Sunday, April 30, 2006

HR 4437 Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005

This is what has the immigrant, Latino and Chinese communities so up in arms. I have linked above to a nice, neutral Thomas (Library of Congress database) summary of the bill. (There is also S. 1033 "For a Safe and Secure America" blogged here March 28 under the title " Senate Bill 1033, Secure America and Orderly Immigration Act" and an earlier blog entry on this same bill, March 26, "Immigration Conflagration") But here is a dab from the sponsoring Congressman's website:

March 23, 2006 (202) 225-5101

Sensenbrenner Statement on Rally

(WASHINGTON, D.C.) -- In response to the rally in Milwaukee today, Menomonee Falls Representative Jim Sensenbrenner issued the following statement:

“The illegal alien rally held in Milwaukee today was an impressive show of force. But I do not believe that illegal aliens should receive legal government documents, such as driver’s licenses. Many have tried to confuse the difference between legal and illegal immigration. Illegal aliens should not be granted amnesty and a path to citizenship. This would be a slap in the face to all those who have followed the law and have come to America legally.

“The first step in any immigration bill must be regaining control of our borders. Without strong border security provisions, we would have an ineffective and incomplete law that would be doomed to failure from the start.

“Illegal immigration is an expensive problem for law-abiding citizens. Americans and legal aliens have to pay more for police protection, for classrooms to educate our children, and for hospital and healthcare costs. This burden on the taxpayer is wrong. It undermines the economy, and it puts undue pressure on people to pay even more in taxes to pay for those who are here in America.

“Our immigration policy has been and will continue to be debated in Congress. Last year, the House of Representatives took the first step in passing the Border Security, Anti Terrorism and Illegal Immigration Control Act (HR 4437). The Senate in a few weeks will be debating an immigration package.

“America is a compassionate nation that should continue to be the land of opportunity. But the best way to help illegal aliens is by stopping illegal immigration.”

And this

March 29, 2006 Raj Bharwani
588 Words (202) 225-5101

US Citizenship Not For Sale

Border security and immigration reform are among the toughest and most complex government policy issues I’ve ever had to grapple with. In order to arrive at a policy that reflects that we are both a nation of immigrants and a nation of laws, we require a civil, careful, and thoughtful discussion. As Chairman of the House Judiciary Committee, I have attempted to address this problem in a comprehensive manner because the people of Wisconsin, and the vast majority of Americans, are more than ready for an overhaul of our country’s policy toward illegal aliens.

Last year, I introduced the Border Protection, Anti-Terrorism and Illegal Immigration Control Act (HR 4437), which passed the House of Representatives in December. The Senate is currently deliberating its version of an immigration bill, which by all accounts, appears to be headed in the wrong direction.

The bill that passed the Senate Judiciary Committee on March 27 repeats the mistakes made 20 years ago when we provided amnesty to illegal aliens and let unethical businesses off the hook. The Senate bill includes amnesty for the 11 to 12 million undocumented aliens in the US who have managed to elude the authorities. This is a slap in the face to those who are following the law and taking the right steps to enter this country. The Senate proposal absolves the wrongdoers and penalizes those who are obeying the law. I do not accept the claim made by some that this is not amnesty because among other things, illegal aliens would have to pay two fines of $1,000 each. It is offensive to me to think we have legislators who are considering selling US citizenship for $2,000. US citizenship is not for sale. It is a privilege bestowed upon those who appreciate its value, and who contribute to our nation by living in a manner that reflects the principles and ideology of being an American. When someone’s first step in this country is taken in direct violation of our laws, I cannot support a process that allows them to continue residing in the US, while others wait up to 20 years outside the US before they are able to take their first step into this country legally.

To end this migration of illegal aliens into the US, we must stop the businesses that hire them. Without employment opportunities, people will be less likely to break the law to enter this country. Moreover, companies that hire legal residents are placed at a disadvantage when compared to those that hire illegal aliens because they have to pay a higher wage to their employees. In order to survive, many of these ‘legitimate’ businesses have to depress their employees’ wages just to remain competitive with the companies that hire illegal aliens. This is bad for all the people involved, and it is bad for our economy. To address this, my bill requires businesses to verify the accuracy of employees’ social security numbers, and raises the penalties assessed to corporations that hire undocumented workers from $250 per illegal alien to $5,000 for first-time offenses.

It is time to tone down the rhetoric, and come to an understanding on this issue. We need to look at what Congress has done in the past, and learn from our mistakes because the current system isn’t working. Having 10,000 or 100,000 people marching in the streets of our nation might make for good television, but it doesn’t provide a solution.

This is all well and good but here are some of the provisions of the HR 4437:

(Sec. 104) Directs the Secretary to: (1) enhance connectivity between the Automated Biometric Identification System (IDENT) and the Automated Fingerprint Identification System (IAFIS) fingerprint databases; and (2) collect all fingerprints from each alien required to provide fingerprints during the alien's initial enrollment in the integrated entry and exit data system.

(Sec. 203) Makes illegal U.S. presence a crime.

Increases prison penalties for first-time improper U.S. entry. Expands: (1) penalties for marriage and immigration-related entrepreneurship fraud; and (2) criminal penalties imposed upon aliens who illegally enter the United States or who are present illegally following convictions of certain crimes.

(Sec. 204) Provides mandatory minimum sentences, with a specified affirmative defense exception, for aliens convicted of reentry after removal.

(Sec. 205) Subjects an individual who knowingly aids or conspires to allow, procure, or permit a removed alien to reenter the United States to criminal penalty, the same imprisonment term as applies to the alien so aided, or both.

(Sec. 207) States that: (1) the provision barring entry to aliens who have made false claims to U.S. citizenship also applies to aliens who have made false claims to U.S. nationality; and (2) the Secretary shall have access to any information kept by any federal agency regarding persons seeking immigration benefits or privileges.

(Sec. 208) Revises voluntary departure provisions to: (1) reduce the maximum period of voluntary departure that can be granted before the conclusion of removal proceedings from 120 to 60 days, and reduce such period from 60 to 45 days after the conclusion of removal proceedings; (2) require (currently, authorizes that such bond be provided) an alien receiving voluntary departure prior to conclusion of removal proceedings to post a bond or show that a bond would create a financial hardship or is unnecessary to guarantee departure; (3) require as part of a voluntary departure agreement that the alien waive all rights to any further motion, appeal, application, petition, or petition for review relating to removal or relief or protection from removal; (4) provide that a subsequent appeal would invalidate the voluntary departure grant, as would the alien’s failure to depart; (5) provide that failure to depart in violation of such an agreement would subject the alien to a $3,000 fine, make the alien ineligible for various immigration benefits for ten years after departure, and prohibit the reopening of removal proceedings, except to apply for withholding of removal or restriction on removal to a country where the alien's life or freedom would be threatened or to seek protection against torture; (6) authorize the Secretary to reduce the period of inadmissibility for certain aliens previously removed or unlawfully present; and (7) preclude courts from reinstating, enjoining, delaying, or tolling the period of voluntary departure.

(Sec. 209) Makes aliens ordered removed from the United States who fail to depart ineligible for discretionary relief from removal pursuant to a motion to reopen during the time they remain in the United States and for a period of ten years after their departure, with the exception of motions to reopen to seek withholding of removal to a country where the alien's life or freedom would be threatened or to seek protection against torture.

(Sec. 214) Establishes a rebuttable presumption that an alien should be detained if such person: (1) has no lawful U.S. immigration status; (2) is subject to a final order of removal;

(Sec. 225) Bars, two years after enactment of this Act, states or local subdivisions that prohibit local law enforcement officials from assisting or cooperating with federal immigration law enforcement personnel from receiving SCAAP assistance. Reallocates funds to cooperating states.

(Sec. 606) Makes an alien deportable who is unlawfully present in the United States and who: (1) commits and is convicted of driving while intoxicated, driving under the influence, or similar violation of state law (DWI); or (2) commits an offense by refusing in violation of state law to submit to a Breathalyzer or similar test.

Requires detention of a deportable illegal alien apprehended for driving while intoxicated, driving under the influence or similar violation of state law, or for refusing to submit to a Breathalyzer or similar test if the apprehending state or local officer is covered by an immigration agreement (INA sec. 287).

Provides procedures for verifying the status of an alien in cases of apprehension for such an intoxication offense, taking the alien into custody, and notifying the Secretary.

Requires state motor vehicle administrators to share with the Secretary and other states information about aliens' DWI convictions or refusals to submit to a Breathalyzer test.

