November 2011

  • November 9, 2011

    by Jeremy Leaming

    Right-wing policymakers triumphed impressively last year taking control of many statehouses from coast to coast. Many of those lawmakers were ushered into office backed by Tea Party fervor, and lots of money from the likes of Charles and David Koch, the billionaire brothers, who head Koch Industries and espouse efforts to radically constrain government.

    A year after their sweeping victories, however, some of their most outrageous policies were shelved by large numbers of voters last night.

    The frontal assault on public sector workers in Ohio, as noted by the Plain Dealer, was squashed by voters, 61 percent to 39 percent. In a guest post for ACSblog, Ohio State University law school professor Dan Tokaji noted that SB 5, which gutted collective bargaining rights of public workers, was a “center of Governor Kasich’s first year in office.” Tokaji said the defeat of the anti-workers’ rights law was not only a major setback to the Republican governor, but also has ramifications outside the Buckeye state. If the law would have survived, Tokaji said it would have dealt a “crippling blow to organized labor, drastically curtailing its political influence.”

    Mississippi provided a mixed bag, defeating a radical anti-abortion measure, but supporting a stringent new voter registration law. As noted by The New York Times, perhaps one of the night’s “biggest surprises” was the state’s rejection of a proposed constitutional amendment that would grant legal rights to embryos, effectively outlawing abortion and other forms of birth control in the state. That policy was advocated by a Religious Right group called Personhood USA, which says it is pushing similar measures all over the country, and doing so, in part, “to glorify Jesus Christ in a way that creates a culture of life so that all innocent human lives are protected by love and by law.”

    Following defeat of the measure, Keith Ashley in a blog post for Personhood USA said the group understands the difficulty of “changing a culture,” and that it vows “to continue on this path towards affirming the basic dignity and human rights of all people ….”  

    Nancy Northup, president and CEO of the Center of Reproductive Rights, hailed the defeat of the Personhood Amendment, saying in a press statement, “Outlawing medical services commonly used and relied upon by Americans in their personal lives runs completely counter to the U.S. Constitution, not to mention some of our most deeply held American political traditions and values.”

  • November 8, 2011
    Guest Post

    By Dan Tokaji, the Robert M. Duncan/Jones Day Designated Professor in Law, Ohio State University, Moritz College of Law. Tokaji is also a member of the ACS Board.


    On Tuesday, Ohio voters rejected Issue 2, a measure that would have sharply limited the collective bargaining rights of public-sector employees. The outcome of this measure is significant for workers’ rights. But its greatest importance lies in its significance for the balance of political power, not just in Ohio but across the country.

    Issue 2 was a ballot referendum asking voters for a thumbs-up or thumbs-down vote on SB 5, a statute passed by the state legislature and signed by Governor John Kasich.  At the start of his administration, Governor Kasich took a very aggressive posture, memorably warning people to “get on the bus, or we’re going to run you over.”

    SB 5 became the centerpiece of Governor Kasich’s first year in office.  The law was advertised as a way of cutting government expenses and creating a more business-friendly environment for private-sector employers.   It was supported by most Republicans and opposed by Democrats in the state legislature.

    Without getting too deeply into the details of this long and complex statute, suffice it to say that SB 5/Issue 2 would have significantly weakened public-sector labor unions – including those representing police officers, firefighters, teachers, and many other local and state employees.   Not surprisingly, this change engendered fierce opposition from organized labor. Opponents collected enough signatures to put the law to a vote of the people as the state constitution allows.  

    Unquestionably, the defeat of Issue 2 is a black eye for Governor Kasich. The consequences of Issue 2’s defeat, however, go well beyond Ohio’s borders. 

    To see why, it’s helpful to consider what would have happened if Issue 2 had succeeded.  The measure would have dealt a crippling blow to organized labor, drastically curtailing its political influence.  This is especially significant in our post -- Citizens United world, in which there are effectively no limits on corporate campaign expenditures.  In this world, the only counterbalancing force to corporate political influence – at least the only one with enough money to make a major impact – is organized labor.

  • November 8, 2011

    by Nicole Flatow

    Even Supreme Court Chief Justice John G. Roberts expressed concern about secret warrantless GPS tracking by police during oral argument in U.S. v. Jones today, SCOTUSblog’s Lyle Denniston reports.

    When Obama administration lawyer Michael R. Dreeben cited precedent upholding the use of a beeper to track a suspect in public places, Roberts responded, “That was 30 years ago. The technology is very different and you get a lot more information from the GPS surveillance than you do from following the beeper.”

    Justice Stephen Breyer warned that a win for the government in the case would allow 24-hour monitoring over the “public movement of every citizen” and Justice Ruth Bader Ginsburg worried that only a person’s home would be safe from intrusion, Reuters reports.

    In this case, federal officials placed a GPS tracking device on the bottom of Antoine Jones’ car using an invalid warrant, and tracked the car’s movements for 30 days. The GPS took snapshots of Jones’ movements every ten seconds, which were uploaded to a computer and searchable by police, explained O’Melveny & Myers Partner Walter Dellinger during the American Constitution Society Supreme Court Preview.

    The court has previously held that individuals do not have a reasonable expectation of privacy in a public thoroughfare such as a road, where someone could observe their actions. But at what point that reasoning breaks down is the question the justices considered today.

