ACSBlog

  • August 4, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    The Challenge to the EPA’s Clean Power Plan Regulations

    Obama’s third top domestic priority, EPA’s Clean Power Plan regulations, proposed in preliminary form in June 2014—which attempt to drastically cut carbon pollution from power plants—is also under attack in the courts. Unlike Texas Governor Abbott’s and House Speaker Boehner’s suits, challenges to the final version of these rules, expected imminently, will not be dismissible as hoked up political maneuvers.  Coal and other energy industries, and coal-producing state governments will allege indisputably substantial impacts from the regulations; moreover, specific Clean Air Act provisions authorize parties affected by such rules to seek judicial review.

    But, on the merits of EPA’s CAA authority to adopt the sweeping CPP rules, both conservative and progressive commentators have suggested that King v. Burwell could indeed be the game-changer that Professor Gluck noted, not necessarily to the Obama Administration’s advantage.  In the words of environmentalist Harvard law professor Jodi Freeman, potential new danger for the CPP arises from Chief Justice Roberts’ “striking and significant departure” in ruling that, henceforth, courts must, on their own, interpret ambiguous statutory provisions, in cases where, as noted above, “questions of extraordinary political and economic significance” are at stake – rather than defer to an agency’s “reasonable” or “permissible” reading. 

    EPA rests its claim to promulgate the CPP rules on its resolution of a mind-numbing dispute over an intricate provision of the Clean Air Act, readily susceptible to being labeled, “ambiguous.”  Due to what one prominent environmental law expert has derided as a “glitch” in the 1990 amendments to the Clean Air Act, Congress included two versions of the same CAA subsection (§111(d)); one version pretty clearly provides authority for the CPP rules, while the language of the second, read literally, can be interpreted not to do so.  EPA claims the first version is the correct one.

  • 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.

  • 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.

  • 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.