Title VIII: Immigration Litigation Abuse Reduction - (Sec. 801) Amends INA to authorize the Board of Immigration Appeals to make an order of removal final (without remand to an immigration judge).

(Sec. 802) Prohibits judicial review of visa revocations after the visa holder has entered the United States.

(Sec. 803) Authorizes reinstatement of a prior removal order against an alien illegally reentering the United States. States that such reinstatement shall not require proceedings before an immigration judge.

Limits: (1) judicial review of reinstatement to the U.S. Court of Appeals for the District of Columbia Circuit; and (2) the scope of such review.

(Sec. 804) Requires an alien applying for withholding of removal to establish that his or her life or freedom would be threatened in the country of return, and that race, religion, nationality, or political or social group would be at least one central factor in such threat. Applies such provision retroactively to the enactment date of the REAL ID Act of 2005.

(Sec. 805) Subjects removal appeals to an initial certification of reviewability process by a single court of appeals judge, which, upon issuance of such certificate (that the alien has made a substantial showing that the review is likely to be granted) shall be referred to an appeals panel. Prohibits judicial review of a decision not to issue such certificate.

(Sec. 806) Requires all nonimmigrant applicants to waive any right to: (1) review or appeal a determination of inadmissibility at port of entry; or (2) contest, other than through asylum, any action for removal.

(Sec. 807) Prohibits judicial review of removal orders for certain criminal aliens as well as review of discretionary decisions by the Attorney General and the Secretary.

(Sec. 808) Prohibits courts from awarding fees or other expenses to an alien based upon the alien’s status as a prevailing party in any removal proceedings unless the Attorney General’s determination that the alien was removable was not substantially justified.

And here it is, THE FENCE:

Title X: Fencing and Other Border Security Improvements - (Sec. 1002) Amends the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to direct the Secretary to construct at least two layers of reinforced fencing, additional physical barriers, roads, lighting, cameras and sensors in five specified zones along the U.S.-Mexico border.

(Sec. 1003) Directs the Secretary to conduct a study and report to Congress respecting the necessity and feasibility of constructing a barrier system along the northern U.S. land and maritime border.

(Sec. 1004) Expresses the sense of Congress that the Secretary shall take all necessary steps to secure the Southwest international border for the purpose of saving lives, stopping illegal drug trafficking, and halting the flow of illegal entrants into the United States.

Congressman Sensenbrenner, your grandparents, like mine must have come under suspicion during WWI and WWII, with that German name (my grandmother on one side was Von Pein and I was told that she and her relatives felt a great deal of pressure and hostility in southern Indiana during the wars). There was a time that Chermans were mocked and not welcomed as new immigrants. There were illegals among our antecedants, too, though it's harder to slip by when you arrive on a boat. But once in, it is easier to mix in (at least by the second generation when you lose the accent) when your complexion and religion match the Anglo-Saxon norms. Let us not be proud -- we are all (or nearly all) immigrants to this land.

I do not ask for open borders; that would be foolish. But grant some justice and dignity to the immigrants, both legal and undocumented. And deal as your grandparents would have wanted to be dealt with.

Do you know what is on the base of the Statue of Liberty? She calls herself Mother of Exiles, and says,

"Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!"

George W. Bush Administration Rebalancing Balance of Power

Bush challenges hundreds of laws
President cites powers of his office

This headline greeted me when I opened my Boston Globe this morning.

Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

Legal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty ''to take care that the laws be faithfully executed." Bush, however, has repeatedly declared that he does not need to ''execute" a law he believes is unconstitutional. (you can read another take on this under Jim's blog entry on May 1, titled "Happy Law Day")

Former administration officials contend that just because Bush reserves the right to disobey a law does not mean he is not enforcing it: In many cases, he is simply asserting his belief that a certain requirement encroaches on presidential power.

But with the disclosure of Bush's domestic spying program, in which he ignored a law requiring warrants to tap the phones of Americans, many legal specialists say Bush is hardly reluctant to bypass laws he believes he has the constitutional authority to override.

Far more than any predecessor, Bush has been aggressive about declaring his right to ignore vast swaths of laws -- many of which he says infringe on power he believes the Constitution assigns to him alone as the head of the executive branch or the commander in chief of the military.

Many legal scholars say they believe that Bush's theory about his own powers goes too far and that he is seizing for himself some of the law-making role of Congress and the Constitution-interpreting role of the courts.
For the first five years of Bush's presidency, his legal claims attracted little attention in Congress or the media. Then, twice in recent months, Bush drew scrutiny after challenging new laws: a torture ban and a requirement that he give detailed reports to Congress about how he is using the Patriot Act.

Bush administration spokesmen declined to make White House or Justice Department attorneys available to discuss any of Bush's challenges to the laws he has signed.

Instead, they referred a Globe reporter to their response to questions about Bush's position that he could ignore provisions of the Patriot Act. They said at the time that Bush was following a practice that has ''been used for several administrations" and that ''the president will faithfully execute the law in a manner that is consistent with the Constitution."

But the words ''in a manner that is consistent with the Constitution" are the catch, legal scholars say, because Bush is according himself the ultimate interpretation of the Constitution. And he is quietly exercising that authority to a degree that is unprecedented in US history.

Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work.

Then, after the media and the lawmakers have left the White House, Bush quietly files ''signing statements" -- official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.

In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills -- sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed.

''He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises -- and more often than not, without the Congress or the press or the public knowing what has happened," said Christopher Kelley, a Miami University of Ohio political science professor who studies executive power.

I have linked to the excellent article in full (except that it leaves out the graphs which show that

George H.W. Bush in 4 years: Challenged 232 statutes

Bill Clinton in 8 years: Challenged 140 statutes

George W. Bush in 5 years: Challenged at least 750 statutes

(according to an analysis by Christopher Kelley a political scientist at Miami University of Ohio. I find he has posted excellent research to the web from his web page link and maintains an very interesting political blog, Mediawatch here. He also recommends his friend's webpage on the U.S. Presidency link here. I shall link back to Dr. Kelley -- He is job hunting, so if you know anybody in the market for a political science prof...!)

The first website above includes an excellent paper that Dr. Kelley co-authored and just presented this April, 2006 to the Midwest Political Science Association Meeting at Chicago, Illinois, titled Last Mover Advantage: Presidential Power and the Role of Signing Statements. The authors note that presidential signing statements are the least understood method of rebalancing the power between Congress and President. They note that it has become more used since the polarized presidency of Nixon, where the pressures of Viet Nam and Watergate led to widespread distrust of the "Imperial Presidency." They write that it allows the President to protect the executive prerogatives and advance his policy interests in some pretty amazing ways that have until very recently escaped the notice of the press and public.

The paper notes four major uses of the signing statement. There is the rhetorical device, which is the only use I was ever really aware of. The President takes the opportunity when signing a bill into law to praise supporters of the bill or to denigrate the opposition, aiming remarks for the press and public. To tell the truth, I never thought this type of remark was much more than window dressing, and I guess that is true; it is pats on the back for the home team or punishment for the bad guys. But the surprise now is that it can also be used like the magicians use the business with the silk scarves, to drag your attention away from the real business.

The second major use of the Presidential signing statement is to try to influence the courts' interpretation. For instance, explaining the executive's interpretation of the legislative history of the new law. Third use is to instruct the officials of executive branch agencies in the president's interpretation and preferred application of a new law. Often the President has promised a new agenda in election speeches, and wants that delivered through the agencies. I never thought of the signing statement in this way, but of course it would be important and a perfectly legitimate use of the signing statement.

The fourth use of the Presidential signing statement is to signal and correct what the President considers Constitutional defects in the new law. For instance, the paper offers, the President may instruct the Justice Department not to defend a particular provision if challenged in court. Or, more controversially, that the President finds a provision unconstitutional and refuses to enforce it. This is the area in which our current President and Congress are struggling right now. The paper traces the refusal to enforce to the Reagan presidency, which asserted the right in speeches cited in the paper, Attorney General Edwin Meese at Tulane University in 1987:

"...constitutional interpretation is not the business of the Court only but also properly the business of all branches of government."

