• January 7, 2013

    by Jeremy Leaming

    It can be difficult to follow with great interest the machinations in the nation’s capital, especially with divisive, often ridiculous debates that unfold and then are taken to a whole new level by loud pundits dominating airwaves. But when cynicism sets in, as it has within parts of my family, there’s almost no room for serious, calm conversation about policy that is actually being advanced in the confines of the beltway.

    Over the winter break I had the great fortune of seeing three of my brothers, two of whom I rarely get to see anymore. One brother, who has veered from libertarianism to socialism, has written off the entire political process. President Obama is a tool of Wall Street, it would not have mattered had Mitt Romney won the White House, they both represent the same interests, he would say. He scoffed at the Affordable Care Act – no public option, no expansion of health care to the needy – and at the extension of unemployment benefits that has occurred under the Obama administration’s watch. In my brother’s mind the entire system was bought by big corporations a long time ago and they pull all the strings of both major political parties. But I wasn’t all that surprised – he’s been regurgitating the late comedian George Carlin’s stinging, though simplistic, lines about a broken American government for many years now.

    The reality is that the American political process is messy, incredibly divisive and often terribly exhaustive and inadequate. But the constant carping about how bad politicians are is also tiring and irrelevant. When hasn’t our democracy been a messy, maddening affair? Sure there have been respites, but they often don’t last long. It’s a fairly large country, and regardless of Carlin’s jabs, we do and have had some remarkable politicians and heroic leaders for equality and civil rights.

    And regarding the Obama administration’s first term, a little research would reveal that it is wildly over-the-top to blast it as a tool of big business. As The American Prospect’s Jamelle Bouie notes, Obama’s first two years in office “are a good case study of what happens when Democrats have control of the federal government – they try to expand it. In those two years, Democrats greatly expanded the welfare state with a new, quasi-universal health-care program, funneled hundreds of billions of dollars to infrastructure and clean energy research, and implemented a host of new financial regulations. There’s a reason Time correspondent Michael Grunwald called his book on the stimulus The New New Deal – in both size and scope, the activity of Obama and the 111th Congress resembled that of FDR’s first term.”

  • December 4, 2012

    by Jeremy Leaming

    When the Supreme Court announced in fall 2011 that it would review the constitutionality of the landmark health care reform law, civil rights groups and constitutional experts tried to highlight the lawsuits' threat to  the expansion of Medicaid coverage -- and what it would mean if the Supreme Court adopted the states' arguements against the expansion. If the high court were to decide that Congress had overstepped its spending power by penalizing states for not joining in the expansion of Medicaid it could have a potentially profound impact on other progressive laws, such as the Title VI of the Civil Rights Act and Title IX of the Education Amendments of 1972.

    Writing for Slate, Simon Lazarus and Dahlia Lithwick warned that if the high court were to side with the states’ argument against the Affordable Care Act’s expansion of Medicaid (the states argued that they were being unconstitutionally coerced into expanding Medicaid) then other programs run by the states with federal dollars could be in jeopardy. The ACA sought to expand Medicaid coverage to adults below 133 percent of the Federal Poverty Line. In a 2011 ACS Issue Brief, Lazarus, senior counsel at the Constitutional Accountability Center, described the states’ arguments against the Medicaid expansion as proposing “a radical upheaval in applicable constitutional law.”

    But the National Women’s Law Center’s Emily J. Martin in an ACS Issue Brief released today argues that the majority’s spending clause analysis from the high court’s ACA opinion from late June does not pose a danger to the major federal law aimed at stopping discrimination against women – Title IX.

    Title IX, in part, states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ….”

    Martin, vice president and general counsel at NWLC, provides great detail on why the Roberts Court’s spending clause analysis would not undermine the antidiscrimination law and also notes that even if Title IX were vulnerable to a spending clause challenge based on the ACA decision, it would still survive because it is an appropriate means for Congress to enforce the Fourteenth Amendment’s equal protection clause.

