ACSBlog

  • March 30, 2015
    Guest Post

    by David Driesen, University Professor at the Syracuse University College of Law. 

    In November of last year, a federal district court judge in Utah declared a rule protecting the Utah prairie dog under the Endangered Species Act (“ESA”) invalid as beyond Congress’ Commerce Clause power in People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service.  The district court applied Lopez-scrutiny in finding that the Commerce Clause could not regulate takings of the Utah prairie dog, a purely intrastate species, because there was no substantial relation to interstate commerce.  The district court also rejected every argument posited by the Fish & Wildlife Service (“FWS”) in holding that takings of the prairie dog to the point of extinction, and the impacts of the takings on the food-chain and ecosystem writ large, did not affect interstate commerce, thus making the regulations protecting the animal unconstitutional. The FWS has appealed this ruling to the United States Court of Appeals for the Tenth Circuit, which will likely hear argument in the fall. 

    This is not the first case to challenge the ESA’s application to so-called “intrastate species,” and the Courts of Appeal have uniformly rejected such challenges in the past. However, this ruling is important for several reasons. First of all, most species protected by the ESA are located exclusively in one state; an appellate ruling calling into question the constitutionality of intrastate species protection in a circuit with numerous protected species could significantly undermine the ESA. Second, although the judge ostensibly addressed a single rule issued under the ESA, his reasoning constitutes an attack on the Act’s take prohibition, which limits activities harming all protected species. The court’s ruling treats all activities regulated under the ESA as if they were non-economic because this provision does not expressly limit itself to economic activities. If this approach to evaluation of actions implementing the ESA survives, it would imply that the survival of species protected under the Act would depend on inexpert federal judges’ review of science linking a single species to economic impacts, as viewed through the skeptical lens of Lopez. And finally, a ruling upholding the District Court might be interpreted as creating a circuit split leading to Supreme Court review.

  • March 30, 2015

    by Caroline Cox

    Judith E. Schaeffer argues at Slate that the Supreme Court need only look at Chief Justice John Roberts’ confirmation hearings in order to make its decision on same-sex marriage.

    In the Los Angeles Times, David Savage reports that the Supreme Court may hear a First Amendment case that questions “whether a school official’s fear of violence justified disciplining students for wearing American flags on their shirts.”

    At The Nation, Zoe Carpenter questions whether the reasons behind conservatives’ recent interest in criminal-justice reform should matter.

    Michael Li writes at the blog for the Brennan Center for Justice that the Supreme Court has rejected a “mechanical interpretation” of the Voting Rights Act and provided a victory for minority groups in Alabama.

    The Editorial Board of The New York Times criticizes the lack of transparency in political spending, particularly the lack of disclosure on which companies are spending the most on elections.

    At Hamilton and Griffin on Rights, Ann C. McGinley takes a look at the Supreme Court’s decision in Young v. UPS.

  • March 29, 2015
    Guest Post

    by Steve Sanders. Professor Sanders teaches constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law.

    Technically, there was little if anything in what Gov. Mike Pence said about Indiana’s Religious Freedom Restoration Act in his ABC News interview Sunday morning that was factually false.  But much of what he said was materially misleading, due to his desperation to stay on message and to obfuscate.  To understand this crisis for the Pence administration and Indiana, it’s necessary to separate the law of the RIFRA from its politics. 

    Governor Pence (pictured) was correct that there has been a lot of misinformation about the RIFRA.  The blame lies with both its opponents and its proponents, as well as the media.  Contrary to what many progressive opponents have asserted, explicitly or implicitly, the bill does not create an immediate license to freely discriminate against gays and lesbians.  Nothing in the bill expressly refers to gays or civil rights laws.  And so some opponents of the law have done a disservice to reasoned and accurate public discourse.

    How does the law actually work?  Keep in mind that given the toxic politics that now surround the measure, no large, PR-sensitive business enterprise in its right mind would use it to turn away gay customers or employees.  But imagine a small business owner does so, claiming that associating with gay people violates his religious beliefs. 

    First, the affected victim of discrimination would need to file a civil rights complaint – assuming that he or she lives in one of the dozen or so Indiana cities, such as Indianapolis, where civil rights ordinances actually protect sexual orientation.  (In the rest of the state, such discrimination is perfectly legal right now, and Pence wants to do nothing to change that.)