The paper analyzes the current Bush administration's widening use of the Presidential signing statement as a symptom of their decreasing ability to work with the Congress. They cite statistics of the number of bills W. has gotten passed but comment that the numbers are misleading as the second term progresses. Democrats are increasingly unified, and Republicans are becoming increasingly disenchanted and willing to defy the President. In order to achieve his objectives, as well as to avoid controversy, W. may increasingly have to rely on the "last move advantage" of the signing statement. The authors hypothesize that as the executive branch becomes less able to influence legislation, the use of signing statements will increase. That may be less attractive as the signing statement is no longer the stealth move it once was, but it still has a stunning "last move" effectiveness.

With the Supreme Court filled with former Republican staffers like Alito and Scalia (read the paper in full!), court challenges to the presidential signing statements might not be the division of powers answer one assumed.

However, the Boston Globe article goes on to look at how the George W. Bush signing statements are changing the constitutional balance of power both regarding the Supreme Court and within the executive branch itself:

David Golove, a New York University law professor who specializes in executive-power issues, said Bush has cast a cloud over ''the whole idea that there is a rule of law," because no one can be certain of which laws Bush thinks are valid and which he thinks he can ignore.

''Where you have a president who is willing to declare vast quantities of the legislation that is passed during his term unconstitutional, it implies that he also thinks a very significant amount of the other laws that were already on the books before he became president are also unconstitutional," Golove said.

Defying Supreme Court
Bush has also challenged statutes in which Congress gave certain executive branch officials the power to act independently of the president. The Supreme Court has repeatedly endorsed the power of Congress to make such arrangements. For example, the court has upheld laws creating special prosecutors free of Justice Department oversight and insulating the board of the Federal Trade Commission from political interference.

Nonetheless, Bush has said in his signing statements that the Constitution lets him control any executive official, no matter what a statute passed by Congress might say.

In November 2002, for example, Congress, seeking to generate independent statistics about student performance, passed a law setting up an educational research institute to conduct studies and publish reports ''without the approval" of the Secretary of Education. Bush, however, decreed that the institute's director would be ''subject to the supervision and direction of the secretary of education."

Similarly, the Supreme Court has repeatedly upheld affirmative-action programs, as long as they do not include quotas. Most recently, in 2003, the court upheld a race-conscious university admissions program over the strong objections of Bush, who argued that such programs should be struck down as unconstitutional.

Yet despite the court's rulings, Bush has taken exception at least nine times to provisions that seek to ensure that minorities are represented among recipients of government jobs, contracts, and grants. Each time, he singled out the provisions, declaring that he would construe them ''in a manner consistent with" the Constitution's guarantee of ''equal protection" to all -- which some legal scholars say amounts to an argument that the affirmative-action provisions represent reverse discrimination against whites.

Golove said that to the extent Bush is interpreting the Constitution in defiance of the Supreme Court's precedents, he threatens to ''overturn the existing structures of constitutional law."

A president who ignores the court, backed by a Congress that is unwilling to challenge him, Golove said, can make the Constitution simply ''disappear."


Lack of court review
Such political fallout from Congress is likely to be the only check on Bush's claims, legal specialists said.

The courts have little chance of reviewing Bush's assertions, especially in the secret realm of national security matters.

''There can't be judicial review if nobody knows about it," said Neil Kinkopf, a Georgia State law professor who was a Justice Department official in the Clinton administration. ''And if they avoid judicial review, they avoid having their constitutional theories rebuked."

Without court involvement, only Congress can check a president who goes too far. But Bush's fellow Republicans control both chambers, and they have shown limited interest in launching the kind of oversight that could damage their party.

''The president is daring Congress to act against his positions, and they're not taking action because they don't want to appear to be too critical of the president, given that their own fortunes are tied to his because they are all Republicans," said Jack Beermann, a Boston University law professor. ''Oversight gets much reduced in a situation where the president and Congress are controlled by the same party."

Said Golove, the New York University law professor: ''Bush has essentially said that 'We're the executive branch and we're going to carry this law out as we please, and if Congress wants to impeach us, go ahead and try it.' "

Bruce Fein, a deputy attorney general in the Reagan administration, said the American system of government relies upon the leaders of each branch ''to exercise some self-restraint." But Bush has declared himself the sole judge of his own powers, he said, and then ruled for himself every time.

''This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy," Fein said. ''There is no way for an independent judiciary to check his assertions of power, and Congress isn't doing it, either. So this is moving us toward an unlimited executive power."

The photo of President Bush is from

Saturday, April 29, 2006

Immigrant Walkout Monday May 1: Immigrant Walkout - Let Justice Roll Down Like a Mighty Water!

Monday, May 1 is the Day Without Immigrants here in the U.S. A day that many activists are asking supporters not to go to work or school, or open your business, but to attend rallies, wearing white, to support the immigrant community. That community is asking Congress not to pass legislation like HR 4437, very repressive to undocumented aliens and even hostile to legal immigrants in tone. (see the blog entry on HR 4437 just above, this same date, with that bill number as the title, and also S 1033 blogged March 28 as " Senate Bill 1033, Secure America and Orderly Immigration Act" and an earlier entry on HR 4437 blogged on March 26 as "Immigration Conflagration.")

Activist Websites like ANSWER (Act Now to Stop War and End Racism) urge people:

Join immigrants and supporters to make Monday, May 1, 2006 a national “day without an immigrant.” Anti-immigrant politicians and hatemongers call mmigrants “a drain on society” - they try to pass repressive legislation like HR 4437 and encourage groups like the racist “Minutemen.” But immigrants contribute billions to the economy and receive few benefits in return. We will settle for nothing less than full amnesty and dignity for the millions of undocumented workers presently in the United States. Let’s show the government, corporations and racist politicians that a powerful, united peoples’ movement has the power to win Civil Rights, workers’ rights and make history. No business as usual on May 1!

It is difficult not to be swept up in such rhetoric. I have friends who are immigrants, friends who are Latino or Asian and I feel the hatefulness of the Minutemen and the legislation that treats immigrants like a “drain on society.” But I also have friends who are African-American. I listen as they articulate the concerns that are circulating in the barbershops and churches of their communities about what “guestworker” programs will do to the dismal employment prospects of
young men and women in their neighborhoods. I wonder, What would Martin Luther King say about all this?

Read on ... This article from the Boston Globe is an excellent capsule of the



Author(s): Yvonne Abraham, Globe Staff Date: April 28, 2006 Page: A1

Manuel Madego will not be firing up his Friolator on Monday.

The Dominican immigrant, who sells fried meat and cheese pastries from his small cart on Centre Street in Jamaica Plain, will be staying home Monday to protest what he says is this nation's harsh treatment of undocumented immigrants. Many other businesses on Centre Street will be closed. Like Madego, their owners will be participating in national "Day Without Immigrants" to call attention to the contributions made by the millions of undocumented immigrants in the labor force.

Across the country, hundreds of thousands of immigrants and their supporters are planning to stay away from work and school, avoid spending money, wear white, and join rallies and prayer vigils. The event is being planned as Congress grapples with the divisive question of illegal immigration.

"On that day, we show that America is immigrants," said Madego, a legal immigrant who settled in Boston in 1980. "I hope white people, black people, Chinese people, everybody comes together on that day."

Despite that excitement, the plan has touched off an intense debate about whether the protest will backfire at a sensitive time in the immigration debate. Some immigrant activists worry that it may undermine a hard-won image of immigrants as tireless workers who come to America seeking only jobs and better lives.

"This is really not the best course," said Jose Quinonez, who runs the California-based, a website for liberal Latinos. "It undermines our message that we are here to work, here to learn and to achieve the American Dream. And to have this boycott of America kind of contradicts all these ideas that we really want to be part of this society."

In Massachusetts, some immigrant advocacy groups have discouraged workers from taking the day off, unless their boss grants them permission. They say some employers have threatened to fire workers who do not come to work Monday. And they worry that vast absences would erode the image of immigrants as essential to the labor force. There are many other ways to show support for immigrants Monday, they say, and they are urging people to choose the way that is most convenient, and least costly, for them.

"We want as many people as possible to participate in some way, but we are not calling on folks to risk getting fired," said Thomas Keown, spokesman for the Irish Immigration Center in Boston. "The purpose of the day is not a confrontational day of demands. It is a peaceful way to highlight the contributions of immigrants and the important role they play in the economy and society."

Labor unions, including the AFL-CIO and the SEIU, are discouraging their members from
staying home from work, saying such work stoppages are justified only over contractual issues. The Boston Public Schools issued a memo yesterday informing schools that students who take the day off Monday will be considered to have an unexcused absence.

The debate is taking place in an atmosphere of heightened activism among immigrants. On April 10, massive demonstrations for immigrant rights were held in major cities across the nation. Some of those demonstrations were later criticized, because some protesters carried foreign flags.

