Guest Post

  • July 25, 2014
    Guest Post

    by Justin Marceau and Alan K. Chen. Marceau is an associate professor at the University of Denver Sturm College of Law and a former public defender in Arizona. Chen is the William M. Beaney Memorial Research Chair and Professor of law at the University of Denver Sturm College of Law and a former staff attorney at the ACLU’s Chicago office.

    The State of Arizona’s recently botched execution of Joseph Wood is just the latest in a series of horrific events that have introduced the American public to a criminal justice problem that practitioners and legal scholars long have known about – lethal injections are an extremely troubling method for carrying out capital punishment.  Similar to the cases of Clayton Lockett in Oklahoma and Dennis McGuire in Ohio, Wood reportedly endured extensive suffering during the hour and 52 minutes it took for the drugs administered by the state’s executioners to end his life.

    The Wood Litigation Seeking Access to Information about the Drugs and Executioners

    In the days preceding Wood’s execution, his attorneys mounted an impressive campaign to overturn a lower court order denying him access to basic information about the qualifications (but not the identity) of the executioners and the source of the drugs to be used. Wood argued that he had a qualified First Amendment right of access to such information. 

    On Monday of this week, things looked promising for Wood and his legal team. An erudite panel of the Ninth Circuit concluded that it was not too much to ask of Arizona to require it to turn over the information Wood sought, or to delay the execution. Behind such litigation is the reality that without such information, of course, it would be impossible to assess whether the execution might violate the Eighth Amendment and create too great a risk of cruel and unusual punishment.  In other words, in order to know whether their client had a colorable substantive claim that the execution would be cruel and unusual, the lawyers first had to gain access to the details of the execution procedures. The procedural claim at issue in the Ninth Circuit, then, was a necessary precursor to being able to litigate the substantive legality of Arizona’s execution system.

    The Ninth Circuit panel voted 2-1 that Wood had raised a serious First Amendment claim and would suffer irreparable harm if an injunction against his execution were not granted. To be clear, all the Ninth Circuit ordered was that Arizona either turn over the information and proceed to execution as planned on Wednesday, or delay the execution until full and fair litigation regarding the right to access this information was conducted. Instead, Arizona successfully petitioned the Supreme Court, which quickly overturned the stay of execution.

    Was this Just a Gimmick to Delay Litigation?

    Some might ask why, with a thirty year track record and tacit Supreme Court approval in 2008, lawyers were inquiring about lethal injection methods.  We hear about delays in executions – we even see California’s death penalty held unconstitutional, in part, because of delay. But the reason for the litigation is clear: lethal injection is not working. 

    With drug shortages for the previous three-drug execution cocktail of choice, states have begun to experiment with the doses and types of drugs, and the qualifications of executioners are not getting any better.  In a very perverse turn on Justice Louis Brandeis’ famous quote that states may “serve as a laboratory, and try novel . . . experiments” that the rest of the country might not, states are innovating in their execution methods.  In the rush to continue with executions, Arizona and other states are using their execution chambers as laboratories for human experimentation.  What combination will create the most aesthetically pleasing execution for public consumption is the question the Departments of Correction seek to answer. 

  • July 24, 2014
    Guest Post

    by Franita Tolson, Betty T. Ferguson Professor of Voting Rights, Florida State University College of Law; Faculty Advisor, Florida State University College of Law ACS Student Chapter

    The Civil Rights Act of 1964 is a landmark piece of legislation, responsible for eradicating much of the discrimination that racial minorities confronted in places of public accommodation such as hotels, restaurants and movie theatres; in seeking employment and applying for public benefits and in attending integrated public schools. Among its many accomplishments, the Act also laid the groundwork for nondiscriminatory access to the ballot. In particular, Title I of the Act provides that, “All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, etc. … shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude ....” Despite a promising start, this provision quickly fell into relative obscurity because the Voting Rights Act of 1965, passed a little over a year after Title I, imposed more stringent restrictions on racial discrimination in voting.