  • October 31, 2012
    Guest Post

    By Frederick Mark Gedicks, Guy Anderson Chair & Professor of Law, Brigham Young University Law School

    Fr. Robert Araujo, Professor of Law at Loyola University Chicago, and Richard Garnett, Professor of Law & Political Science at the University of Notre Dame, have posted critical reactions on Mirror of Justice to my ACS Issue Brief, “With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate.”

    Many of Fr. Araujo’s questions are answered in the Issue Brief, but one comment deserves a direct response. He suggests that I have elevated statutory and regulatory claims to no-cost contraception under the Affordable Care Act over more fundamental constitutional claims under the Free Exercise Clause, which he believes is violated by the mandate. One hears this free exercise rhetoric frequently from mandate opponents, but it misreads constitutional history and misunderstands the content of free exercise rights.

    The Free Exercise Clause does not protect a right of believers to be excused or exempted from complying with laws that generally apply to the rest of society, even when such laws burden their religious exercise. The Supreme Court has rarely recognized rights to free exercise exemptions, and then only in a few instances between the early 1960s and the late 1980s. The Court decisively rejected a general right to free-exercise exemptions in Employment Division v. Smith (1990), which it has repeatedly affirmed in the years since, most recently in Christian Legal Society v. Martinez (2010).

  • July 16, 2012

    by Jeremy Leaming

    Although it can be argued that the state governors threatening to forgo implementing the Affordable Care Act’s expansion of Medicaid have a skewed idea of state sovereignty, likely closer to the truth is that most of the governors are carrying on a tawdry tradition of denying help to the most vulnerable.

    S.C. Gov. Nikki Haley, Fla. Gov. Rick Scott, La. Gov. Bobby Jindal and Texas Gov. Rick Perry have all vowed that their states will not expand their Medicaid programs to millions of uninsured, even though pursuant to the ACA the federal government will cover most of the costs of implementing the expansion. The New York Times reports that the expansion of Medicaid would add “17 million people to the rolls, accounting for half of all uninsured people expected to gain coverage nationwide.”

    All those governors have offered typical, but disingenuous complaints that the federal government is forcing the states to spend money they don’t have. They also predictably paint the federal government as pushing wasteful domestic programs or offering more free things to people.

    It is the same tired, offensive and often racially tinged complaint that conservative politicians have been peddling for decades in their nonstop attack on government.

    Gov. Scott called the ACA’s Medicaid provision “a massive entitlement expansion,” and Gov. Rick Perry (pictured) who presides over a state with the largest number of uninsured said the Affordable Care Act “would make Texas “a mere appendage of the federal government.”

    University of Maryland School of Law professor Sherrilyn Ifill in an opinion piece for CNN said the governors are carrying on a long tradition of not doing a terribly good job of governing.

    “These elected leaders are following a longstanding tradition in American politics of Southern states acting against the best interest of their residents,” she writes.

  • July 11, 2012

    by Jeremy Leaming

    The right continues to wage a tiresome campaign against even modest efforts to repair the nation’s tattered social safety net.

    Although only symbolic, since it won’t go anywhere in the Senate, the House of Representatives passed a measure to repeal the landmark health care reform law, the Affordable Care Act (ACA).  

    It was not the first time the House has voted on such a measure. In fact the chamber has voted more than 30 times to repeal the ACA. The right-wing controlled House wants to remind everyone that it cares little about the tens of millions of uninsured Americans.

    House Democratic Whip Steny H. Hoyer (D-Md.) took to the floor during today’s vote to blast the House leadership’s continued obsession with destroying health care reform.

    “If this bill were to pass, insurance companies could once again discriminate against 17 million children with pre-existing conditions. If it were to pass, 30 million Americans would lose their health insurance coverage. It would take away $651 each from 5.3 million seniors in the Medicare ‘donut hole,’ making their prescription drugs more expensive,” Hoyer (pictured) said.

    He also noted that “6.6 million young adults under 26 would be forced off their parents’ plans, left to face a tough job market with the added pressure of being uninsured.”

    All of the Republican’s repeal bills, as Hoyer highlighted, contained no measures to help the uninsured.