Organizers say Monday's events will be far more decentralized. In Massachusetts, for example, there will be a press conference with immigrant advocates and business leaders at the State House in Boston, a student walk-out and teach-in at Harvard, a 24-hour prayer vigil in Framingham, and a march to City Hall in Lynn, among many other local events.

Despite the other events, it is the question of whether to stay away from work or school that is setting off the most intense debate.

Jennifer Coto, a senior at East Boston High School, said students there have been talking about what to do for weeks. She said the students have been told they would be punished if they missed school, but said she would be staying home, anyway.

"I got to support my people," said Coto, as she waited for Madego to fry her cheese pastelitos on Centre Street. "If I go to school, I feel like I'm betraying them. It's mostly Spanish students, so school is going to be empty."

It is not yet clear how many students and workers will be absent Monday. But some Latino business owners on Centre Street say they have already decided to close in support of immigrants. Advocates say some businesses in other cities with large immigrant populations will close, too.

"Our business is for Latin people, and we need to support our people, you know?" said Nondia Aquino, a Dominican immigrant and agent at Atlantic Travel on Centre Street. "Everybody is going to close."

"I'm going to lose a lot of [money]," said Sixto Lopez, a Cuban immigrant who owns Vasallo's Fashions. "But I support my immigrant community coming here to work. We must give them something."

The Allston-based Brazilian Immigrant Center is taking out advertisements in Brazilian publications and on radio this weekend urging business owners who rely on immigrants to give them permission to take the day off.

"If a business has a lot of immigrants and keeps it open, he doesn't care about us," said Fausto da Rocha, the center's executive director. "He just cares about cheap labor."

Massachusetts Jobs With Justice, a Boston-based workers' rights coalition, is lining up community and religious leaders to intervene with employers who fire workers for participating in the Day Without Immigrants, said director Russ Davis.

"We're trying to get the message out preemptively to employers that that would be a mistake from a moral point of view and also an economic point of view," Davis said. "If the unfortunate happens and people are actually fired, [the next day] we will have delegations to ask them nicely at first to reinstate the workers. And if not, we will bring their actions to the attention of their customers and the community."

The issue is not just difficult to navigate for the immigrant workers. Employers who show support for them by shutting down risk a negative reaction from those who want stricter immigration policies, who view the expected absences as proof that immigrants refuse to play by the rules.

"What they're trying to do is intimidate the American people," said Cyndi Ross, a Revere make-up artist who has joined protests against illegal immigration. "I will not shop on Sunday at a store that's closed Monday. I will not give them my business if they support people who don't belong here. If they don't show up for work on Monday, they're only showing people that they are not dependable, and this country does not want people like that."

The article does a nice job of personalizing the debate. In the Boston area, we have many immigrant groups, including a surprising number of undocumented immigrants from Ireland. The immigration community is an interesting cross-section of the larger community. In neighborhoods with a large immigrant component, I have no doubt that many local businesses are feeling a lot of pressure to close Monday in support of the Walkout, both to allow employees to attend, but also to show support. There is undoubtedly truth to that last paragraph and a half, that employers who shut down in support risk back-lash from critics of the protest, like Ms. Ross. At the same time, the folks who walk out are also risking problems at their employment or school. Boston Schools have issued a memo of warning, as it says in the article. Yet the peer pressure and desire to show support for "my people" will undoubtedly empty many of the schools on Monday.

Here is a link
to an article from the Boston Globe, April 28, 2006, STUDY: MANY JOB DEATHS ARE IMMIGRANTS, by Raja Mishra, Page: B4. This article is examining a dismayingly high number of job-related deaths in the local immigrant population. This leads to the point that immigrants are taking more dangerous jobs or accepting jobs without the safety precautions that natives feel they can demand. One can only imagine the pressure that undocumented aliens are under to accept unsafe work conditions, low-wage and even slave labor (see earlier OOTJ blog entry on immigrant issues link

Author(s): Raja Mishra, Globe Staff Date: April 28, 2006 Page: B4 Section:

With the nation locked in debate over immigrant rights, a new study found that immigrant workers accounted for a disproportionate number of workplace fatalities in Massachusetts last year.

Advocacy groups said an alarming new trend underscored immigrant workers' plight: Two died last year installing the bulky granite countertops favored in many kitchens, the fifth granite-related death in New England in the last two years. The study, to be released today by local labor union groups, follows a scaffolding collapse in downtown Boston on April 3 thatkilled three people, including an immigrant from Brazil, and brought renewed attention to worker safety.

Today, union workers plan to lay a wreath at the Boylston Street site of the accident. A federal investigation into the collapse is underway, as is an inquiry by state lawmakers that could result in sweeping changes to state workplace regulation.

The study, by the Massachusetts AFL-CIO and the Massachusetts Coalition for Occupational Safety and Heath, analyzed the 78 worker deaths in the state last year, finding:

Twenty-two deaths involved immigrants, accounting for 28 percent of fatalities, while
immigrants made up 17 percent of workers.

The average age of death was 46, with more than a third of the fatalities among workers 40 or under.

The average fine for safety violations involving injury or death levied by the federal Occupational Safety and Health Administration, which regulates work sites, was $14,065. The agency's local inspections staff would take 124 years to inspect every state work site, a figure the report said dramatized the agency's staffing shortage.

The 78 deaths last year constituted the third highest tally since the local AFL-CIO began studying workplace fatalities in 1995. The authors did not begin focusing on deaths of recent immigrants until 2004, when 16 died.

One of the workers killed in the scaffolding collapse was 27-year-old Romildo Silva, a hard-working Brazilian arrival who dreamed of one day opening a hair salon. Last year, 38-year-old Valdecir Rodrigues, also from Brazil, was crushed to death installing a granite counter in Marlborough.

"Immigrants, quite frankly, are falling into the highest-risk jobs. And they find themselves without the training and safety precautions necessary," said Ali Noorani, executive director for the Massachusetts Immigrant and Refugee Advocacy Coalition.

State Senator Jarrett T. Barrios, the Cambridge Democrat leading the legislative committee exploring construction safety overhaul, said his Latino roots made him all the more determined to change current regulations, which he said are filled with loopholes that leave most construction sites unmonitored. He also said that immigration status many workers here are undocumented makes risky work even riskier because workers are afraid to raise safety issues.

Robert L. Petrucelli, president and CEO of the Associated General Contractors of Massachusetts, which represents the majority of the commercial construction companies in the state, said bilingual worker training is the key to lowering immigrant deaths. His association this week launched its first series of worker safety classes in Spanish.

Others said beefing up enforcement by OSHA is crucial. Nancy Lessin, health and safety coordinator for the Massachusetts AFL-CIO and author of the study, said an average fine of $14,065 for safety violations would not compel firms to tighten safety measures at work sites.

"That's pocket change for these companies," she said.

A spokesman for OSHA declined to comment on the report.

Beyond the immigrant angle, the report offered details on all 78 workplace deaths last year, a series of crushings, falls, and collisions often overlooked in media reports until the scaffold tragedy earlier this month.

"When in the middle of the city, you have such a dramatic accident, it's gotten people's attention," said Robert J. Haynes, president of the Massachusetts AFL-CIO.

One casualty of a workplace accident, Paul R. King of Malden, would have celebrated his 51st birthday last week. He was electrocuted last July on the job as a maintenance contractor at Logan International Airport.

His daughter, Melissa King, 23, of Malden, plans to speak today at a State House rally, and has become active in promoting worker safety.

"We're hoping that no family has to go through what we went though," she said. "Something has to change."

The juxtaposition of the articles is interesting in that the justification for the guestworker provisions has been that immigrants will take positions that native citizens do not want. Perhaps the more accurate statement would be that undocumented workers and workers here under guestworker provisions (who are very much like the old
endentured servants that so many of us are descended from!)have no help if they object to dangerous workplaces or low wages. So employers perhaps prefer them to native citizens. Read on...

I have cited to the Center for Immigration Studies before. They have a great number of studies on the issues of immigration. They do have a strong position, which is that illegal immigration should be halted, the undocumented aliens present should not be given rights, and that borders should be strengthened. I have mixed feelings about some of their politics, but they have a wealth of data, but be aware of potential bias slant:

Center for Immigration Studies

Historical Perspective
Increasing immigration, especially illegal immigration throughout the 1990's has produced higher numbers of immigrants than any time in history. The policy of open migration, even at times of low economic productivity produces very unfair competition for the population at the low end of the economic scale, most especially weighing heavily on African Americans.

