Category: Civil Rights

Sessions’ DOJ reverses transgender workplace protections

Attorney General Jeff Sessions has reversed an Obama-era policy explicitly defining transgender workers as protected under employment discrimination laws, CBS News’ Paula Reid reports.

The Wednesday policy reversal of what qualifies as employment discrimination under Title VII of the Civil Rights Act comes down to an idealogical disagreement over whether “sex” is decided by a person’s birth certificate, or whether sexual discrimination includes broader gender identity. Title VII prohibits any employment discrimination based on race, color, religion, sex and national origin. Former Attorney General Eric Holder in 2014 interpreted “sex” discrimination to apply to discrimination based on gender identity, while Sessions’ DOJ interprets that it only applies to discrimination between men and women.

Sessions’ DOJ argues Holder went beyond the definition of the 1964 law by including transgender discrimination.

“The Department of Justice cannot expand the law beyond what Congress has provided,” DOJ spokesperson Devin O’Malley said. Unfortunately, the last administration abandoned that fundamental principle, which necessitated today’s action. This Department remains committed to protecting the civil and constitutional rights of all individuals, and will continue to enforce the numerous laws that Congress has enacted that prohibit discrimination on the basis of sexual orientation.”

The move comes after President Trump has announced he will prohibit transgender individuals from serving in the military, a decision that shocked his own party and caused backlash from Democrats and civil liberties groups.

Sessions’ latest policy shift could very well could end up in court, Reid reports. Already, it’s under fire from civil liberties groups like the American Civil Liberties Union (ACLU).

“Today marks another low point for a Department of Justice, which has been cruelly consistent in its hostility towards the LGBT community and in particular its inability to treat transgender people with basic dignity and respect,” James Esseks, director of the ACLU’s LGBT & HIV Project, said in a statement.

“This Department of Justice under Jeff Sessions has time and time again made it clear that its explicit agenda is to attack and undermine the civil rights of our most vulnerable communities, rather than standing up for them as they should be doing,” Esseks continued. “Discrimination against transgender people is sex discrimination, just as DOJ recognized years ago. We are confident that the courts will continue to agree and will reject the politically driven decision by Attorney General Sessions.”

[CBS News]

U.S. votes against U.N. resolution condemning death penalty for LGBT people

Last week, the United Nations Human Rights Council approved a resolution condemning the use of the death penalty in a discriminatory manner such as consensual same-sex relations. Along with 13 other nations, the United States voted against it. Instead, the U.S. sided with allies such as Saudi Arabia, Iraq, Qatar, Japan and the United Arab Emirates. Bangladesh, China and India also voted against the measure, which still passed along a 27-13 margin.

“The resolution asked countries that have not yet abolished the death penalty to ensure that it is not ‘applied arbitrarily or in a discriminatory manner’ and that it is not applied against persons with mental or intellectual disabilities and persons below 18 years of age at the time of the commission of the crime, as well as pregnant women,” according to the International Lesbian, Gay, Bisexual, Trans, and Intersex Association (ILGA).

The resolution does not outlaw the use of the death penalty. Instead, it merely condemns its use in cases of “apostasy, blasphemy and adultery” an other similar instances.

“It is unconscionable to think that there are hundreds of millions of people living in States where somebody may be executed simply because of whom they love” Renato Sabbadini, Executive Director of ILGA said. “This is a monumental moment where the international community has publicly highlighted that these horrific laws simply must end.”

LGBT rights activists criticized President Donald Trump’s administration and U.S. ambassador to the U.N., Nikki Haley, for not supporting the resolution. Yet, don’t go thinking this stance is anything new or localized to the 45th president’s administration. The U.S. has never voted to support any U.N. measure that condemns the death penalty in any way. The Obama administration did abstain from a similar vote in 2014, according to BuzzFeed News, though that one did not contain provisions for LGBT individuals.

