Category Archives: Law

The Assault on Citizenship–and Citizens

Posted on August 31, 2018 by Michael Froomkin

The Trump administration has taken many official actions that are transparently illegal. For example, there have been a laundry-load of illegal attempts to stop the implementation of various valid regulations that the new EPA, Dept. of Interior, and other agencies want to amend or withdraw. Our law doesn’t work that way, and federal judges have done a decent job of laughing those transparently illegal actions out of court and keeping the old regulations in place until a valid new one is promulgated.

Worse, there have been terrible and illegal actions by the Trump administration preventing asylum-seekers from presenting their claims, and especially evil actions in which the administration has gone out of its way to separate refugee children from their parents–a policy whose harms were intensified by ineptitude, or more likely intentional viciousness, in which the Trump administration then lost the children, or never collected or lost the information about which child belonged with which parent, or deported the parents and then said it was unable or unwilling to reunite the families. Children in detention have at times received no care, little care, or been caged much like animals. At least one toddler died following, and as far as we can tell as a result of, this captivity. Here too, we have more than one judge with a spine doing what they can to force the Trump administration to clean up the mess it made. Cooperation has been imperfect at best, and there is evidence that suggests outright obstruction at times.

Do not be fooled into the complacent view that only foreign people are at risk. The Trump administration is gunning for naturalized citizens. Where once denaturalization was an exceptional remedy for significant immigration fraud (such as failing to admit WW2 Nazi ties), now it’s an enforcement goal to be applied more broadly.

But that’s not all: the Trump administration is also trying to denaturalize natural-born citizens. We learn now that the Trump administration is coming for the citizenship of a substantial number of Mexican-Americans. The purported reason is doubts about the validity of their birthright citizenship due to the existence of some cases (perhaps a very small number, it isn’t clear yet) of actual fraud in which children born south of the Rio Grande were said to have been born north of it. The degree of particularized suspicion sounds, from what we know so far, quite thin. The near-impossibility of finding proof of birth location by midwife 30+ years after the fact is obvious. And, not that it should matter, many of the victims of this policy are veterans, cops, or holders of other jobs of trust and responsibility.

These cases are only part of a more general pattern of aggressive enforcement against Black or Brown people. In one case, ICE held a (Black) citizen in detention for 1,273 days. ‘Mistakes’ are legion.

Some of these policies are not new in principle but have been greatly generalized in application from rare and exceptional to routine and careless or grossly and gleefully reckless, thus including cases where proof is thin or lacking. In time they too may founder in the courts. Meanwhile they will deal pain, spread fear, and could stop a large number of people from voting while their cases are being litigated, for fear of committing the federal crime of non-citizen voting. Win-win for Trump.

Trump notoriously envies Russian strong-man policies. How long before the Trump administration attempts to adopt Russian policies on removing citizenship of dual nationals, or of dissidents? Unthinkable? I would have said revoking some citizens’ passports and locking up others on the grounds they are fake citizens should cross every line and serve as ample warnings. The behavior we have already seen by the US Government was considered unthinkable when I was in law school 30 years ago. When I palled around with the cypherpunks in the 90’s and they worried about oppressive domestic regimes, it was easy to dismiss them as paranoid; I myself wavered at times on the extent to which they were sensibly cautious or plain nuts (and, admittedly, it may have varied among them).

Clichéd perhaps from overuse, but more apt then ever, are the words of Martin Niemöller:

First they came for the communists, and I did not speak out—
Because I was not a communist.

Then they came for the trade unionists, and I did not speak out—
Because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

My wife, a green-card-holder, is going abroad today for a week in which she’ll attend an academic conference. Will the Trump administration let her back into the US next week? Nothing to worry about, I think, because she’s white, and British even if she is an academic. Not the targeted group at present. That we should have to make this calculation and measure our privilege is an outrage for us, a far more serious wrong for those lacking it, and a tragedy for this country.

Posted in Immigration, Law: Right to Travel, Trump | 2 Comments

New Paper ‘When AIs Outperform Doctors’

Posted on February 1, 2018 by Michael Froomkin

My latest (draft!) paper, When AIs Outperform Doctors: The dangers of a tort-induced over-reliance on machine learning and what (not) to do about it is, I hope, special. I had the good fortune to co-author it with Canadian polymath Ian Kerr, and with Joëlle Pineau, one of the world’s leading machine learning experts.