Expediency and the Birth of the
Agricultural "Guestworkers" Program
December 1999

by Cindy Hahamovitch

American policy makers are currently debating whether the agricultural "guestworker" or H-2A program should be reformed to make it easier for growers to hire farmworkers from abroad. Critics of such a proposal fear that a vastly expanded program would create even more opportunities for abuses of power than the current violation-ridden program. Such a program, they argue, would constitute a return to the dark days of the bracero program, which brought nearly half a million Mexicans to perform backbreaking labor for low wages on western farms in the two decades after World War II. Proponents of a new guestworker scheme counter that the current program is too heavily regulated and that the proposed program would offer a legal alternative to the widespread use of undocumented farm labor.

While policy makers disagree as to whether agricultural employers face a labor feast or famine, few question whether the program was necessary at its start. Even the H-2 program’s harshest critics presume that its creators were merely responding to a dearth of labor brought about by the wartime economy. Yet a look at the World War II-origins of the "Emergency Farm Labor Importation Program," the scheme that led to the H-2 program in the East and the bracero program in the West, reveals that the officials who created the guestworker program never believed that there was a national labor shortage in agriculture. They created the importation program, not because it was necessary, but because it was politically expedient to do so, because
the nation’s most powerful growers were demanding the preservation of the cheap, plentiful, and complacent labor force to which they had become accustomed over the previous 20 years of agricultural depression.

[by the end of WWII,] African American observers couldn’t help noticing that the importees were enjoying benefits that domestic farmworkers never even imagined. "Fair Wages Should Begin at Home," began an editorial in Norfolk, Virginia’s, African American owned paper, the Journal and Guide. The author noted that West Indian laborers had been guaranteed a minimum wage of 40 cents per hour and adequate housing, "which is much more than any U.S. Negro farm laborers are assured of making." "A minimum wage has been denied Negro or white farm labor in the United States," the author continued, "Its [sic] a long story, the retelling of which need not be undertaken here. But the experiment points up what the farmers can do, and what our government can do when necessity demands that something be done."

The history of the Labor Importation program did indeed demonstrate what government could do either to facilitate or undermine farmworkers’ efforts to improve their condition. It did not demonstrate that the transformation of the federal government into a sort of crew leader to a nation had ever been driven by necessity. Federal officials created the Emergency Farm Labor Importation Program, not because they believed it was necessary, but because they believed it was expedient.

The Importation Program was certainly more palatable to growers than the effort to relocate domestic farmworkers from areas of surplus to areas of scarcity, but it undermined farmworkers’ efforts to lift themselves out of poverty. Farmworkers who struggled to bargain up their wages after 20 years of agricultural depression found themselves thrown into competition with farmworkers from abroad who could be deported for making the very same demands. But with workers from other Caribbean nations clamoring to work in the United States as well, American growers had little incentive to improve conditions. Those who did not like them could simply leave. In the last year of the war, 38,000 Jamaicans, Barbadians, St. Lucians, and British Hondurans labored in the United States alongside almost 62,000 Mexicans, 5,800 Bahamians,
120,000 POWs, and an undisclosed number of Puerto Ricans (who were only reluctantly
included in the program because, as citizens, they could not be deported for striking).

You can see these last two links' theme is that the history of open immigration in the 19th and 20th centuries in the United States was one of opening the doors in order to avoid employing African Americans or even southern whites. Immigrants seem to be preferred, according to Center for Immigration Studies, because they are easier to underpay and bully into unsafe work: "...[A]s citizens, they could not be deported for striking." Do keep in mind that there is a bias in the report, and yet, I think the logic does perhaps make sense. Read the next snip from this CIS link:

Lengthy article pulling together many historical sources on the effects of immigration on the African American community Link:

The two decades after World War II, with their rapid economic growth, presented another opportunity for black economic advancement. But it was during this period that immigration slowly began to rise after the lows of the 1920s and 1930s, and only a year after the struggle for black legal equality reached fruition with the Civil Rights Act of 1964, the groundwork for a new wave of mass immigration was established with the Immigration Act of 1965. Since then, nearly 20 million legal immigrants have moved here, in addition to millions of illegal immigrants. This flow continues at the rate of about one million a year, in an unfortunate repetition of the period
before World War I.

Prominent black Americans today are silent regarding the pernicious effects of this ongoing immigration on their brethren. But in the late 19th and early 20th centuries, there was no such reticence. In speeches and letters, newspapers and books, black Americans of all political persuasions spoke out about the harm done to them by the federal government's policy of allowing the mass importation of cheap labor. This publication draws together a selection of that commentary, to remind us of the logic underlying black Americans' heritage of protest against mass immigration as a fundamental impediment to black economic progress — a heritage forgotten in recent years.

Features quotes from Frederick Douglass, Booker T. Washington, W. E. B. Dubois, and Marcus Garvey, plus a wide variety of newspapers printed for the black public.

The Economy Slowed but Immigration Didn’t

This report shows through a number of measures how the United States continues to allow open immigration over the decades, even when the economy slows down. It shows how the peaks of illegal immigration occur just before real dives in the economy I am not sure if that graph intends to infer a cause and effect.

An interesting, analytical report. Some of the materials at the Center for Immigration Studies are quite biased, and clearly heavy-handedly political. This report, while having a clear agenda, looks like it contains some very good data that is useful, with footnotes so you can go look for yourself. I did find one URL that did not work. Full of graphs.

And from the U.S. Census, here are a variety of data covering many years.

Estimates of Illegals in U.S. between 1990 - 2000 (PDF format with a nice Executive Summary)

Basically, the Census estimated originally that there were 5 million "unauthorized immigrants" nationwide in January 1996, and revised to 5.8 million. They now estimate 7 million undocumented immigrants nationwide in January, 2000. The Census Bureau figured California had 32% of the total, followed by Texas, Illinois, Arizona, Georgia and North Carolina. The report is estimating a total of 8.7 million "residual foreign born" which includes "quasi legal" residents. The report explains the term to include residents admitted to lawful permanent residence, asylees, refugees, parolees, and long-term non-immigrant residents. The interesting thing is that the report summarizes everything by saying that while there were 1.5 million illegal immigrants living in the U.S. before the 1990's, 5 million more illegally immigrated during the 1990's.

The inquiring mind wonders WHY? There was much more authoritarian government to run from in Latin America in the 1980's. I am not sure that the economy all over Latin America or even just in Mexico is that much worse in the 1990's than it was in the decades before. What changed?

Well, the guestworker program, together with Bill Clinton's push for NAFTA, the outsourcing of jobs to maquiladoras (which then lost jobs to China, I understand), helps put things into some perspective. I think perhaps it is the insatiable appetite of business for cheap and compliant labor. During this same period, we in the United States also so the appearance of school standardization tests which pressured the public schools to standardize the output (students) to the optimum required by local businesses. Businesses were complaining that students graduated with high school diplomas and yet were unable to read or make change. The political solution put in place, which swept the nation, with the election of President George W. Bush, was high stakes educational testing. Federal funding was linked to mandatory high stakes testing. Here is a very recent news story from the San Francisco Chronicle about the California high stakes test:

Californians Like More Tests In Their Schools

The vast majority of Californians support not only the state's controversial high school exit exam but also the idea of requiring all students to pass a test before advancing to the next grade level, a new poll shows.

Although no such idea is in the works at the moment, 72 percent of Californians surveyed by the Public Policy Institute of California said they would support such a test for all 12 grades. The idea has received strong support in national surveys, inspiring the pollster to ask the question locally.

Even more Californians, 73 percent, favor the exit exam that students must pass for the first time this spring to graduate from high school, according to the survey, which is being released today.

"People aren't completely sold on the idea that testing is perfect, but tests give a sense that students are learning in school," said Mark Baldassare, research director of the Public Policy Institute. "If someone sent out a notice that students were doing great, that wouldn't be enough for people today. They need something tangible, and they've gravitated to testing."

The poll is being published at a time of protests and lawsuits over the withholding of diplomas this spring from thousands of high school seniors who have not passed the exit exam, which tests proficiency in math and English.

The survey asked 2,501 state residents a wide range of questions about their views of public education. It has a plus or minus 2 percent margin of error.