[Salon]

Update

The Trump State Department said they voted against the resolution “because of broader concerns with the resolution’s approach in condemning the death penalty in all circumstances, and it called for the abolition of the death penalty altogether. ”

Watch here: https://twitter.com/StateDept/status/915291301540593664

However if you look at the text of the resolution on page 3 bullet point 2, it very clearly says it calls upon all states that have not already abolished the death penalty to consider doing so.

Read the resolution text here: http://undocs.org/A/HRC/36/L.6

That isn’t even close to the State Department’s description. She is lying through her teeth.

Trump Lawyers Urge Supreme Court to Rule For Colorado Cake Maker Who Turned Away Gay Couple

Trump administration lawyers joined sides with a Colorado baker Thursday and urged the Supreme Court to rule that he has the right to refuse to provide a wedding cake to celebrate the marriage of two men.

Acting Solicitor Gen. Jeffrey B. Wall filed a friend-of-the-court brief arguing that the cake maker’s rights to free speech and the free exercise of religion should prevail over a Colorado civil rights law that forbids discrimination based on sexual orientation.

“A custom wedding cake is a form of expression,” he said. “It is an artistic creation that is both subjectively intended and objectively perceived as a celebratory symbol of a marriage.” And as such, the baker has a free-speech right under the 1st Amendment to refuse to “express” his support for a same-sex marriage, Wall argued.

The case of the Colorado cake maker has emerged as the latest battle in the culture wars. It is a clash between the religious rights of a conservative Christian against gay rights and equal treatment for same-sex couples.

The brief filed Thursday is likely to bolster the cake maker’s case, and is in line President Trump’s repeated promises to protect “religious liberty.”

But Wall asked the high court to carve out “only a narrow” exception to the state civil rights laws forbidding businesses to discriminate based on sexual orientation. It should extend only to people like painters, photographers and others whose “product or service [is] inherently communicative.” Most businesses would not qualify, he said. “A commercial banquet hall may not refuse to rent its facilities, nor may a car service refuse to provide limousines” because its owners do not approve of a same-sex marriage, he said.

He also said an exemption for “expressive conduct” would not extend to cases of racial discrimination. The Supreme Court has said racial bias always violates the Constitution’s guarantee of equal protection of the laws, he said, but has not yet adopted the same strict standard for judging bias based on sexual orientation.

Louise Melling, deputy legal director of the American Civil Liberties Union, said the administration was trying to create a “constitutional right to discriminate.”

“This Justice Department has already made its hostility to the rights of LGBT people and so many others crystal clear. But this brief was shocking, even for this administration,” she said. “We are confident that the Supreme Court will rule on the side of equal rights just as the lower courts have.”

The case began five years ago when two men who were planning to marry went to Masterpiece Cakeshop in a Denver suburb to ask about a wedding cake for their reception. They were surprised and angered when Jack Phillips, the shop owner, said he would not make a cake for a same-sex marriage. Doing so would violate his Christian faith, he said.

The two men filed a complaint with the state Civil Rights Commission in Colorado, which like 20 other states has a law that requires businesses serving the public to provide “full and equal” service to customers without regard to their sexual orientation. An administrative judge, a seven-member state commission and a Colorado appeals court all agreed Phillips had violated the law.

Phillips has continued to operate his bakery, but he no longer designs custom wedding cakes.

Backed by the Arizona-based Alliance Defending Freedom, he appealed to the Supreme Court late last year for the right under the 1st Amendment to be exempted from the state law.

Shortly after Trump’s first appointee, Justice Neil M. Gorsuch, was confirmed and took his seat, the justices announced they would hear the baker’s appeal. The case of Masterpiece Cakeshop vs. Colorado is due to be argued in late November or early December.

[Los Angeles Times]

Trump Signs Order For Military to Discriminate Against Transgender Recruits

President Donald Trump on Friday signed a directive reinstating a ban on transgender individuals from serving in the military, although it defers to the Pentagon on whether to remove those now in uniform and leaves open the door for it to seek changes.

