• October 5, 2015
    Guest Post

    by Victor Williams, Clinical Assistant Professor of Law, Columbus School of Law, Catholic University of America

    On the first Monday in October, the Supreme Court returned from its long summer recess. Thus, the 2014 NLRB v. Noel Canning ruling -- which revoked President Barack Obama’s 2012 NLRB recess appointments – has well passed it first anniversary.

    The high court’s conjuring of an absolutist 3-day Senate recess minimum conjoined with a vague and unworkable “presumptive 10-day” Senate recess rule (with an added “unusual occurrence” complexity) continues to be analyzed.  Some in the academy acclaim Steven Breyer’s majority opinion as reflecting a new “pragmatic formalism” while most others praise it for at-least being opposite Antonin Scalia’s dissenting-concurrence which restated the D.C. Circuit’s uber- textualist ruling.  I continue to think it was a mistake for the judiciary to have involved itself in the political branch appointments battles.

    No reporter, academic, or commentator, however, has yet revealed that Noel Canning also revoked President Lyndon Johnson’s  January 1964 judicial recess appointments of civil-rights legends Leon Higginbotham, Spottswood Robinson, and David Rabinovtiz. In a just-published article in the Houston Law Review’s online edition, I expose the unconsidered Noel Canning consequence of the judgeship revocations.  As the recess commission were signed by Lyndon Johnson during an eight day intersession recess of the 88th Senate,  Noel Canning judged the recess 48 hours too short and the judgeships illegal.  The recess appointments  were “rendered illegitimate” for failing the “presumptive 10-day” recess test.  The eight day break was 48 hours too short.

    Six weeks after John F. Kennedy’s murder, LBJ forced the racial and religious integration of three federal courthouses. The new president signaled his administration’s commitment to civil rights and directly challenged racist and reactionary forces in both the Senate and the federal judiciary. The LBJ White House tapes tell the story for Higginbotham, Robinson, (expect a slight delay) and  Rabinovitz,  and as Johnson made sure he secured the most political capital for signing each commission in the coming battle for the Civil Rights Act.

  • September 30, 2015
    Guest Post

    By Nancy Shor and T.J. Sutcliffe. Ms. Shor is the Senior Policy Advisor for the National Organization of Social Security Claimants’ Representatives (NOSSCR) and Ms. Sutcliffe is the Director of Income and Housing Policy at The Arc.

    Unless Congress acts, at the end of 2016 nearly 11 million Americans who rely on Social Security disability benefits will face a devastating 19 percent benefit cut. In the past, Congress has never failed to come together on a bipartisan basis to prevent this kind of abrupt, across-the-board cut in one of our nation’s most beloved social insurance systems. But sadly, over the last year political brinksmanship has delayed necessary action and left beneficiaries and their families living in a state of ongoing alarm over the future of their economic security.

    Standing strong at 80 years and counting, our nation’s Social Security system insures nearly all American workers and their families for retirement, death, and qualifying disabilities. Given the reality of today’s economy, most workers have few if any savings to fall back on in the event of a life-changing disability. Social Security Disability Insurance (SSDI) benefits average only around $40 per day for disabled worker beneficiaries, but make up the majority of personal income for most. It’s no surprise that without SSDI, most beneficiaries and their families would face financial dire straits and often unthinkable choices.

    The current need to replenish Social Security’s Disability Insurance (DI) fund to account for long-term trends, such as an older workforce now in its disability-prone years, has been expected for several decades. Without congressional action, at the end of 2016 the DI fund’s reserves will be depleted, leaving only incoming payroll contributions to pay for benefits. As a result, unless Congress acts, SSDI beneficiaries will face a 19 percent benefit cut at the end of 2016.

  • September 30, 2015
    Guest Post

    by Jessica M. Eaglin, Associate Professor, Indiana University Maurer School of Law

    Fees and fines provide an appealing method of punishment in states facing the pressures of mass incarceration and continued budget constraints. But until courts receive meaningful guidance on how and when to impose fees and fines, and unless legislatures exercise meaningful restraint on the creation of user fees in particular, this punitive practice will continue to do more harm than good for defendants, local justice systems and society at large.

    Fees and fines are the economic sanctions imposed on defendants through the criminal justice system. Unlike punitive fines or restitution to compensate the victim of crimes, “user fees” are imposed solely to raise revenue. User fees range from nominal fees to obtain free public defender services to daily fines for use of GPS monitoring systems that supervise defendants pretrial or on probation to daily fines for incarceration in jail, and more.

    As states face severe budget constraints, the “offender-funded” model of criminal justice – where critical costs to running the justice system are pushed onto the defendants in the system – becomes more prevalent. Many state courts simply cannot function with the amount of money allocated by their legislatures, so they are resorting to creative alternatives that are often costly for defendants entering the justice system. Offensive examples spatter the news weekly: defendant fees cover toilet paper in jail; court-imposed home supervision technology; or unmet court expenses like coffee and office supplies and court support staff and other government operations

  • September 30, 2015

    by Jim Thompson

    In The New York Times, Tatiana Schlossberg reports that the New York City Bar Association released a report Monday “urging federal and state leaders ‘to make the reduction of mass incarceration a top priority.’”

    In the Huffington Post, Steve Sanders opines that the Indiana legislature’s quick fix of the Religious Freedom Restoration Act clearly demonstrates where the mainstream now lies on LGBT issues.

    Michelle Chen at The Nation discusses systematic inequalities that hinder the social mobility of children from low-income households.

    Jon Swaine and Oliver Laughland write in The Guardian that the FBI is continuing to resist outside pressure for “the creation of a fully comprehensive count of all killings by American police officers.”

    In The American Prospect, David Dayen argues that the Volkswagen emission scandal proves why the Department of Justice should prosecute individuals for corporate crime.

  • September 29, 2015
    Guest Post

    by Matt Wood, Policy Director, Free Press

    *This post is part of ACSblog’s symposium on the FCC’s net neutrality rules.

    Working for an organization that’s helped lead a decade-plus fight on a single set of policy issues, it’s hard to know where to begin.

    I could just start in the present. After all, intervenors and amici supporting the Federal Communications Commission’s rules filed at the DC Circuit just last week. My organization was one of almost two dozen parties joining that intervenors’ brief.

    Over the past ten years, Free Press has written extensively on these topics, focusing on issues like communications network nondiscrimination principles, common carriage fundamentals, broadband investment realities, and the proper legal treatment for broadband networks under federal communications law.

    That’s too long a history to choose from if I’m going to say anything coherent in a short post. So I’ll make it even harder and start in 1946.

    Why so far back? Because of a Supreme Court case called Marsh v. Alabama, a decision about public sidewalks owned by private companies. That case has always reminded me of common carrier communications networks (and law school – but that’s another story).

    To be sure, the questions surrounding Net Neutrality pre-date the modern “Open Internet” era at the FCC, in cases much closer to home for the agency. Beginning in the early 1960s, it started wrestling with questions about how to treat computer services offered over phone networks.