Guest Post

  • May 27, 2016
    Guest Post

    by Arusha Gordon, Associate Counsel, Legal Mobilization Project, Lawyers’ Committee  for Civil Rights Under Law

    On Monday, the Supreme Court issued a unanimous decision in Wittman v. Personhuballah, No. 14-1504.  The case involves Virginia’s Third Congressional District, which the Virginia State Legislature drew in the wake of the 2010 census. In drawing and then approving the challenged map, the Virginia legislature chose to increase the Black Voting Age Population (BVAP) of Virginia’s only majority-minority congressional district (Congressional District 3) from 53.1 percent to 56.3 percent, rather than creating two congressional districts with significant percentages of African-American voters. Currently, Representative Bobby Scott, from the Third Congressional District, is Virginia’s only African-American representative in Congress.

    Plaintiffs – three Virginia voters – sued the Commonwealth of Virginia, challenging the 2010 redistricting plan as a racial gerrymander in violation of the Equal Protection Clause of the United States Constitution. A three-judge panel of the District Court of Virginia found that, in violation of the constitution, racial considerations were the Legislature’s predominant concerns in drawing the district and it was not necessary to draw the challenged plan to achieve a compelling governmental interest. In January, 2016, the District Court approved a remedial plan for redistricting.

    Although the Commonwealth elected not to appeal the District Court’s decision, members of Virginia’s Congressional delegation chose to intervene and then appeal. In addition to raising questions regarding the merits of the case and whether the redistricting plan was constitutional, the appeal also raised questions regarding when a party has standing to intervene. 

  • May 23, 2016
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law- University Park.

    On May 19, 2016, Judge Andrew Hanen issued an unusual 28-page order scolding the Department of Justice for making statements that in the view of Judge Hanen were misleading. The order alleges that Department of Justice attorneys deceived the court about its activity surrounding two deferred action programs announced by President Obama on Nov. 20, 2014. Deferred action is one form of prosecutorial discretion in immigration law that temporarily protects the government’s lowest priorities from deportation. The 2014 deferred action programs would modify the 2012 Deferred Action for Childhood Arrivals (DACA) program and establish a similar program known as Deferred Action for Parents of Americans and Lawful Permanent Residents for qualifying parents who lack a formal legal status. The allegation by Judge Hanen is that the government erroneously granted DACA renewal applications for three years pursuant to the 2014 Directive (DACA +) as opposed to the two-year period contemplated under 2012 DACA.

    Much of the press coverage on Judge Hanen’s May 19 order has focused on the order’s scolding. But equally, if not more alarming, are the implications of Judge Hanen’s demand on the Department of Justice to provide a list of individuals granted DACA under the 2014 directive. According to the order: “This list should include all personal identifiers and locators names, addresses, “A” file numbers and all available contact information, together with the date the three-year renewal of approval was granted.” If the order has a legal effect, unleashing a list of names and A-numbers raises privacy concerns and has the potential to instill greater fear in a community that is already vulnerable to the delay caused by the Texas litigation and announcements by the government to use raids as a tool to detain and deport adults and children who purportedly fall within its enforcement priorities. Judge Hanen has also ordered “any attorney employed at the Justice Department in D.C. who appears, or seeks to appear in a court (state of federal) in any of the 26 Plaintiff states annually attend a legal ethics course”, believing himself that Justice attorneys have failed to comply with their ethical duties during the course of the Texas litigation.

    A real conversation about the ethics of the Texas litigation should cover the distortions made by the Plaintiff states and lower courts around the history and legal foundation to implement the 2014 deferred action programs. The 123-page opinion issued by the district court on Feb. 16, 2015 and authored by Judge Hanen contained misrepresentations about immigration law and policy, some of which were memorialized in a letter signed by 104 scholars and teachers of immigration law who identified the opinion as “deeply flawed.” As one example, the letter criticizes the district court’s characterization of deferred action as lacking statutory authority and beyond the scope of prosecutorial discretion – despite the ample authority held by the Department of Homeland Security to operate a deferred action program. Subsequent to the district court opinion, oral arguments were heard by a three-judge panel at the Fifth Circuit Court of Appeals and again displayed great confusion around the terms lawful presence, deferred action, and employment authorization to name a few. As I described earlier:

  • May 23, 2016
    Guest Post

    by Madeline Gomez and Julia Quinn. Ms. Gomez is the LSRJ Reproductive Justice Fellow at the National Latina Institute for Reproductive Health. Ms. Quinn is the LSRJ Reproductive Justice Fellow at the National Health Law Program.                

    “Women have their own equal dignity.”

