ACSBlog

  • August 4, 2015

    by Jim Thompson

    In The Hill, Jordan Fabian writes about President Obama’s plans to call for a restoration of the Voting Rights Act on the law’s 50th anniversary this Thursday.

    Russell Berman at The Atlantic reports on a recent victory for voting rights advocates in the Republican-led state of Oklahoma.

    In The Nation, Michelle Chen argues that poor women of color would suffer the most if Planned Parenthood were defunded.  

  • August 4, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    The Texas challenge to DAPA

    In what the Washington Post’s Karen Tumulty tweeted as “The most underplayed story of the day,” on Friday, July 10, two of the three judges on a Fifth Circuit Court of Appeals panel made clear, during a contentious oral argument, their intent to leave in place a District Court injunction shutting down the Administration’s November 2014 decision to confer “deferred action” treatment on undocumented parents of U.S. citizens or lawful permanent residents, and on undocumented individuals who were less than 16 years old when they arrived here, if they come forward and pass background checks for criminal records or otherwise priority deportable activities.  As detailed by Marty Lederman and others, under regulations adopted by the Reagan Administration, and endorsed in 1986 amendments to the Immigration and Naturalization Act, deferred action treatment triggers freedom to work and receive benefits such as the Low Income Tax Credit and Social Security.

    The court argument concerned a legal challenge to the Administration’s program, officially styled Deferred Action for Parents of Americans (DAPA), filed by Texas’ high decibel conservative Governor Greg Abbott, on behalf of 25 other Republican-led states.  Earlier, on February 17, Texas federal trial judge Andrew Hanen had ruled against the Obama administration, and issued an injunction barring implementation of DAPA nationwide.  Texas’ Solicitor General had good reason to file in Hanen’s court; he was well-known for previous over-the-top accusations that the Department of Homeland Security “is clearly not” enforcing immigration laws, “helping those who violate them,” and, indeed, “completing the criminal mission” of transborder human traffickers.  Given the echoing hostility vividly on display from Fifth Circuit Judges Jerry Smith and Jennifer Elrod, their decision can pretty well be counted upon to leave Hanen’s injunction in place.  To have any hope of salvaging the DAPA program before leaving office in January 2017, President Obama will likely be back before the Supreme Court in a few months.

    How will the Court respond?  If Chief Justice Roberts stays focused on shielding the judiciary from politically driven, legally flimsy lawsuits that invite perceptions of judicial partisanship, the answer should be straightforward.  The Court will dissolve the District Court’s injunction, and dismiss the case on the ground that Texas has asserted no injury that gives it legal “standing” to get into court to present it.  That should be a straightforward call, based on the precedents and underlying policies strictly limiting the standing of government entities to involve the federal courts in inter-governmental political fracases.

  • August 3, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    Chief Justice John Roberts sent President Obama off for the July 4 holiday in what must have been a good mood, secure that his signature legislative accomplishment, the Affordable Care Act, had survived a second lawsuit designed to cripple it.  In King v. BurwellRoberts had mobilized a 6-3 majority to reject a claim by health reform opponents that ACA-prescribed tax credits were not available on federally run exchanges.  In addition to helping secure Obama’s legacy, the decision evidently bumped up Obama’s public approval ratings.  But the celebration must be tempered.  This big win is not the President’s doing, nor that of the Executive Branch he controls.  Instead, it was due to two conservative justices, the Chief and Associate Justice Anthony Kennedy, whose agendas, while generally divergent from his, meshed on this important occasion.  How often will these stars align again? 

    That question is not academic.  King v. Burwell is by no means the last case in which the President’s political opponents are seeking to cancel or gut his key initiatives.  Indeed, two currently await decisions in lower federal courts. The first lawsuit is Texas’ challenge to the Administration’s immigration policy—to defer, on a case-by-case basis, removal of some four million undocumented immigrants who do not fall within DHS priorities for enforcing the nation’s immigration laws. The second lawsuit is House Republicans’ challenge to significant components of the administration’s ACA implementation.  A third challenge, to the EPA’s proposed Clean Power Plan —the crown jewel of Obama’s anti-global warming agenda— is likely when its regulations are finalized in early August.

    Over the next three days, I’ll discuss the upcoming challenges to Obama’s policy agenda. I begin, however, with a discussion of what Chief Justice Roberts’ opinion in King v. Burwell might mean for these lawsuits, and others that may follow them.

    How will conservative Supreme Court justices and lower court judges respond to further attempts by conservative advocates to derail Obama’s legacy?  Clues to that question may be found in the King v. Burwell decision itself.  Roberts’ opinion, for himself, Kennedy, and the four liberal justices – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan – seemed to alter the rules of Chevron deference for interpreting high-impact laws like the ACA.  Roberts asserted that the Judiciary, not the Executive Branch, will get the decisive say on questions of “deep economic and political significance . . . central to . . . statutory scheme[s].”  Given that the Court’s 5-person conservative bloc includes four of the most conservative justices in the past 70 years , this self-empowerment might portend ominous consequences for progressive programs.  Yet the Chief Justice sketched out how he anticipates the Judiciary will operate in the future; and his instructions, if followed, could mitigate these concerns.

  • August 3, 2015

    by Jim Thompson

    Perry Stein of The Washington Post reports on John Oliver’s segment about D.C. statehood, arguing that the District’s lack of full representation in Congress is a fundamental hypocrisy of American democracy.

    At The New York Daily News, Theodore Shaw and Vishal Agraharkar lament recent, unprecedented assaults on the Voting Rights Act and encourage Congress to swiftly remedy these wrongdoings.

    In The New Republic, Rebecca Leber previews Obama’s Clean Power Plan, a policy proposal that could produce the final legal battle of his presidency.

     

  • August 3, 2015
    Guest Post

    by Stacey Dembo, Law Offices of Stacey J. Dembo

    This summer will mark two important milestones for public benefit programs in the United States. The Social Security Act will be celebrating its 80th anniversary on August 14th‒President Franklin D. Roosevelt signed the Social Security Act into law on that date in 1935. And last week marked the 50th anniversary of the enactment of the amendments that expanded the Social Security Act to establish the Medicare and Medicaid programs. This 50th anniversary provides an opportunity for us to reflect on the vital lifelines Medicare and Medicaid provide for our nation’s most vulnerable.

    It’s hard to believe that before 1966 roughly half of all people 65 and over and many people with disabilities, children, pregnant women and low-income working Americans were unable to afford the medical care they needed. When President Lyndon B. Johnson signed the amendments creating Medicare and Medicaid, he said the programs would correct “the injustice which denies the miracle of healing to the old and to the poor.”

    Now 50 years later, Medicare and Medicaid together cover over 100 million people, or about 1 in 3 Americans. Medicare covers almost all elderly Americans and some younger adults who are disabled. Medicare Part A, which covers hospital stays, nursing home care and hospice, is financed by the payroll taxes workers and employers pay. Medicare Part B, which covers doctors’ visits, surgeries and medical devices like wheelchairs, is paid for by Medicare recipients through income-based premiums. Medicaid, on the other hand, is financed via federal and state funds. It covers low-income adults, people with disabilities, half of all low-income children and pregnant women.