news is read, but the real problem arises when a substantial number of people actually begin to believe those falsities.
There is no question that Free Speech is a tremendous thing, and it is something that should always be fought for. Unfortunately, little effort is typically taken to address blatant falsities that pop up on social media websites. That begs the question: how do we address false stories and biased articles? Some would say the Court system is the proper way to do so. However, unless a harmed individual actually brings a defamation or libel suit, little will be done to correct errors on social media. Moreover, the law is still in developing stages in regard to dealing with issues of social media and new technology. Therefore, the idealistic solution to ending the bias and extremism is for every person to learn the facts and seek the truth.
As a nation, we have to take what we see on social media with a grain of salt. We are at a point in our history where radicalism and extremism seem to be the norm rather than the exception. Not everything is “us v. them,” nor is every conflict about picking sides. We have to be able to see the good and the bad in everything. Unfortunately, outlets like Twitter typically restrict what we see because of the way Twitter operates. Most people only look at people and organizations that they like and agree with. But the problem isn’t with Twitter, it’s with us as a society. There are always two sides to a story–o take the time to read and understand both sides. Follow accounts that you typically wouldn’t agree with, and actively search for the other side of a story. It is always possible that both sides of an issue are right.