    Recent cases illustrate that the time has come to revisit Title I of the Civil Rights Act.  In Shelby County v. Holder, the Supreme Court invalidated section 4(b) of the Voting Rights Act which, together with section 5, required certain jurisdictions to preclear all changes to their electoral laws with the federal government before the changes could go into effect. The preclearance regime was a type of federal receivership for jurisdictions, mostly in the south, that had pervasively discriminated against African Americans in order to ensure that any new laws would not undermine minority voting rights. In the year since Shelby County, the loss of the preclearance regime has forced advocates to be more aggressive in using creative legal arguments in voting rights litigation. For example, in Frank v. Walker, a federal district court judge invalidated Wisconsin’s voter identification law, the first successful challenge to these restrictions using section 2 of the Voting Rights Act. Section 2 prohibits states from abridging the right to vote on the basis of race and applies nationwide.

    Like section 2, Title I of the Civil Rights Act stands as a possible litigation alternative to the preclearance provisions of the Voting Rights Act. In addition to its general requirement of nondiscriminatory access to the ballot, section 2(A) of Title I provides that, “No person acting under color of law shall in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such law or laws to other individuals within the same county, parish, or similar political subdivision who have been found by State officials to be qualified to vote.” This provision prevents states from applying voter qualification standards differently to similarly situated individuals. 

  • July 24, 2014
    Guest Post

    by Abbe Gluck, Professor of Law, Yale Law School

    *This piece originally appeared at Balkinzation

    I had hoped to take a day off blogging about Halbig and King (the ObamaCare Subsidies cases), but I cannot allow another inaccurate narrative about ObamaCare to take hold. Over at Volokh, my friend Ilya Somin argues that the holding in Halbig is not absurd because Congress uses statutory schemes all the time that try to incentivize states to administer federal law (and to penalize them if they don't). It is true we see schemes like that all the time -- Medicaid is a prime example -- but the insurance exchange design is NOT one of them. This federalism argument was made before the D.C. Circuit and even Judge Griffith didn't buy it in his ruling for the challengers. I tried to dispel this myth back in March, when I wrote the following on Balkinization:

    “This is not a conditional spending program analogous to Medicaid.”
        
    The challengers' strategy in this round has been to contend that the subsidies are part of an overarching ACA "carrots and sticks" strategy to lure states into health reform and penalize them if they decline. On that version of the story, it might make sense that subsidies would be unavailable in states that do not run their own exchanges. In their view, the subsidies are therefore exactly like the ACA’s Medicaid provision (from appellants’ brief: “The ACA’s subsidy provision offered an analogous ‘deal’ to entice states to establish Exchanges – because Congress (wisely, in hindsight) knew it had to offer huge incentives for the states to assume responsibility for that logistically nightmarish and politically toxic task.”) 

    Putting aside the fact that no one thought the states wouldn’t want to run the exchanges themselves (indeed, Senators were demanding that option for their states), the exchange provisions simply do not work in the same way as Medicaid. Unlike the ACA’s Medicaid provisions, the exchange provisions have a federal fallback: Medicaid is use-it-or-lose-it; the exchanges are do-it, or the feds step in and do it for you. In other words, this isn’t Medicaid; it’s the Clean Air Act (CAA). If a state decides not to create its own implementation plan under the CAA, its citizens do not lose the benefit of the federal program -- the feds run it. The same goes for the ACA’s exchanges and so it would be nonsensical to deprive citizens in federal-exchange states of the subsidies. More importantly, if we are going to compare apples to oranges, the ACA’s Medicaid provisions have an explicit provision stating that if the state declines to participate, it loses the program funds (this was the provision at issue in NFIB v. Sebelius in 2012). The ACA’s subsidy provisions, in contrast, have no such provision, strong evidence that the subsidies were was not intended to be forfeited if the states did not participate. If the challengers are going to insist on strict textual arguments, this is exclusio unius 101: the rule of interpretation that provides that where Congress includes a specific provision in one part of the statute but does not include an analogous provision elsewhere, that omission is assumed intentional."
     
                                                                                                                   * * *

    It may be true that the ACA’s politics have created a landscape no one ever predicted – one in which federalism-focused states, whose congressional representatives were demanding the states’ rights to establish exchanges instead of the federal government – have decided that politics is more important than federalism and opted out. But what’s happened in hindsight doesn’t change what happened when the statute was enacted and how the statute is actually designed. What happened when the statute was designed was that no one thought the states needed a carrot to do this and the statute was never designed as a "use or lose it" incentive, like Medicaid.