Here’s the abstract:

Someday, perhaps soon, diagnostics generated by machine learning (ML) will have demonstrably better success rates than those generated by human doctors. What will the dominance of ML diagnostics mean for medical malpractice law, for the future of medical service provision, for the demand for certain kinds of doctors, and—in the longer run—for the quality of medical diagnostics itself?

This article argues that once ML diagnosticians, such as those based on neural networks, are shown to be superior, existing medical malpractice law will require superior ML-generated medical diagnostics as the standard of care in clinical settings. Further, unless implemented carefully, a physician’s duty to use ML systems in medical diagnostics could, paradoxically, undermine the very safety standard that malpractice law set out to achieve. In time, effective machine learning could create overwhelming legal and ethical pressure to delegate the diagnostic process to the machine. Ultimately, a similar dynamic might extend to treatment also. If we reach the point where the bulk of clinical outcomes collected in databases are ML-generated diagnoses, this may result in future decision scenarios that are not easily audited or understood by human doctors. Given the well-documented fact that treatment strategies are often not as effective when deployed in real clinical practice compared to preliminary evaluation, the lack of transparency introduced by the ML algorithms could lead to a decrease in quality of care. The article describes salient technical aspects of this scenario particularly as it relates to diagnosis and canvasses various possible technical and legal solutions that would allow us to avoid these unintended consequences of medical malpractice law. Ultimately, we suggest there is a strong case for altering existing medical liability rules in order to avoid a machine-only diagnostic regime. We argue that the appropriate revision to the standard of care requires the maintenance of meaningful participation by physicians in the loop.

I hope that it will be of interest to to lawyers, doctors, computer scientists, and a range of medical service providers and policy-makers. Comments welcome!

Posted in AI, Sufficiently Advanced Technology, Writings | 1 Comment

9th Cir Declines to Strike Down EO TRO

Posted on February 9, 2017 by Michael Froomkin

A sensible, cautious, and careful opinion. It will probably drive Trump nuts.

Posted in Immigration, Trump | 3 Comments

Your AG Scorecard

Posted on January 30, 2017 by Michael Froomkin

Trump fired Acting Attorney General Sally Yates this evening–as the President has the right to do–and issued a statement:

The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. This order was approved as to form and legality by the Department of Justice Office of Legal Counsel.

Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration.

It is time to get serious about protecting our country. Calling for tougher vetting for individuals travelling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country.

Tonight, President Trump relieved Ms. Yates of her duties and subsequently named Dana Boente, U.S. Attorney for the Eastern District of Virginia, to serve as Acting Attorney General until Senator Jeff Sessions is finally confirmed by the Senate, where he is being wrongly held up by Democrat senators for strictly political reasons.

“I am honored to serve President Trump in this role until Senator Sessions is confirmed. I will defend and enforce the laws of our country to ensure that our people and our nation are protected,” said Dana Boente, Acting Attorney General.

In appointing Dana Boente, Trump exercised authority under the Federal Vacancies Act Reform Act of 1998, 5 U.S.C. 3345. In so doing, he (quite legally) bypassed the default line of succession otherwise provided for in Executive Order 13762 (Jan. 13, 2017) signed by President Obama, which had the next three people eligible to be acting AG as (a) United States Attorney for the District of Columbia; (b) United States Attorney for the Northern District of Illinois; and (c) United States Attorney for the Central District of California.

Yates had angered Trump by instructing Justice Department lawyers not to defend his executive order banning travel for people from seven Muslim-majority countries. Various parts of the order have already been enjoined by district courts around the country. Presumably the Trump people shopped for someone willing to overturn Sally Yates’s order, and found one: New acting attorney general says he will enforce order.

Dana Boene was sworn in this evening in order to ensure that there would be someone with legal authority to sign foreign surveillance warrants.

[edited shortly after publication for clarity]

Update1: Spencer Ackerman says it is unclear if the new acting attorney general can sign national security surveillance requests.

Update2: Josh Blackman makes two interesting points. First, one might theoretically question whether firing is a qualifying reason under the Vacancies Act that the incumbent is “otherwise unable to perform the functions and duties of the office” and, more significantly, (2) this action might have precedential value if and when Trump fires and replaces Richard Cordray.