Trump’s directive, issued to the Defense and Homeland Security Departments, reinstates a prohibition of transgender service members lifted last year, putting a formal stamp on a politically divisive change in military personnel policy that Trump first announced last month.

It also bars funding to pay for gender-reassignment surgeries except when “necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.”

The guidance gives Defense Secretary Jim Mattis until Feb. 21, 2018, to submit a plan for implementing the new policy. It also leaves decision of whether to remove current troops to Mattis.

The White House memo also leaves the door open for further changes in the transgender policy, stating that Mattis may advise him on changes.

“The Secretary of Defense, after consulting with the Secretary of Homeland Security, may advise me at any time, in writing, that a change to this policy is warranted,” the memo states.

Then-Defense Secretary Ash Carter announced in June 2016 the ban on transgender troops would be lifted. Mattis, however, delayed implementation of the policy for new recruits by six months to allow for further study.

Trump first revealed he would reverse the policy in a series of tweets on July 26, announcing transgender individuals would not be allowed “to serve in any capacity” in the military.

Trump’s announcement last month on Twitter that he planned to reverse the Obama policy was hailed by some conservatives who argue that the military has become a social experiment.

But it also drew widespread condemnation from Democrats and some Republicans, who argue the policy shift is discriminatory and would disrupt military readiness.

Pentagon spokeswoman Dana White Friday confirmed in a statement that the department had received the guidance but provided no further details.

“The Department of Defense has received formal guidance from the White House in reference to transgender personnel serving in the military,” White said. “More information will be forth coming.”

Experts predict that implementation of the ban will prove a lethal thicket and predict a series of court challenges that will likely delay the policy.

[Politico]

Trump Pardons His Friend Sheriff Joe Arpaio

President Donald Trump has pardoned controversial former sheriff Joe Arpaio of his conviction for criminal contempt, the White House said Friday night.

Arpaio, who was a sheriff in Maricopa County, Arizona, was found guilty of criminal contempt last month for disregarding a court order in a racial profiling case. Arpaio’s sentencing had been scheduled for October 5.

“Not only did (Arpaio) abdicate responsibility, he announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise,” wrote US District Judge Susan Bolton in the July 31 order.

Trump indicated he would pardon Arpaio at a rally in Phoenix, Arizona, on Tuesday: “I won’t do it tonight because I don’t want to cause any controversy.”

“I’ll make a prediction,” Trump said, adding, “I think he’s going to be just fine.”

However, civil rights groups have pushed back against the possibility of Arpaio’s pardon.

After Trump’s comments at the Phoenix rally, the ACLU tweeted: “President Trump should not pardon Joe Arpaio. #PhoenixRally #noarpaiopardon,” accompanied with a graphic that reads, “No, President Trump. Arpaio was not ‘just doing his job.’ He was violating the Constitution and discriminating against Latinos.”

Arpaio, who has called himself “America’s toughest sheriff,” was an early Trump supporter, but his stance on illegal immigration was what had earned him national recognition.

[CNN]

Trump: ‘Doing the Military a Great Favor’ with Transgender Troop Ban

President Trump said Thursday he is “doing the military a great favor” by banning transgender people from serving in the armed forces.

“I have great respect for the community,” Trump said from his golf club in Bedminster, N.J. “I think I’ve had great support, or I’ve had great support from that community. I got a lot of votes. It’s been a very complicated issue for the military, it’s been a very confusing issue for the military, and I think I’m doing the military a great favor.”

Trump announced the sudden shift in military policy last month in a series of tweets.

“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military,” Trump tweeted at the time.

“Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you”

The announcement sparked immediate criticism, including from top Republican senators and dozens of retired generals and admirals.

Two LGBTQ rights groups announced Wednesday that they would sue Trump over the ban, claiming claim the president’s July tweets announcing plans to reverse the Department of Defense’s policy on transgender service members violates the equal protection component of the due process clauses of the Fifth Amendment.

