ACSBlog

  • 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.

  • July 31, 2015
    Video Interview

    by Nanya Springer

    In the current political climate, the idea that Congress should pass legislation redistributing wealth and resources is met with abhorrence by conservatives and, often, with apathy by liberals. This was not always the case, argues William Forbath, Associate Dean for Research and Lloyd M. Rentsen Chair in Law at the University of Texas School of Law. At one time, liberals widely viewed economic inequality as a constitutional issue and believed redistributive measures were not only permissible, but constitutionally required to ensure the equal protection of the laws and to promote the general welfare.

    In an interview with ACSblog, Forbath explains that today’s liberals have come to think the Constitution does not speak to the redistribution of resources. This contradicts the views of key historical lawmakers who discussed anti-trust, banking, currency and trade as constitutional issues and who viewed Congress as constitutionally obliged to promote the country’s broad economic wellbeing through redistributive policies. Forbath adds that even before the Equal Protection Clause appeared in the federal Constitution, state constitution guarantees of equal protection focused on protecting the poor from legislation that favored economic elites. “The Constitution needs safeguards against oligarchy,” he asserts. “Ours is an anti-oligarchy Constitution.”

    Noting America’s shrinking middle class and diminishing equality of opportunity, Forbath concludes that “these older generations were right . . . You can’t keep a constitutional democracy or a republican form of government with boundless inequality. You can’t keep it without a broad middle class. You can’t keep it alongside an oligarchic, entrenched economic elite.” Instead, he promotes a return to the idea that we have a “Constitution of opportunity” ― one that supports a robust middle class and ensures opportunity for all, not just the privileged.

    Watch the full interview here or below.

     

  • July 31, 2015

    by Jim Thompson

    At Vox, German Lopez discusses the disparate disciplinary practices and subconscious racial biases that have disproportionately hurt black students in the school-to-prison pipeline.

    Sam Rosenfeld and Jake Rosenfeld write for The American Prospect about the benefits of public-employee unions and urge liberals to resist the efforts of those who seek to dismantle them.

    In The New York Times, Richard Pérez-Peña and Timothy Williams look at the role of video cameras in altering the public’s view of police, quoting Paul Butler, a professor at Georgetown University Law School, who states that footage from these cameras “corroborates what African Americans have been saying for years.”

    In The American Prospect, Heather Rogers reports on the dismal earning potential for home caregivers and the need for greater federal assistance to ensure their well-being.