    So said Justice Anthony Kennedy last year in Obergefell v. Hodges, the Supreme Court decision that codified marriage equality. This pronouncement was part of a broad majority ruling that opined on personal decision-making in moving, sometimes even flowery prose. Yet this week, the Court declined to take the opportunity to affirm that women’s dignity includes the right to access contraceptive coverage regardless of their employer’s religious beliefs. Instead, in their Zubik v. Burwell per curiam opinion, the justices sent the case back to the lower courts for further review. Some have speculated that Justice Kennedy’s reluctance to side with employees motivated this procedural move. It was disappointing to those hoping the Obergefell decision signaled an understanding on the Justice’s part of the importance of self-determination to equality, including for women. But all hope is not yet lost. In the abortion rights case Whole Woman’s Health v. Hellerstedt, the Court’s “swing” voter has a second chance to prove that women’s dignity has power beyond rhetorical flourish.

    Kennedy’s majority opinion in Obergefell relied on what Harvard Law professor Laurence Tribe called “a tightly wound . . . double helix” of two principles rooted in the Fourteenth Amendment: Equal Protection and Due Process. Relying on Kennedy’s own words, Professor Tribe dubbed the doctrine “equal dignity.” Kenji Yoshino of NYU School of Law called it an “antisubordination liberty” because, he argued, the analysis looks to the impact that denying the liberty in question has on the relevant subordinated group. Thus, the Constitution demands the recognition and extension of the marriage right to same-sex couples not only for equality reasons, but also because doing so redresses some of the discrimination experienced by lesbian women and gay men.

    Obergefell’s reliance upon dignity as a fundamental constitutional principle related to questions of intimacy and equality was not novel. Nearly 25 years ago it was at the heart of Planned Parenthood v. Casey, a decision authored in part by Justice Kennedy. There, using language Obergefell would later echo, the Court declared personal dignity and autonomy “central” to constitutional conceptions of liberty ‒ including reproductive rights.

  • May 20, 2016
    Guest Post

    by Herman N. (Rusty) Johnson, Jr., Associate Professor of Law, Samford University Cumberland School of Law

    May 18, 2016, is a momentous day for U.S. workers. The U.S. Department of Labor released new overtime rules that restore the New Deal-era promise of the Fair Labor Standards Act (FLSA) by increasing the salary level required to exempt certain employees from overtime pay. The new rules will be a boon for working and middle class Americans, as it will increase their pay, provide them more time to spend with their families, lead to improvements in health and productivity, and create jobs.

    The FLSA, originally enacted in 1938, assures overtime premium pay of time-and-a-half for employees who work more than 40 hours per week. However, the FLSA exempts some types of employees from the overtime protection, in particular white collar workers classified as executive, administrative, professional, outside sales, and computer employees. Congress delegated authority to the Secretary of Labor to define the exemptions, and generally, employers must satisfy three requirements to properly classify employees as exempt pursuant to a white collar category: 1) the employees must be paid a fixed salary, 2) the employees must be paid at least a specific salary amount, and 3) the employees’ primary duties must involve one of the enumerated exemptions.

    Currently, the DOL’s regulations set the salary level at $455 per week, which is $23,660 on an annual basis. The rigors of inflation and inattention have eroded the FLSA’s overtime protection at this level. The designated amount is less than the poverty line for a family of four and only 1.6 times the federal minimum wage of $7.25. Furthermore, at present, a mere seven percent of salaried workers receive overtime protection, whereas 62 percent did so in 1975.

    The new DOL regulations increase the salary level required to trigger the white collar exemptions. The revised rule, which takes effect December 1 of this year, sets the salary level at $913 per week, or $47,476 annually, which equates to the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census region (currently the South). The new rule also creates an updating mechanism which benchmarks the salary level every three years to the same metric.

  • May 19, 2016
    Guest Post

    by Margo Schlanger, Henry M. Butzel Professor of Law, University of Michigan Law School

    Consensus for criminal justice and prison conditions reform has been building, and one key urgent area of reform is to reduce our current overuse of solitary confinement. In my new ACS Issue Brief, “How the ADA Regulates and Restricts Solitary Confinement for People with Mental Disabilities,” I argue that the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act provide tools to challenge solitary confinement of individuals with mental disabilities.

    American incarceration rates ballooned in the 1980s and 1990s—and so too did our prisons’ and jails’ use of solitary confinement and other forms of restrictive housing. Right now, in federal, state, and local jails and prisons, an estimated 90,000 to 115,000 prisoners are housed in solitary confinement. They are locked into their cells, about the size of a parking space, for 22 or more hours a day. Their access to programming, reading materials, visitation, exercise, and other “privileges” is extremely limited.

    Change may finally be coming. In 2015, Justice Kennedy noted in a concurring opinion that “[t]here are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confinement in particular.” Research confirms that “Years on end of near-total isolation exact a terrible price.” Shortly after that, President Obama decried the overuse of solitary confinement; he has since required significant federal reform, including many measures to help keep prisoners with mental disabilities out of solitary.

    Nonetheless, people with mental disabilities are vastly overrepresented in solitary. Sometimes this is because of pure discrimination; other times, because failure to appropriately treat or manage prisoners with mental disabilities leads to their prison misconduct. Once in solitary confinement, isolation frequently exacerbates mental disability, causing a feedback loop of difficult behavior and lengthening terms of isolation.