The results show that more than half of residents from a variety of ethnic and income
backgrounds take a dim view of public education in the state -- except when it comes to their own local schools. Eight in 10 residents surveyed give their local schools a passing grade, the poll found. (Snip)

The first diplomas will be withheld this spring from students who have not passed the exit exam. Although the vast majority of students (roughly 9 out of 10) have passed the test, low-income students and those who speak little English make up most of those who haven't.

Attorney Arturo Gonzalez, one of several lawyers trying to persuade the state courts to block the exam's looming consequences, said he believes the poll results show that most Californians "don't understand the issues" when it comes to the exit exam.

"Ask the same people if they think it's fair to deprive students of a diploma if they passed all their classes but were not taught the material on the exit exam," Gonzalez said. "And ask, 'Do you think it's fair to deprive a student of a diploma if they were taught math and English by teachers who were not credentialed to teach math and English?' I think you'd get totally different answers. I think it'd be 70 percent the other way."

State records show that in 2004, the most recent year of data, 1 in 4 math and English classes did not have a qualified teacher under the requirements of the federal No Child Left Behind Education Act. (Private schools do not require teachers to be credentialed or to pass the exit exam.)

Californians -- especially Democrats -- believe schools should do more to help students pass the exit exam, a test of basic math, English and algebra skills, the survey showed. Students have six chances to pass the test, beginning in 10th grade. In all, 80 percent of Democrats and 60 percent of Republicans favor requiring schools to provide small English and math classes taught by fully credentialed teachers for students who initially fail the test, the survey showed.

Meanwhile, Bay Area residents were least supportive of the high-stakes tests compared with other regions of the state. Nevertheless, Bay Area support was still strong at 66 percent for a promotion test, and 68 percent for the exit exam, the survey found.

"The graduation test is a minimal competency test," said Melanie Chadwick of Union City, one of those surveyed. "These are the basic skills children should have to enter into adult life. It's a shame if any of the children don't pass that test."

Chadwick works in the accounting department of Cal State East Bay and is the mother of four school-age children, ages 6 to 14, in the New Haven Unified School District. She is expecting a fifth child, and said that all students should be required to pass a promotion test to prove they are performing at grade level.

Chadwick called it a disservice to promote students who couldn't pass it. In those cases, she said, "students do need to be held back."

Other key findings of the survey:

-- 64 percent favor raising the income tax of the "wealthiest Californians."

-- 60 percent say schools are doing a poor job of preparing students for work.

-- 53 percent say schools are doing a poor job of preparing students for college.

-- 44 percent say schools are doing a poor job of teaching students to read, write and do math.

-- 55 percent gave their own local schools a grade of A or B, while 80 percent gave at least a C.

The full survey can be found at

(Note the telephone interviews were conducted in

I have been thinking about what is the best thing to do on Monday, May 1, for all my friends, both immigrant born and African American, and for this great nation that I do love. I feel so much that we have wandered far off course. And so I went back and looked at one of the Reverend Dr. Martin Luther King, Jr.'s most amazing speeches, which he delivered at the March on Washington. He said this:

I Have a Dream

Address at March on Washington
August 28, 1963. Washington, D.C.

I am happy to join with you today in what will go down in history as the greatest demonstration for freedom in the history of our nation.

Five score years ago, a great American, in whose symbolic shadow we stand signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of captivity.

But one hundred years later, we must face the tragic fact that the Negro is still not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later, the Negro is still languishing in the corners of American society and finds himself an exile in his own land. So we have come here today to dramatize an appalling condition.

In a sense we have come to our nation's capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men would be guaranteed the inalienable rights of life, liberty, and the pursuit of happiness.

It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check which has come back marked "insufficient funds." But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check -- a check that will give us upon demand the riches of freedom and the security of justice. We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to open the doors of opportunity to all of God's children. Now is the time to lift our nation from the quicksands of racial injustice to the solid rock of brotherhood.

It would be fatal for the nation to overlook the urgency of the moment and to underestimate the determination of the Negro. This sweltering summer of the Negro's legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. Nineteen sixty-three is not an end, but a beginning. Those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.

(all speeches available at link)

Oh, Martin, what would you say? You managed to break the chains of segregation, but so many of your African-American brothers and sisters still live on a lonely island of poverty in the midst of a vast ocean of material prosperity. I fear that those who care about justice have allowed ourselves to be split into warring camps.

Let us renew our pledges of community. Reach out to one another and pledge to support each other against those who sow hatred and division. Recall that before the immigrants came to cash any checks, Africans were being shipped against their will into slavery to this country, more than 400 years ago. Their descendants have a claim upon that promissory note, as surely as all the newcomers. I will not say nay to either group. This is a country that must keep its first promises before it begins to make new promises. Let us say, with Martin, Let Justice Roll Down Like a Mighty Flood, and remember the end of his speech:

I have a dream that one day the state of Alabama, whose governor's lips are presently dripping with the words of interposition and nullification, will be transformed into a situation where little black boys and black girls will be able to join hands with little white boys and white girls and walk together as sisters and brothers.

I have a dream today.

I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.

This is our hope. This is the faith with which I return to the South. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.

This will be the day when all of God's children will be able to sing with a new meaning, "My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring."

And if America is to be a great nation this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!

Let freedom ring from the snowcapped Rockies of Colorado!

Let freedom ring from the curvaceous peaks of California!

But not only that; let freedom ring from Stone Mountain of Georgia!

Let freedom ring from Lookout Mountain of Tennessee!

Let freedom ring from every hill and every molehill of Mississippi. From every mountainside, let freedom ring.

When we let freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! free at last! thank God Almighty, we are free at last!"

And let us add to black and white, also brown, yellow and all the rainbow in which humans can come, And join hands and sing "Free at last! thank God Almight, we are free at last!"

Dr. Martin Luther King, Jr. called on people to take risks in what he called a "dangerous unselfishness." He used that phrase in "I've Been to the Mountaintop" speech given at beginning of the effort to assist the sanitation workers in Memphis, where he was assasinated. He gave this parable to call on people to continue the effort and take risks to assist others unselfishly, and this seems particularly apt at this moment:

...we've got to give ourselves to this struggle until the end. Nothing would be more tragic than to stop at this point, in Memphis. We've got to see it through. And when we have our march, you need to be there. Be concerned about your brother. You may not be on strike. But either we go up together, or we go down together.

Let us develop a kind of dangerous unselfishness. One day a man came to Jesus; and he wanted to raise some questions about some vital matters in life. At points, he wanted to trick Jesus, and show him that he knew a little more than Jesus knew, and through this, throw him off base. Now that question could have easily ended up in a philosophical and theological debate. But Jesus immediately pulled that question from mid-air, and placed it on a dangerous curve between Jerusalem and Jericho. And he talked about a certain man, who fell among thieves. You remember that a Levite and a priest passed by on the other side. They didn't stop to help him. And finally a man of another race came by. He got down from his beast, decided not to be compassionate by proxy. But with him, administered first aid, and helped the man in need. Jesus ended up saying, this was the good man, because he had the capacity to project the "I" into the "thou," and to be concerned about his brother. Now you know, we use our imagination a great deal to try to determine why the priest and the Levite didn't stop. At times we say they were busy going to church meetings--an ecclesiastical gathering--and they had to get on down to Jerusalem so they wouldn't be late for their meeting. At other times we would speculate that there was a religious law that "One who was engaged in religious ceremonials was not to touch a human body twenty-four hours before the ceremony." And every now and then we begin to wonder whether maybe they were not going down to Jerusalem, or down to Jericho, rather to organize a "Jericho Road Improvement Association." That's a possibility. Maybe they felt that it was better to deal with the problem from the causal root, rather than to get bogged down with an individual effort.

But I'm going to tell you what my imagination tells me. It's possible that these men were afraid. You see, the Jericho road is a dangerous road. I remember when Mrs. King and I were first in Jerusalem. We rented a car and drove from Jerusalem down to Jericho. And as soon as we got on that road, I said to my wife, "I can see why Jesus used this as a setting for his parable." It's a winding, meandering road. It's really conducive for ambushing. You start out in Jerusalem, which is about 1200 miles, or rather 1200 feet above sea level. And by the time you get down to Jericho, fifteen or twenty minutes later, you're about 2200 feet below sea level. That's a dangerous road. In the day of Jesus it came to be known as the "Bloody Pass." And you know, it's possible that the priest and the Levite looked over that man on the ground and wondered if the robbers were still around. Or it's possible that they felt that the man on the ground was merely faking. And he was acting like he had been robbed and hurt, in order to seize them over there, lure them there for quick and easy seizure. And so the first question that the Levite asked was, "If I stop to help this man, what will happen to me?" But then the Good Samaritan came by. And he reversed the question: "If I do not stop to help this man, what will happen to him?".