    As the next step, the business owner would go to court, invoking the RIFRA and seeking an exemption from compliance with the civil rights ordinance.  This is the RIFRA’s central purpose: to force the government to convince a court that a challenged law – any challenged law – is “narrowly tailored” to serve a “compelling” government interest (as opposed to the First Amendment baseline of a rational relationship to a legitimate government interest) when the law is alleged to infringe someone’s exercise of religion.  My colleague Daniel Conkle, an expert on RIFRAs, believes it is likely that a gay non-discrimination ordinance would pass this test, and I respect his judgment.  And so in the end, the religious business owner might not actually get a pass from complying with the civil rights ordinance. 

    So why all the fuss?  Setting aside the problem that some religious business owners will now think they have a green light to discriminate, the real problem with Indiana’s RIFRA has been less about its substance than its politics – specifically, the motivations of some of its most ardent proponents. 

  • March 27, 2015
    Guest Post

    by Emily J.Martin, National Women’s Law Center

    On Wednesday, the Supreme Court delivered an important victory for pregnant workers, when in a 6-3 ruling it revived Peggy Young’s pregnancy discrimination case against UPS and sent it back to the lower courts for further proceedings.  In so ruling, the Supreme Court declined UPS’s invitation to read a key piece of the Pregnancy Discrimination Act completely out of the statute books.  This decision should put employers on notice that when they exclude pregnant workers with medical needs from accommodations that they make for workers with disabilities or injuries, they do so at their legal peril.  Nevertheless, the Court’s decision also requires a somewhat unpredictable and fact-intensive analysis of these sorts of pregnancy discrimination claims.  As a result, individual pregnant women may still face real uncertainty as to their workplace rights, and individual employers may choose to take their chances in litigation rather than promptly providing accommodations to women who need them.  Congress should act now to affirm and strengthen this decision, to ensure that no pregnant woman is forced to choose between her job and the health of her pregnancy.

    Peggy Young’s case arose more than seven years ago, when she became pregnant while working as a UPS driver.  Her doctor recommended that she avoid lifting more than 20 pounds during her pregnancy.  When UPS learned of this restriction, it refused to let her continue to do her job, even though in fact she only rarely did any heavy lifting.  UPS also refused to give her a light duty assignment, even though it provided such accommodations to drivers with on-the-job injuries, drivers with disabilities as defined in the Americans with Disabilities Act, and drivers who had lost their commercial driver’s licenses for health reasons or other reasons—including DUI convictions.  As a result, Peggy Young was forced onto unpaid leave for the duration of her pregnancy, and lost her UPS-provided health insurance.  She sued, arguing that UPS had violated the Pregnancy Discrimination Act (PDA) when it refused to provide her the same sorts of accommodations it provided to others.  But despite the clear language of the PDA requiring employers to treat pregnant workers the same as those “similar in ability or inability to work,” she lost in the lower courts, which held that UPS’s accommodation rules were “pregnancy blind” and thus did not violate the law.

  • March 27, 2015
    Guest Post

    by Nkechi Taifa, Senior Policy Analyst at Open Society Foundations

    I have spent over 25 years working on criminal justice reform issues and the recent Bipartisan Summit on Criminal Justice Reform, co-hosted by an unlikely alliance of Van Jones, Newt Gingrich, Donna Brazile and Pat Nolan, was absolutely colossal. Who would have imagined that a huge hotel ballroom would be packed as early as 8:00 a.m. with federal and local legislators, high administration officials, policy experts, criminologists, researchers, faith leaders, academicians, formerly incarcerated people and millennials – all from both sides of the aisle? The event was an ambitious undertaking – a full day jam-packed with featured presentations, panel workshops, video presentations, and luncheon keynote conversations, with U.S. Attorney General Eric Holder, Secretary of Labor Tom Perez, and Georgia Governor Nathan Deal all sharing their words of wisdom on criminal justice reform. Democratic Members of Congress spoke at the Summit in person, and Republican Members, along with President Barak Obama, made remarks via video. 

    As I sat in the audience, I reflected that criminal justice was no longer the lightening rod it was two decades ago, thanks to a more recent, huge paradigm shift.  Twenty years ago, Republicans and Democrats alike were horrible on criminal justice issues.  Candidate Bill Clinton left the campaign trail to oversee the execution of a mentally challenged man in Arkansas. Every year or so during the early 90s we fought against unwieldy omnibus crime bills, culminating in the “granddaddy” of all the crime bills – the Violent Crime Control and Safe Streets Act of 1994.  This bill expanded the federal death penalty to a level unprecedented in modern times, gutted habeas corpus reform, eviscerated the exclusionary rule, allowed for the prosecutions of 13-year olds as adults, and refused to address the crack/powder sentencing disparity, while implementing a slew of additional mandatory minimum sentences and offering monetary incentives to states to lock up more and more people for longer periods of time in exchange for loads of money to build more prisons.