[The Hill]

The Justice Department Just Argued Against Gay Rights in a Major Federal Case

The US Justice Department on Wednesday argued in a major federal lawsuit that a 1964 civil rights law doesn’t protect gay workers from discrimination, thereby diverging from a separate, autonomous federal agency that had supported the gay plaintiff’s case.

The Trump administration’s filing is unusual in part because the Justice Department isn’t a party in the case, and the department doesn’t typically weigh in on private employment lawsuits.

But in an amicus brief filed at the US Court of Appeals for the Second Circuit, lawyers under Attorney General Jeff Sessions contend that Title VII of the Civil Rights Act of 1964, which bans sex discrimination, does not cover sexual orientation.

“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” says the Justice Department’s brief. “It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”

The Justice Department also contends that Title VII only applies if men and women are treated unequally.

“The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect,” the brief says.

The case kicked off in 2010 when Donald Zarda, a skydiving instructor, filed suit against his employer in federal court in New York, alleging the company terminated him for his sexual orientation in violation of Title VII.

After a lower court ruled and the case was appealed, the 2nd Circuit invited outside parties to weigh in. Zarda v. Altitude Express is now before before a full panel of judges at the court.

Among Zarda’s boosters is the Equal Employment Opportunity Commission, a largely autonomous federal agency that handles civil rights disputes in the workplace, which supported Zarda last month in its own court filing.

For several years, the EEOC has declared in federal court that Title VII bans anti-gay discrimination, saying it is based on sex stereotyping, and therefore discrimination on the basis of sex.

But the Justice Department argues in its latest brief, “the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.”

The scope of Title VII has been disputed for years.

Under President Obama, the government argued Title VII’s ban on sex discrimination also included gender identity — thereby barring discrimination against transgender workers. But the Obama administration never went as far to say the civil rights law also covered sexual orientation. It had in fact opposed the argument, claiming that its hands were tied by prior court precedent. Yet in 2016, the Obama administration arguably dialed back its opposition by not trying to dismiss a case brought on those grounds.

If Zarda’s argument were to prevail — despite his death in a base-jumping accident in 2014 — it would set new precedent in the circuit by overturning two cases from the 2000s.

Further, it would give momentum to the argument as a general matter, given that in April the 7th Circuit ruled in favor of a lesbian who made the same claim.

Under Sessions, the Justice Department has pushed back against the EEOC’s view and that court decision. “The theories advanced by the EEOC and the Seventh Circuit lack merit,” the brief on Wednesday said. “These theories are inconsistent with Congress’s clear ratification of the overwhelming judicial consensus that Title VII does not prohibit sexual orientation discrimination.”

Several LGBT activists had worried the Justice Department would unleash a more sweeping claim that gender-identity discrimination isn’t covered under the Title VII as well — but the brief doesn’t explicitly speak to that issue.

Earlier on Wednesday, President Trump announced he would end all transgender military service.

“On the day that will go down in history as Anti-LGBT Day comes one more gratuitous and extraordinary attack on LGBT people’s civil rights,” said a statement from James Esseks, director of the American Civil Liberties Union’s LGBT & HIV Project. “The Sessions-led Justice Department and the Trump administration are actively working to expose people to discrimination.”

“Fortunately, courts will decide whether the Civil Rights Act protects LGBT people, not an Attorney General and a White House that are hell-bent on playing politics with people’s lives,” he said.

[BuzzFeed]

Attorney General Jeff Sessions Speaks to ‘Hate Group’ Behind Closed Doors

Attorney General Jeff Sessions gave an off-camera speech behind closed doors on Tuesday. As announced on his public schedule, Sessions addressed a crowd at the Alliance Defending Freedom’s Summit on Religious Liberty in Orange County, California.

As the news of the scheduled speech traveled, nonprofit advocacy groups and Democrats issued statements asking why the head of the U.S. Department of Justice was speaking at a meeting of a “hate group” — a designation bestowed upon Alliance Defending Freedom (ADF) by the Southern Poverty Law Center in 2016.