  • July 23, 2014
    Guest Post

    by Timothy S. Jost, the Robert L. Willett Professor of Law, Washington and Lee University School of Law

    July 23, 2014 was a momentous day in the history of the Affordable Care Act. Shortly after 10 a.m., a three-judge panel of the District of Columbia Court of Appeals issued a split 2-1 decision striking down an Internal Revenue Service rule that permits federally facilitated exchanges to issue premium tax credits.  Two hours later, the Fourth Circuit Court of Appeals in Richmond released a unanimous decision upholding the IRS rule.

    The ACA authorizes the IRS to issue premium tax credits to uninsured lower and moderate income Americans through exchanges.  The ACA requests that the states establish exchanges, and sixteen states have done so.  The ACA also, however, authorizes the federal government to establish fallback exchanges in states that fail to set up their own exchanges, and it has done so in 34 states.  The IRS regulation allows premium tax credits to be awarded to eligible individuals by both state-operated exchanges and federally facilitated exchanges.

    Two subsections of the ACA, however, seem to provide that tax credits are available for months in which an individual is enrolled in a qualified health plan “through an Exchange established by the State under 1311” of the ACA. The plaintiffs argue that federal exchanges cannot issue premium tax credits tax credits to individuals who enroll through federal, as opposed to state-operated exchanges.

    The majority of the D.C. Circuit ruled for the plaintiffs, focusing narrowly on the “established by the State” language, but finding nothing in the ACA to clearly contradict the plaintiffs’ reading of the law. The Fourth Circuit found the law ambiguous, and thus under the Supreme Court’s Chevron rule, deferred to the IRS and its interpretation of the law.

  • July 23, 2014
    Guest Post

    by Nicole Huberfeld, H. Wendell Cherry Professor of Law, University of Kentucky College of Law

    The U.S. Court of Appeals for the D.C. Circuit held in Halbig v. Burwell that the IRS cannot provide tax credits to individuals who purchase private health insurance in states with federally-run insurance exchanges, potentially depriving millions of middle and low income Americans access to affordable health insurance. Improbably, while the blogosphere lit up, the U.S. Court of Appeals for the Fourth Circuit held in King v. Burwell that the IRS properly interpreted the Affordable Care Act (ACA) to provide tax credits in all exchanges whether run by a state or the federal government. Members of the Obama Administration immediately declared they will seek rehearing by the D.C. Circuit en banc. The standard of review for petitions for rehearing is rigorous, but given the importance of the case, and the new circuit split, rehearing is conceivable. Further, it is not unreasonable to anticipate that the Supreme Court ultimately will grant a petition for certiorari in either or both of these cases. If it is upheld, Halbig could be the most damaging decision in the ACA litigation wars yet. For those not mired in the details of the ACA and its ongoing legal challenges, here’s why.

    The ACA attempts to create near-universal insurance coverage by making Americans insurable and by commanding insurers to play by uniform rules. The ACA was created because, in 2008, one in five Americans did not have health insurance coverage. To make this number tangible, imagine everyone you know with blue eyes … and now imagine they do not have health insurance. That’s how many were uncovered, and the lack of coverage was just about that random too. In the United States, if you don’t have health insurance, you don’t have access to consistent healthcare. The ACA has clear goals, but it is a muddy scrum of legislative drafting that never underwent a conference committee process, and that imprecision has facilitated the litigation in these cases.

    To avoid adverse selection (the problem of free riding), the ACA requires Americans to carry minimum essential coverage or face a tax penalty (upheld in NFIB v. Sebelius); however, if insurance premiums would cost more than 8% of an individual’s income, then no tax penalty will be assessed. To facilitate health insurance coverage, the ACA created health insurance exchanges, also called marketplaces, where individuals and small groups can purchase health insurance that provides standardized benefits without exclusions for preexisting conditions and other disequalizing prohibitions. People who earn 100-400% of the federal poverty level are eligible for federal tax credits that assist in paying premiums for private insurance on the exchanges (“premium assistance tax credits,” codified at 26 U.S.C. § 36B), increasing substantially the number of people who can afford to purchase private health insurance.