    “You may understand that your neighbor can observe you on a public street when you leave the house,” Dellinger explained during the Supreme Court Preview. “What you cannot expect is that your neighbor will attach a GPS device under your car and use a GPS device to track your every movement.”

    The lower court adopted this reasoning when it held that officials should have obtained a valid warrant, writing, “[w]hen it comes to privacy . . . the whole may be more revealing than the parts.”

    Even a government loss in this case will not preclude police use of GPS tracking, George Washington University law professor Daniel Solove points out in an ACSblog guest post.

    ”Applying the Fourth Amendment to GPS surveillance won’t mean stopping the government from engaging in it,” he writes. “It will just mean that law enforcement officials who engage in GPS surveillance will be subjected to judicial oversight and will be required to justify their need to engage in the surveillance before doing so. These requirements seem reasonable given the fact that GPS surveillance technology can track a person so pervasively.”

    Read Solove’s post here, and watch video of Dellinger’s discussion of the case below.

  • November 8, 2011

    by Jeremy Leaming

    A growing chorus of lawmakers and civil liberties groups is ratcheting up pressure for the federal government to respond to a slew of new, rigid state restrictions on voting.

    Today, leading House members announced they will conduct a forum on Nov. 14 to explore the possible ramifications the restrictions will have on forthcoming elections. House members scheduled to participate include House Judiciary Committee Ranking Member John Conyers (D-Mich.), House Democratic Whip Steny Hoyer (D-Md.), House Administration Committee Ranking Member Robert Brady (D-Pa.), House Judiciary Constitution Ranking Member Jerrold Nadler (D-N.Y.), and Rep. Keith Ellison (D-Minn.). See here for more information about the forum.

    Last week, Hoyer and Brady sent a letter signed by nearly 200 of their colleagues to state officials calling on them “to oppose new state measures adopted over the last year that would make it harder for eligible voters to register or vote.” Their action was preceded by Conyers (pictured) and Nadler urging the House Judiciary Committee to conduct hearings on the restrictive new measures.

    Brave New Foundation and the Advancement Project launched a project tagging the conservative group the American Legislative Exchange Council or ALEC with writing much of the new restrictions that have been implemented primarily by Republican controlled statehouses.

    The project includes a video, posted on both groups’ websites, which details the extent of the restrictive voting laws, and charges that Charles and David Koch, the billionaire brothers who have bankrolled Tea Party activities and efforts, such as the one in Wisconsin, to undercut workers’ rights, as also being involved in the movement attacking voting rights.

    “The Koch brothers are behind these laws because they want to cut off the participation of people who are not behind their corporate agenda,” Judith Brown Dianis, co-director of the Advancement Project said. 

    NAACP President and CEO Ben Jealous said, “We are in a moment right now where we are seeing the most aggressive attempt to roll back voting rights in this country that we’ve seen in over a century.”

  • November 8, 2011

    by Jeremy Leaming

    Turning aside a Religious Right group’s challenge to the Obama administration’s signature law, a “conservative-leaning” federal appeals court today upheld the constitutionality of an integral provision of the health care reform law.

    In a 103-page opinion, the U.S. Court of Appeals for the District of Columbia Circuit supported a lower district court’s opinion that found constitutional the law’s minimum coverage provision, which requires individuals, starting in 2014, to maintain health care coverage, or pay a penalty, called a “shared responsibility payment.” Specifically the district court held that the minimum coverage provision was a legitimate regulation of economic activity pursuant to the Commerce Clause and the Necessary and Proper Clause.

    ACS Board Chair Geoffrey R. Stone lauded today’s opinion, saying it represented yet another rejection of opponents’ cramped vision of the Constitution:

    “If those who challenge the constitutionality of the Affordable Care Act had their way, our federal government would be unable to tackle serious national problems,” Stone, the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School, said. “It is particularly noteworthy that today's opinion was written by Judge Laurence H. Silberman, one of the most respected conservative jurists in the nation. Judge Silberman, who was appointed to the bench by President Ronald Reagan and was awarded the national Medal of Freedom by President George W. Bush, flatly rejected the constitutional challenge, explaining that 'the right to be free from federal regulation . . . yields to the imperative that Congress be free to forge national solutions to national problems.'"

    Simon Lazarus, public policy counsel for the National Senior Citizens Law Center, told ACSblog, “There is no judge more respected in conservative legal and political circles than Laurence Silberman, and it is hard to imagine anything that could take more of the wind from the sails of ACA opponents than this terse, unequivocal ruling that their case against the ACA individual mandate has no ‘real support in either the text of the Constitution or Supreme Court precedent.’”

    Lazarus continued, “Especially coming in the wake of the Sixth Circuit Jeffrey Sutton’s similarly sweeping rejection of the opponents’ case, and in particular, coming virtually on the eve of the Supreme Court’s November 10 conference on whether to accept review of the pending ACA cases, the Court’s conservative bloc is facing strong recommendations to handle this case as judicial conservatives, not libertarian radicals or political activists.”

    Lazarus is author of two ACS Issue Briefs, one on the constitutionality of ACA’s minimum coverage provision, and the other addressing opponents’ arguments against the scope of the federal government’s power to regulate commerce.