Posted in Administrative Law, Immigration, Trump | Comments Off on Your AG Scorecard

Incompetence

Posted on January 30, 2017 by Michael Froomkin

Today’s Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs is the sort of dumb thing we law profs write up for final exams.

Here are key bits:

[Sec 2.] (a) Unless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.

(b) For fiscal year 2017, which is in progress, the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (Director).

(c) In furtherance of the requirement of subsection (a) of this section, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. Any agency eliminating existing costs associated with prior regulations under this subsection shall do so in accordance with the Administrative Procedure Act and other applicable law.

…

[Sec. 3] (c) Unless otherwise required by law, no regulation shall be issued by an agency if it was not included on the most recent version or update of the published Unified Regulatory Agenda as required under Executive Order 12866, as amended, or any successor order, unless the issuance of such regulation was approved in advance in writing by the Director.

Sec. 4. Definition. For purposes of this order the term “regulation” or “rule” means an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency, but does not include:

(a) regulations issued with respect to a military, national security, or foreign affairs function of the United States;

(b) regulations related to agency organization, management, or personnel; or

(c) any other category of regulations exempted by the Director.

Spot the issues. (Hints: “Unless prohibited by law” “Unless otherwise required by law”, “Regulation’)

Posted in Administrative Law, Trump | Comments Off on Incompetence

Malevolence

Posted on January 30, 2017 by Michael Froomkin

Benjamin Wittes–no leftie he–on the Trump immigration ban:

I don’t use the word “malevolence” here lightly. As readers of my work know, I believe in strong counterterrorism powers. I defend non-criminal detention. I’ve got no problem with drone strikes. I’m positively enthusiastic about American surveillance policies. I was much less offended than others were by the CIA’s interrogations in the years after September 11. I have defended military commissions.

Some of these policies were effective; some were not. Some worked out better than others. And I don’t mean to relitigate any of those questions here. My sole point is that all of these policies were conceptualized and designed and implemented by people who were earnestly trying to protect the country from very real threats. And the policies were, to a one, proximately related to important goals in the effort. While some of these policies proved tragically misguided and caused great harm to innocent people, none of them was designed or intended to be cruel to vulnerable, concededly innocent people. Even the CIA’s interrogation program, after all, was deployed against people the agency believed (mostly correctly) to be senior terrorists of the most dangerous sort and to garner information from them that would prevent attacks.

I actually cannot say that about Trump’s new executive order—and neither can anyone else.

I don’t agree with many of the priors above, but the significance here is that Trump has lost the any chance of getting support from the establishment unless he is directly paying them.

See also this blistering analysis by Elliot Cohen, formerly a counselor to Secretary of State Condoleezza Rice, A Clarifying Moment in American History:

There is in this week’s events the foretaste of things to come. We have yet to see what happens when Trump tries to use the Internal Revenue Service or the Federal Bureau of Investigation to destroy his opponents. He thinks he has succeeded in bullying companies, and he has no compunction about bullying individuals, including those with infinitely less power than himself. His advisers are already calling for journalists critical of the administration to be fired: Expect more efforts at personal retribution. He has demonstrated that he intends to govern by executive orders that will replace the laws passed by the people’s representatives.

In the end, however, he will fail. He will fail because however shrewd his tactics are, his strategy is terrible—The New York Times, the CIA, Mexican Americans, and all the others he has attacked are not going away. With every act he makes new enemies for himself and strengthens their commitment; he has his followers, but he gains no new friends. He will fail because he cannot corrupt the courts, and because even the most timid senator sooner or later will say “enough.” He will fail most of all because at the end of the day most Americans, including most of those who voted for him, are decent people who have no desire to live in an American version of Tayyip Erdogan’s Turkey, or Viktor Orban’s Hungary, or Vladimir Putin’s Russia.

There was nothing unanticipated in this first disturbing week of the Trump administration. It will not get better. Americans should therefore steel themselves, and hold their representatives to account. Those in a position to take a stand should do so, and those who are not should lay the groundwork for a better day. There is nothing great about the America that Trump thinks he is going to make; but in the end, it is the greatness of America that will stop him.

Posted in Immigration, Trump | Comments Off on Malevolence