February 2012

  • February 27, 2012

    by Jeremy Leaming

    The slew of states challenging the constitutionality of the Affordable Care Act’s expansion of Medicaid to cover more of the nation’s poorest, has failed to articulate why the U.S. Supreme Court should invalidate Congress’s expansion of the popular program, SEIU and other labor groups assert in a recently filed friend-of-the-court brief.

    Plenty of attention has been given to the landmark health care reform law’s minimum coverage provision. That provision requires Americans, who can afford to do so, to purchase a minimum amount of health care insurance starting in 2014 or pay a penalty on their income tax returns. Indeed this recent panel sponsored by SCOTUSblog and BloombergLaw focused almost entirely on the legal challenge to the minimum coverage provision, which in all fairness is the law’s integral provision.

    But the amicus brief in Florida v. U.S. Department of Health and Human Services filed by SEIU and Change to Win, a federation of four labor unions, argues that if the challengers’ argument were adopted by the court it would greatly limit the ability of the Congress to tax and spend for the general welfare. (SEIU is the country’s largest healthcare union, and the unions that make up Change to Win represent more than 5 million workers.)

    The labor groups assert that the states challenging the expansion of Medicaid are not questioning the constitutionality of Medicaid, but are trying to scuttle lawmakers’ expansion of the popular program. The challengers, the labor groups argue, claim that they are being unconstitutionally coerced into offering the expanded Medicaid program (primarily because Medicaid is so popular that the states could not opt-out of offering it), but fail “to identify some constitutionally relevant and judicially manageable distinction between the pre-existing federal spending program and the expanded program they challenge.”

    The states’ challenge to the expansion of Medicaid, which is also important to the law’s goal of providing more health care insurance to the tens of millions of uninsured, is aimed directly at “Congress’ power to spend federal money on those programs (and only those programs) that Congress deem worthy of support,” the labor groups’ brief states.

  • February 24, 2012
    Just before the Senate went into its Presidents Day recess, Majority Leader Harry Reid (D-Nev.) announced that the chamber would take up the confirmation vote for Margo Kitsy Brodie to the U.S. District Court for the Eastern District of New York when they returned this coming Monday. The Senate Judiciary Committee unanimously approved her confirmation in October. Monday will mark the 265th day since her nominations.
     
    Before leaving the floor, Reid lamented the Republican obstruction of judicial nominations. Reid assured the Senate that the coming work period would focus on judges and continued, “We will have the fight on the judges ourselves because they are recommendations we make to the President. But these are the President's nominations and he should have the right to have these people working in his administration.” There are currently 21 confirmations waiting for a floor vote, 16 of which received unanimous committee support.
     
  • February 24, 2012
    Guest Post

    By Emily Martin, vice president and general counsel at the National Women’s Law Center. This commentary is cross-posted at NWLC's blog. 


    On Tuesday, the Supreme Court agreed to hear Fisher v. University of Texas at Austin, a challenge to the affirmative action plan used by the University of Texas at Austin. Currently, the university allocates over 80 percent of its slots to students who graduate in the top ten percent of their public high school. For the final 20 percent, the university considers many factors, including grades, a personal essay, character, special talents, socio-economic circumstances, and race. As the Fifth Circuit Court of Appeals held last year in upholding the constitutionality of the plan, UT-Austin carefully crafted its plan to comply with the Supreme Court’s 2003 ruling in Grutter v. Bollinger, which held that consideration of race in public university admissions could properly forward the compelling interest in diversity in education.

    One of the great promises of public education, at every level, is its potential to create a student body drawn from a wide variety of backgrounds and perspectives, enhancing the educational experience of all students. As the Supreme Court recognized in Grutter, “Numerous studies show that student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.”

    Racial diversity within schools breaks down stereotypes that feed and perpetuate inequality. This is particularly important for women because many of the most poisonous racial stereotypes are also gender stereotypes — for example, that black women are promiscuous, that Asian women are subservient, or that Latina women are domestics. Membership within a diverse student body challenges gender stereotypes that harm women (and men) of color: when a student’s classrooms are full of numerous exceptions to every stereotypical rule, the rules lose their power to define people for that student. Moreover, racial diversity may also help break down gender stereotypes more broadly. Studies indicate that diverse schools encourage students to reject stereotypes in general, and to view individuals as individuals, rather than as representatives of particular group characteristics.

  • February 24, 2012
    Guest Post

    By Inimai Chettiar, the Policy Counsel at the American Civil Liberties Union, where she serves as national legislative counsel to end mass incarceration in states across the country. This piece is cross-posted at the ACLU’s Blog of Rights, as part of its celebration of Black History Month.


    I spent this past New Year's Eve lying on the floor of a New England police station. Just hours before, I was enjoying sushi with my best friend Jamal; excitedly discussing his possible political appointment and promising career.

    On our way home, we were pulled over for driving 37 mph in a 25 mph zone. Jamal was directed to perform a sobriety test although he was clearly not drunk and had explained that a back injury and current spasms would affect his performance. I got out of the car to speak with Jamal, but an officer whipped out his Taser and screamed at me to get back inside. While I tried to explain to him that I wanted to speak to Jamal as his attorney, Jamal declined a breathalyzer test because he didn't believe there was cause for an arrest. Apparently, declining the breathalyzer results in a mandatory arrest, incarceration, and a one year driver's license suspension, but cops aren't required to notify drivers of these consequences. Jamal was handcuffed and thrown into the back of the police car.

    Happy New Year: My best friend was now a statistic, part of the 1 in 3 Black menwho have been behind bars in this country. During the 12 hours I waited at the jail for Jamal's arraignment, I thought about how he felt locked in a cell the size of my Manhattan bathroom and about the 2.3 million people in similar cells across the country at that very moment.

  • February 23, 2012

    by Jeremy Leaming

    Maryland lawmakers late today voted to join seven other states and the District of Columbia in legalizing same-sex marriage. The marriage equality measure, sponsored by Gov. Martin O’Malley (D), will now likely face voters, since religious rights special interests in the state have promised to work to drag the measure, the Civil Marriage Protection Act, before voters this fall.

    One of the Senate’s leaders said the bill would end discrimination against same-sex couples and their families, and that it would not impact straight marriages. He said it was time to end state-sanctioned discrimination and allow gays and lesbians to wed. Another senator noted that this was not the first time the General Assembly had altered the civil right of marriage, noting that in the late 1960s it invalidated a ban on interracial marriage.

    Following debate, which included many allusions to religion and “traditional” marriage, the Md. Senate passed the bill by a vote of 25 – 22. With the promise of O’Malley’s signature, likely to happen tomorrow, Maryland will become the eighth state to legalize same-sex marriage. The District of Columbia also recognizes same-sex marriage.  Like marriage equality laws in New York and Washington, the Maryland measure includes an exemption for houses of worship, meaning they will not be under a legal obligation to perform same-sex marriages or allow their facilities to be used for the marriages.

    In an interview yesterday with one of the nation’s best gay reporters, Michelangelo Signorile, O’Malley (pictured) said he is confident a consensus has emerged in support of marriage equality. “There’s been an evolution in the broadest sense among the people of our state,” O’Malley said. He added that “people have come to realize that the way forward, among people of many different faiths, is always through the greater and broader respect for equal rights for all.”

    UCLA law school professor Adam Winkler examines another major win for marriage equality in a piece for The Huffington Post. Winkler notes that earlier this week a federal judge appointed by President George W. Bush ruled that the so-called Defense of Marriage Act (DOMA) is unconstitutional.