“You can judge a person by the company they keep and tonight – Attorney General Jeff Sessions is choosing to spend his time speaking in front of one of the country’s leading anti-LGBTQ hate groups,” Democratic Party spokesperson Joel Kasnetz wrote in a statement emailed to NBC News. “Sessions’ appearance at this event, as the top law enforcement official in the country, brings into question whether the attorney general intends to protect all Americans.”

NBC News asked the Justice Department for comment on the public outcry but did not receive a response. An additional request for comment sent to Alliance Defending Freedom did not receive a reply.

ADF is essentially a powerhouse Christian law firm, defending clients like Masterpiece Cakeshop, the bakery taking its refusal to make a same-sex wedding cake all the way to the Supreme Court. But with millions in its war chest, ADF does more than just litigate: The firm wrote model legislation called the Student Physical Privacy Act that built a foundation for dozens of proposals and policies around the country that are frequently referred to as “bathroom bills.” ADF’s model legislation, and the national trend that stems from it, is aimed at keeping transgender people out of restrooms and other private facilities that correspond to their gender identity and presentation.

Founded in 1994, the Alliance Defending Freedom was a coalition effort between conservative Christian leaders aiming to preserve traditional social norms, restrict access to abortion and fight the “homosexual agenda.” Much of the firm’s early work came in the form of court briefs urging states to keep anti-gay sodomy laws on the books and in fighting attempts to legalize same-sex marriage. After Massachusetts legalized gay marriage in 2003, ADF issued an official statement deriding the “radical homosexual” state policy.

“Radical homosexual activists have made their intentions clear – ‘couples’ will now converge on Massachusetts, ‘marry,’ and return to their respective states and file lawsuits to challenge Defense of Marriage Acts (DOMAs) and try to force the states to recognize their ‘marriages.’ We are disappointed but we’re going to continue the fight state by state,” longtime ADF president Alan Sears wrote at the time.

The list of anti-LGBTQ remarks by ADF co-founders is long; James C. Dobson wrote an entire book about the gay “culture war” in 2004’s “Marriage Under Fire.” But after a Supreme Court decision in Obergefell v. Hodges made same-sex marriage legal across America, ADF pivoted away from a now-futile fight and toward a new goal: keeping transgender people out of bathrooms.

In April, ADF attorney Kellie Fiedorek disputed the idea that the firm’s model legislation — and general motivation — is anti-LGBTQ or harmful to the rights of transgender people.

“The bills protecting privacy are simply ensuring that when it comes to intimate facilities, they are simply limiting them to biological sex. We all have a right to privacy,” Fiedorek said. “Even if you believe you are a man, a woman shouldn’t have to undress in front of you.”

In response to ADF being designated a hate group by the Southern Poverty Law Center, Fiedorek said the latter was “increasingly irrelevant” and “extreme,” saying ADF was the world’s “largest religious freedom legal advocacy organization.”

SPLC’s Heidi Beirich, though, told NBC News in April her organization doesn’t recklessly toss around the hate group label and had good reason to classify ADF as such a group.

“We don’t put a group on the hate list because they are against gay marriage,” Beirich said. “Where the rubber hits the road is when ADF attorneys engage in model legislation and litigation that attacks the LGBT community.”

The Attorney General’s own track record on LGBTQ issues has been cause for concern among LGBTQ advocates, too. When Sessions was confirmed in February, Lambda Legal executive director Rachel Tiven called it a “travesty,” while Mara Keisling of the National Center for Transgender Equality said the confirmation marked a “deeply distressing day for civil rights.”

[NBC News]

Rex Tillerson is Intentionally Leaving the State Dept.’s Anti-Semitism Monitoring Office Unstaffed

The U.S. State Department’s office to monitor and combat anti-Semitism will be unstaffed as of July 1.

A source familiar with the office’s workings told JTA that its remaining two staffers, each working half-time or less, would be reassigned as of that date.