That's the question before you tonight. Not, "If I stop to help the sanitation workers, what will happen to all of the hours that I usually spend in my office every day and every week as a pastor?" The question is not, "If I stop to help this man in need, what will happen to me?" "If I do no stop to help the sanitation workers, what will happen to them?" That's the question.

Let us rise up tonight with a greater readiness. Let us stand with a greater determination. And let us move on in these powerful days, these days of challenge to make America what it ought to be. We have an opportunity to make America a better nation. And I want to thank God, once more, for allowing me to be here with you.

And from his Letter from Birmingham Jail, responding to critiques that he should not have meddled as an outsider from Atlanta, Dr., King said,

..., I am in Birmingham because injustice is here. ... Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.

So let us say, like the Prophet Amos "Let justice roll down like waters and righteousness like an ever-flowing stream.

The beautiful photograph of MLK with the picture of Ghandi is from the excellent website MLK Online,

Friday, April 28, 2006

Ken Svengalis, Law Library Consumer Watchdog

OOTJ is delighted to present, with permission, Ken Svengalis' recent excellent post to Law Lib listserve about the rising costs and other problems with print resources and serials in law libraries. Let us recommend to you his upcoming

10th edition of the annual Legal Information Buyer's Guide & Reference Manual
(due out May 10)

Here is Ken:

In February, I began updating all the pricing information in my book. This process includes updating all the initial costs of reviewed publications and adding the 2005 supplementation costs for all the supplemented titles to the string of supplementation costs which go back, in many cases, to the early. 1990s. This is a very time-consuming task. Some publishers are very cooperative--LexisNexis, (including Matthew Bender and Shepard's), Aspen, and others provide spreadsheets of supplementation costs. Others, particularly West, are not cooperative. It is only through the aid of many law librarians that I am able to laboriously collect these supplementation costs for the year just completed. The West web site provides some supplementation cost information (much more than former years) by clicking on "Choose Volumes," but the figures for individual components are list costs, not the more useful subscriber costs which are more relevant to libraries on standing order. Moreover, one cannot readily use this feature to ascertain the exact cost for the entire calendar year just concluded unless one uses the fill-up
feature and does it right after the year has ended. And even if one times it right, thecosts are about 15-17%% higher than what a subscriber paid for the same items. West does keep this historical data in its system back a number of years, but they will not readily provide it.

But I wonder how many of you realize that West is the only legal publisher that will not aid the AALL Price Index Committee in its work. That's right. All the other publishers willingly provide the committee with supplementation cost information, but West has
REFUSED to do so. Their current rationale is that the discount pricing of their Personal Practice Libraries makes these figures for individual titles irrelevant. Of course, this conveniently allows them to escape scrutiny of their supplementation cost increases, which
are often quite substantial, and clearly in excess of what their competitors are doing. The Personal Practice Libraries may provide some savings, but libraries are forced to buy more stuff and keep it updated, often unnecessarily so. Sadly, AALL will not call them on it and simply lets their refusal go unchallenged. I served on the Committee which established the new Price Index and served on the index committee for several years after that. All during that time, we heard that AALL leadership was going to approach West management through proper channels to secure their cooperation. Several (now) past presidents promised me personally thy would talk with West management. It never happened.. Consequently, the Price Index figures are obtained from the financial records of various law libraries. This is not to say that the figures in the Index are not accurate, but they probably do not match up with West's own internal
numbers, which I have generally found to be reliable. But West's refusal is unconscionable and contemptuous of its best customers.

Another point needs to be made here. The former FTC Guides for the Lawbook Industry specified, and the present (voluntary) Guide to fair Business Practices for Legal Publishers specify, that publishers were (or are) to provide supplementation cost history. The FTC Guides required the last two years worth. The current Guide to Fair Business
Practices for Legal Publishers specifies (Principle 2. Article 3, i, iv) that publishers are to provide "Where possible, historic data on the cost of supplementation for the product." In my view, this is the most important provision in the entire document, yet it is ignored by West. It was once the practice of some publishers to provide this information on print flyers. Few now do so on web sites (BNA Books being one notable exception). But most at least provide this information to the P{rice Index Committee, or to yours truly, upon request). West does neither. Yet it would be a simple matter to include the string of annual supplementation figures to each product listing on their web site--a feature far less involved than all the individual component pricing they already provide. We all operate in a free market. But at least give us the information to make informed purchasing (and cancellation) decisions. There is no excuse for not being transparent on matters of pricing.

The question we all have to ask ourselves is this: Are the monetary contributions which West makes to our association (exhibit fees, scholarship contributions, etc.) which help keep our dues low, worth the millions of dollars in excessive costs our libraries collectively pay year after year for West publications and which are dramatically changing the size and scope of our collections. Case in point. In 1996 (the year of my 1st edition), the Atlantic 2d advance sheets cost $215,00 annually. They now cost: $689.00, an increase of 220% on 10 years. And this is just one example of thousands of such titles. If your library's budget hasn't increased 220% over that time span, you've obviously made a LOT of reductions in your collection and you can thank the bean counters at ThomsonWest for it.

Supplementation costs are one thing, but the initial costs of West publications also bear scrutiny. Generally speaking, I update the initial cost figures in my book in February and March. However, this year, I noticed that prices were not only up (as of February) over 2005, but that, in April, another round of price increases took effect. In ten years of tracking West prices, or those of any of the major legal publishers, I have never seen this happen. This was a seismic price shift for which one would have to go back to the bad old Matthew Bender days to find a parallel. Even in Bender's worst years the annual increases never exceeded 25%. Here is a sampling of West's two-pronged price increases between 2005 and 2006 (where available, I include the intermediate price as well as the current price) and the percentage increase from 2005 to 2006:

Modern Workers Compensation 580--627--795--37.06%
Lane. Medical Litigation Guide 700--883--1026--46.60%
Lane. Goldstein Trial Technique 462--630--715--54.77%
Federal Procedure 2798--3293--3618--29.30%
Causes of Action 2d 1007--1234--1497--48.65%
Am Jur Trials 99 2037--2436--2831--38.98%
Proof of Facts, 1st-3d 3213--4245--4740--47.50%
Am Jur Pleading & Practice Forms 2700--3886--43.90%
Stein. Personal Injury Damages 650--721--838--28.90%
Peel. Consolidated Tax Returns 390--612--56.90%
Social Security Law & Practice 1950--2002--2300--17.90%
Ferrey. Law of Independent Power 422--516--800--89.57%
American Law of Products Liability 1794--1995--2441--36.06%
Callman. Law of Unfair Competition. 1599--2048--28.08%
Martinez. Local Government Law 661--799--875--32.37%
Am Jur Legal Forms 2250--2578--2800--24.44%
Fletcher Corporation Forms Ann. 1263--1600--1888--49.48%
Nichols Cyclopedia of Legal Forms 1968--2309--2956--50.20%
Dore. Law of Toxic Torts 1088--1282--1489--36.82%
Malone. Envir. Reg. of Land Use 331--381--447--43.72%
Novick. Law of Environ. Protec. 542--664--771--42.25%
Stever. Law Chem. Reg. & H. W. 920--1309--42.28%
Wright & Miller. Fed. Prac. & Proc 1400--1867--2021--33.35%
Fox. Health Care Financial Trans. 257--623--142.41%
Miles. Hlth Care & Antitrust Laws 873--1242--42.26%
Rep. of Wit. Bef Fed Grand Juries 386--626--62.17%
Nichols. Drinking/Driving Litigation 580--875--962--65.86%

I could go on...

Obviously something was going on here, like an internal pricing study which produced the second round of price increases in addition to the "normal" hefty annual increases. And maybe a sense that the Justice Dept. Antitrust review ala 1996 is now ancient history and that no one is watching. I am indebted to the West web site for all the numbers.

As I discovered what was happening, I had to laugh each time I received one of those West holiday promotional e-mails offering, for example, a St. Patrick's Day 20% discount on every order of $150 or more. Let's' see now, Fletcher Corporation Forms Annotated: Old
(2005) price: $1263.00. New price $1888 minus 20% = $1510.00. Certainly no pot of gold there. Reminds me of the furniture store sign offering 20% off--20% off of what?

