ACSBlog

  • August 21, 2014
    Guest Post

    by Atiba R. Ellis, West Virginia University College of Law, (@atibaellis)

    In a previous post, I discussed the triumph of the Civil Rights Act of 1964. Its passage sounded the death knell of legalized white supremacy and promised an era of equal opportunity.  With the shooting of Michael Brown and the subsequent civil unrest and siege policing in Ferguson, Mo., we must recognize another reoccurrence reminiscent of fifty years ago -- protest and in response to enduring racial subjugation. 

    The Ferguson situation is about the unjustified death of a Black youth (and the fact that this happens all too often in America). This happened in the context of the reality of structural inequality in America that civil rights policy has failed to address. As I argued in that earlier post, formal equality does not go far enough to remedy the enduring legacies of white supremacy, legacies that keep repeating themselves in police violence, political underrepresentation, and minority economic stagnation. It fosters a de facto second-class society for people of color without the economic wherewithal to navigate the system. 

    This structural reality exists and replicates notwithstanding the good intentions of the law or of people who rely on formal equality as remedy. Daria Roithmayr, Ian Haney Lopez, and Michelle Alexander have provided lucid scholarly explanations of different facets of 21st century racism.  The situation in Ferguson illustrates this reality in a number of ways.

    First, the shooting of Michael Brown offers a view on the reality of the enduring abuse that people of color suffer at the hands of the police. The problems of racial profiling, the use of excessive force by police departments, and the violence suffered by Black men and boys in particular has been well documented.  To take just one source: the ACLU has written numerous accounts about racial profiling in the United States. What their work makes clear is that the police disproportionately target minorities, and particularly minority youth because of their race.  And as a recent post on their blog has made clear, such profiling, and the tragic deaths that accompany it, are all too common in the United States.  And for those minority youth that survive these encounters, they are disproportionately incarcerated. The Sentencing Project has documented not only the 500 percent increase in incarceration rates in U.S. prisons generally over the last century, but the fact that a Black male under 35 has a 1 in 10 chance of being incarcerated.

    Second, as others have noted, Ferguson is two-thirds Black and one-third white, yet its mayor and five of the six members of its city council are white. And the overwhelming majority of its police force is white. And, as The New York Times has reported, this segregated power structure is the product of a long history of racial tension. The patterns of overzealous policing and unrepresentative governance make clear that the authorities in Ferguson are out of touch with the interests of the majority of people in Ferguson. This suggests a failure of competitive politics and a resistance of the government in Ferguson to hear the interests of its people. (Even when activists in Ferguson have sought to register people to vote – presumably to encourage people to use the democratic process rather than self-help violence – this too becomes highly contested.)

  • August 21, 2014

    by Caroline Cox

    ACS Board of Directors member Linda Greenhouse writes in The New York Times on the debate over whether Halbig should have a rehearing  en banc.

    In Politico, Lee Rowland discusses, in light of the situation in Ferguson, the importance of the First Amendment in fighting against injustice.

    ACS Bay Area Lawyer Chapter Board of Advisors member John Burris speaks on PoliticsNation with Al Sharpton about the legal issues surrounding the Michael Brown investigation.

    NPR’s Audie Cornish and Nina Totenberg report on the Supreme Court’s decision to put a hold on same-sex marriage licenses in Virginia.

    Garrett Epps writes in The Atlantic that Antonin Scalia’s dissent in Windsor may have paved the way for same-sex marriage victories and tarnished his status as a conservative hero.  

  • August 20, 2014
    Guest Post

    by Robert N. Weiner, Litigation Partner, Arnold & Porter LLP

    *This post originally appeared on Balkinization

    Sometimes, lawyers are fortunate that an opponent does not get the opportunity to reply to their argument and they get the last, unchallenged, word on an issue. The Halbig case [D.C. Circuit Court panel opinion negatively impacting the federal government’s effort to help low-income persons obtain health care insurance] presents a prime example. On Monday, the plaintiffs seeking to nullify a key provision of the Affordable Care Act filed their response to the Government’s petition for rehearing en banc. The response takes full-- albeit not fair -- advantage of being the last word before the D.C. Circuit considers the petition.

    To begin with, the Halbig plaintiffs never cite Rule 35 of the Federal Rules of Appellate Procedure, even though it is the controlling authority regarding en banc review. The Rule expressly recognizes that rehearing en banc is appropriate in order to avoid intercircuit conflicts, and that provision is directly applicable hereCurrently, there is a conflict between Halbig in the D.C. Circuit, denying tax subsidies to help low income families afford insurance in states with a Federal Exchange, and King in the Fourth Circuitallowing such subsidies. A grant of en banc review by the D.C. Circuit will automatically vacate the Halbig decision ending the intercircuit conflict and presenting the full court the opportunity to avoid one altogether if the D.C. Circuit ultimately agrees with the Fourth. If there is no conflict, the Supreme Court will have no compelling reason to take this rather narrow, yet overblown issue of statutory interpretation.

    The absence of a Government opportunity to reply may also have loosened the reins on the discussion of case law in the Halbig response. Arguing against rehearing en banc, the Halbig plaintiffs cite instances where the D.C. Circuit has denied such review in important cases. But the response fails to point out that most of those cases predate the amendment of Rule 35 in 1998 expressly identifying avoidance of a circuit split as a basis for en banc review and emphasizing in the Advisory Committee Notes the particular importance of such review in cases like this one, where rehearing could resolve the conflict. D.C. decisions that came before that change in Rule 35 shed no light on whether en banc review is appropriate on this ground.

    Of the post-1998 D.C. cases cited by the Halbig plaintiffs, one involved a situation where the Supreme Court had already granted cert on the issue. The other cases cited presented no conflict. Thus, none of these cases resolves whether en banc review is appropriate here, where the D.C. Circuit’s panel opinion is the source of the intercircuit split.

  • August 20, 2014

    by Caroline Cox

    At the Text & History Blog, Brianne Gorod argues that the U.S. Court of Appeals for the D.C. Circuit should rehear the Halbig case en banc.

    Connor Fridersdorf writes in The Atlantic that when criminal investigations begin in Ferguson, authorities must carefully consider how to treat the actions of law enforcement officers.

    Vox’s Amanda Taub questions whether a grand jury hearing on the shooting of Michael Brown is a delaying tactic.

    Julia Preston of The New York Times reports on immigrant rights movement leaders seeking to delay the deportations of millions.

    In The Washington Post, Katrina vanden Heuvel argues that a fairer system for choosing House members is necessary in light of frequent gerrymandering.

    Lauren C. Williams of Think Progress asserts that placing body cameras on police will not significantly improve the problem of police abuse.  

  • August 19, 2014

    by Caroline Cox

    Ta-Nehisi Coates of The Atlantic provides historical perspective on the relationship between African Americans and the police.

    The NAACP Legal Defense and Education Fund reports that thirteen civil rights groups have issued a call for action and reforms in response to Ferguson.

    Max Fischer writes for Vox on police treatment of journalists in Ferguson, where the ACLU has already sued the city to stop harassing reporters and won.

    The Economist compares the likelihood of being shot by police in the United States to that in other countries, “adjusting for the smaller size of Britain’s population, British citizens are around 100 times less likely to be shot by a police officer than Americans.”

    The Editorial Board of The New York Times advocates for President Obama to more forcefully use his clemency power.