The Trump administration, which has yet to name an envoy to head the office, would not comment on the staffing change. At full staffing, the office employs a full-time envoy and the equivalent of three full-time staffers.

The State Department told JTA in a statement that it remained committed to combating anti-Semitism – and cited as evidence the tools, including the department’s annual reports on human rights and religious freedom, that existed before Congress mandated the creation of the envoy office in 2004.

“We want to ensure the Department is addressing anti-Semitism in the most effective and efficient method possible and will continue to endeavor to do so,” the statement said.

“The Department of State condemns attacks on Jewish communities and individuals. We consistently urge governments around the world to address and condemn anti-Semitism and work with vulnerable Jewish communities to assess and provide appropriate levels of security.

“The Department, our Embassies, and our Consulates support extensive bilateral, multilateral, and civil society outreach to Jewish communities,” the statement continued. “Additionally, the State Department continues to devote resources towards programs combating anti-Semitism online and off, as well as building NGO coalitions in Europe. We also closely monitor global anti-Semitism and report on it in our Country Reports on Human Rights Practices and International Religious Freedom Report, which document global anti-Semitism in 199 countries.”

Secretary of State Rex Tillerson told Congress in testimony earlier this month that he believed special envoys were counterproductive because they provided an excuse to the rest of the department to ignore the specific issue addressed by the envoy.

Congressional lawmakers from both parties have pressed the Trump administration, in letters and proposed bills, to name an envoy and to enhance the office’s status. They have noted that unlike other envoys, whose positions were created by Trump’s predecessors, the office of the envoy on anti-Semitism is a statute and requires filling.

“As the author of the amendment that created the Special Envoy to Monitor and Combat Anti-Semitism, I remain hopeful that these critical positions will be filled,” Rep. Chris Smith, R-N.J., who authorized the 2004 law, said in a statement to JTA.

Jewish groups have lobbied President Donald Trump to name an envoy, saying that despite Tillerson’s testimony, the position has been key to encouraging diplomats and officials throughout the department to focus on anti-Semitism. Hannah Rosenthal, a special envoy on anti-Semitism in the Obama administration, instituted department-wide training on identifying anti-Semitism.

“The idea of having a dedicated envoy who can travel around the world to raise awareness on this issue is critical,” the Anti-Defamation League CEO, Jonathan Greenblatt, told JTA in an interview.

“That doesn’t mean there isn’t value for all ambassadors and every embassy in addressing issues of anti-Semitism and bigotry in countries they operate,” he said. “But if the administration is truly committed” to combating anti-Semitism, “maintaining the special envoy for anti-Semitism seems like a no-brainer.”

The ADL, coincidentally, launched an online petition Thursday to the White House to fill the position.

Officials of the Simon Wiesenthal Center, which has enjoyed a good relationship with the Trump administration, said that if the unstaffing was coming ahead of a reorganization of the office, that was understandable. But positions remain unfilled in all of the major federal departments and agencies since Trump took office.

“However, we are almost in July and there is still no one of proper rank at the State Department whom the Wiesenthal Center and others can work with to re-activate US leadership in the struggle against anti-Semitism at a time when global anti-Semitism is rising,” said an email from Rabbi Abraham Cooper, the associate dean of the center, and Mark Weitzman, its director of government affairs.

Jason Isaacson, the American Jewish Committee’s director of government and international affairs, said the position was essential.

“It’s not as though the need for a special envoy has diminished,” he told JTA in an interview. “If anything it has increased.”

[Jewish Telegraph Agency]

Trump Administration Quietly Rolls Back Civil Rights Efforts Across Federal Government

For decades, the Department of Justice has used court-enforced agreements to protect civil rights, successfully desegregating school systems, reforming police departments, ensuring access for the disabled and defending the religious.

Now, under Attorney General Jeff Sessions, the DOJ appears to be turning away from this storied tool, called consent decrees. Top officials in the DOJ civil rights division have issued verbal instructions through the ranks to seek settlements without consent decrees — which would result in no continuing court oversight.