Then there are the less generous offers-- a box of chocolates or a $50.00 American Express gift "cheque" (parlez-vous francais?) with $250 purchase (too late, that was the March Madness promotion that expired March 10, 2006). Do they really think that no one would
notice that all the promotions were preceded (or accompanied) by these across the board price increases of unprecedented size.

Another thing I have noticed when comparing West to the competition (if there really is competition in the particular subject areas in which you are interested): LexisNexis Matthew Bender price (i.e. annual subscription rates) increases are generally much lower
across the board (about 5-7% annually depending on the year). Ditto BNA: 5-6%. Also, the initial prices of LexisNexis (i.e. Michie) titles may remain unchanged for several years in a row. But West increases are significantly higher and relentless; and few opportunities to raise initial prices or supplementation costs are missed. It is clear that the bean counters watch every title and make every effort to make certain that supplementation costs rise (churn out another revised volume, jack up cost of pocket parts, revise index vols., etc.).

It is clear that, when preparing a budget, you must ascertain what percentage you are spending with each of the major publishers and then apply an appropriate percentage increase to each of them based on the available data. And unless you scrutinize West's increases, in particular, and take steps to control them (through cancellations), you will find that West will become akin to the Blob that consumed the law library.

I don't know if anyone else caught these two rounds of West price increases, but it should alert all law librarians to pay close attention to West pricing policies. You simply can't afford to ignore what they are doing because they have obviously devoted considerable time and staff to the effort, and then ply us with stuffed animals and luggage once a year at the annual meeting, They are also now sponsoring many of the SIS receptions as well as the big West bash, ALL of which WE pay for--OVER and OVER and OVER AGAIN. The West PR machine is certainly well-oiled and we have to resist being co-opted either as individuals or as an association.

Ken Svengalis
Rhode Island LawPress (celebrating it's 10th year as consumer watchdog--RUFF!!!)

The photograph shows Ken receiving a lifetime achievement award from Tracy Thompson and Darcy Kirk at the LLNE luncheon at the 2002 AALL annual meeting.

Thursday, April 27, 2006

Electronic Frontier Foundation Challenges Patent on Internet Test Taking

Who knew that distance education was teetering on the edge of disaster? Evidently laid a false patent claim to the technology that allows students to take tests over the Internet.... EFF to the rescue!

April 05, 2006
EFF Challenges Dangerous Patent on Internet Test-Taking

Illegitimate Patent Chills Distance Learning and University Education

San Francisco - An extremely broad patent claiming to cover almost all methods of online testing is coming under fire today. has used this illegitimate patent to demand payments from universities with distance education programs that give tests online. However, a patent reexamination application filed by the Electronic Frontier Foundation (EFF) today shows that wasn't the first to come up with this testing method.

"Bogus patents like this one highlight the problems with the current patent system. This is a good example of exactly what needs to be fixed to make patents useful to innovators and educators alike," Schultz said.

In conjunction with Theodore C. McCullough of the Lemaire Patent Law Firm, EFF filed a request for reexamination with the United States Patent and Trademark Office showing that IntraLearn Software Corporation had been marketing an online test-taking system long before filed its patent request. But claims that its patent allows it to collect license fees for virtually all online testing methods, preventing educators from developing online coursework and communicating with students over the Internet. As online testing is critical to Internet education, the enforcement of this patent threats academic speech and academic freedom.

"Our nation's education system already faces severe budget constraints and a shortage of resources," said EFF Staff Attorney Jason Schultz. "We shouldn't be diverting resources away from teaching to pay off bogus patent threats."

Electronic Frontier Foundation Releases Paper Studying Inintended Consequences of Digitial Millennium Copyright Act

The Electronic Frontier Foundation has released an in-depth paper studying the inintended consequences of the Digital Millennium Copyright Act. This is a very lengthy report, which can be read and downloaded in PDF format at the above link. I will attach the "executive summary" portion here, though:

Since they were enacted in 1998, the "anti-circumvention" provisions of the Digital Millennium Copyright Act ("DMCA"), codified in section 1201 of the Copyright Act, have not been used as Congress envisioned. Congress meant to stop copyright infringers from defeating anti-piracy protections added to copyrighted works and to ban the "black box" devices intended for that purpose. 1

In practice, the anti-circumvention provisions have been used to stifle a wide array of legitimate activities, rather than to stop copyright infringement. As a result, the DMCA has developed into a serious threat to several important public policy priorities:

The DMCA Chills Free Expression and Scientific Research.
Experience with section 1201 demonstrates that it is being used to stifle free speech and scientific research. The lawsuit against 2600 magazine, threats against Princeton Professor Edward Felten's team of researchers, and prosecution of Russian programmer Dmitry Sklyarov have chilled the legitimate activities of journalists, publishers, scientists, students, programmers, and members of the public.

The DMCA Jeopardizes Fair Use.
By banning all acts of circumvention, and all technologies and tools that can be used for circumvention, the DMCA grants to copyright owners the power to unilaterally eliminate the public's fair use rights. Already, the movie industry's use of encryption on DVDs has curtailed consumers' ability to make legitimate, personal-use copies of movies they have purchased.

The DMCA Impedes Competition and Innovation.
Rather than focusing on pirates, many copyright owners have wielded the DMCA to hinder their legitimate competitors. For example, the DMCA has been used to block aftermarket competition in laser printer toner cartridges, garage door openers, and computer maintenance services. Similarly, Apple invoked the DMCA to chill RealNetworks' efforts to sell music downloads to iPod owners.

The DMCA Interferes with Computer Intrusion Laws.
Further, the DMCA has been misused as a general-purpose prohibition on computer network access which, unlike most computer intrusion statutes, lacks any financial harm threshold. As a result, a disgruntled employer has used the DMCA against a former contractor for simply connecting to the company's computer system through a VPN.

Microsoft zapped in the EU

Reuters reports today:

A European Union judge on Thursday challenged a landmark European Commission antitrust decision that software giant Microsoft abused its dominance by illegally muscling out rivals.

As part of the 2004 decision, the Commission said Microsoft should provide competitors with technical information to allow them to make server software that works smoothly with Microsoft's Windows, used by 95 percent of the world's PCs.

The Commission says that without this information, rivals cannot compete with viable, or interoperable, non-Microsoft software. Microsoft argues that this amounts to losing technology that is protected by intellectual-property rights. Court of First Instance Judge John Cooke, in charge of the case on the 13-member special panel, asked tough questions of the Commission lawyers on the fourth day of a weeklong hearing.

"The information which forms interoperability is hugely valuable commercial information," said Cooke, who is responsible for writing a draft ruling.

He asked the Commission whether "competition rules require that (to) be taken away from Microsoft, conveying a huge commercial advantage."

The Commission's reputation as Europe's top antitrust authority hinges on the outcome of the hearing, which is investigating whether to uphold the 2004 decision.

The ruling will take months to reach.

As part of its decision, the Commission ordered Microsoft to change its business practices, which included providing the technical specifications. It also hit the company with a record fine of 497 million euros ($617 million).

In answer to Cooke's probing, a Commission patents and copyright lawyer said the court had said in the past that enough information must be given to permit others to compete or to create an "effective competitive structure."

The Commission on Wednesday argued that it merely ordered Microsoft to move back toward its earlier, more equitable pattern of doing business in the field, where supplying such information was the norm.


The Commission ordered Microsoft to provide protocols--the rules and language of communications among the machines within a computer network--for server software that allows accessing files, printing and logging in.

But Microsoft argued that in reality it would have to give up more information than protocols, infringing its rights.

"The Commission calls for functional equivalence," Microsoft lawyer Ian Forrester said, referring to the level of smoothness that software needs to work well with Windows. "In order to achieve that, you have to go far beyond interoperability."

Critics of Microsoft argued not only that protocols were enough but by not providing them Microsoft stalled innovation in the market.

The founder of the Samba Team, creators of open-source server software, showed the court a paperback-size storage server, which he said can be turned into a work-group server with the aid of the information.

Once it gives over the protocols, "Microsoft no longer has a stranglehold over the world's networks," said Andrew Tridgell, whose group took years to create print and file server software that works with Windows.

A ruling in favor of Microsoft will allow it to pursue the business practices that have helped it to become a household name around the world. But if the court upholds the decision it could spur the Commission to act again against the company.

After scores of wildly excited comments on Slashdot link here (which led me to the story), somebody notes that the Microsoft stock is up 1.5 points today. I guess the NYSE is not too worried about the EU Commission or the Court.