The move is just one part of a move by the Trump administration to limit federal civil rights enforcement. Other departments have scaled back the power of their internal divisions that monitor such abuses. In a previously unreported development, the Education Department last week reversed an Obama-era reform that broadened the agency’s approach to protecting rights of students. The Labor Department and the Environmental Protection Agency have also announced sweeping cuts to their enforcement.

“At best, this administration believes that civil rights enforcement is superfluous and can be easily cut. At worst, it really is part of a systematic agenda to roll back civil rights,” said Vanita Gupta, the former acting head of the DOJ’s civil rights division under President Barack Obama.

Consent decrees have not been abandoned entirely by the DOJ, a person with knowledge of the instructions said. Instead, there is a presumption against their use — attorneys should default to using settlements without court oversight unless there is an unavoidable reason for a consent decree. The instructions came from the civil rights division’s office of acting Assistant Attorney General Tom Wheeler and Deputy Assistant Attorney General John Gore. There is no written policy guidance.

Devin O’Malley, a spokesperson for the DOJ, declined to comment for this story.

Consent decrees can be a powerful tool, and spell out specific steps that must be taken to remedy the harm. These are agreed to by both parties and signed off on by a judge, whom the parties can appear before again if the terms are not being met. Though critics say the DOJ sometimes does not enforce consent decrees well enough, they are more powerful than settlements that aren’t overseen by a judge and have no built-in enforcement mechanism.

Such settlements have “far fewer teeth to ensure adequate enforcement,” Gupta said.

Consent decrees often require agencies or municipalities to take expensive steps toward reform. Local leaders and agency heads then can point to the binding court authority when requesting budget increases to ensure reforms. Without consent decrees, many localities or government departments would simply never make such comprehensive changes, said William Yeomans, who spent 26 years at the DOJ, mostly in the civil rights division.

“They are key to civil rights enforcement,” he said. “That’s why Sessions and his ilk don’t like them.”

Some, however, believe the Obama administration relied on consent decrees too often and sometimes took advantage of vulnerable cities unable to effectively defend themselves against a well-resourced DOJ.

“I think a recalibration would be welcome,” said Richard Epstein, a professor at New York University School of Law and a fellow at the Hoover Institution at Stanford, adding that consent decrees should be used in cases where clear, systemic issues of discrimination exist.

Though it’s too early to see how widespread the effect of the changes will be, the Justice Department appears to be adhering to the directive already.

On May 30, the DOJ announced Bernards Township in New Jersey had agreed to pay $3.25 million to settle an accusation it denied zoning approval for a local Islamic group to build a mosque. Staff attorneys at the U.S. attorney’s office in New Jersey initially sought to resolve the case with a consent decree, according to a spokesperson for Bernards Township. But because of the DOJ’s new stance, the terms were changed after the township protested, according to a person familiar with the matter. A spokesperson for the New Jersey U.S. attorney’s office declined comment.

Sessions has long been a public critic of consent decrees. As a senator, he wrote they “constitute an end run around the democratic process.” He lambasted local agencies that seek them out as a way to inflate their budgets, a “particularly offensive” use of consent decrees that took decision-making power from legislatures.

On March 31, Sessions ordered a sweeping review of all consent decrees with troubled police departments nationwide to ensure they were in line with the Trump administration’s law-and-order goals. Days before, the DOJ had asked a judge to postpone a hearing on a consent decree with the Baltimore Police Department that had been arranged during the last days of the Obama administration. The judge denied that request, and the consent decree has moved forward.

The DOJ has already come under fire from critics for altering its approach to voting rights cases. After nearly six years of litigation over Texas’ voter ID law — which Obama DOJ attorneys said was written to intentionally discriminate against minority voters and had such a discriminatory effect — the Trump DOJ abruptly withdrew its intent claims in late February.

[ProPublica]

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