Guest Post

  • 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. 

  • July 23, 2014
    Guest Post

    by Veronica JoiceFried Frank Fellow, NAACP Legal Defense and Educational Fund

    *This piece was originally published at NAACP Legal Defense and Educational Fund.

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    Veronica Joice wrote a special introduction for ACSBlog:

    This year, we honor the 50th anniversary of the passage of the Civil Rights Act of 1964.  As we take time to recognize the work that went into getting the Act passed, and the important precedents set by the NAACP Legal Defense and Educational Fund, Inc. (LDF) and others who litigated Title VII cases in the years immediately following the Act’s passage, we also must look to the future, and recognize the continuing need for Title VII litigation to challenge a plethora of discriminatory employment practices.

    Title VII, one of the key components of the Civil Rights Act, outlawed employment discrimination for nearly all employers and created the Equal Employment Opportunity Commission (EEOC).  Today, unfortunately, Title VII is just as important a tool for combatting discrimination as it was 50 years ago.  Many black employees continue to face explicit race- and color-based discrimination, as in the case of Nicole Cogdell, a top-performing manager at a national retail chain who was fired after company executives expressed concern that, as an African American, Nicole did not fit the company’s “brand image.”  In other cases, African Americans never even have the opportunity to become managers at their jobs—the EEOC African American Workgroup, created in 2010, found that African-American employees were less likely to be offered supervisory opportunities than white males, which hindered their ability to later receive promotions to management-level positions.  And, perhaps most tellingly, the unemployment rate for African Americans is consistently no less than double that of whites—10.7 percent and 4.9 percent, respectively, as of June 2014.

    These examples leave no doubt that, from cases involving blatant racism to those where seemingly neutral policies effectively close many African Americans out of the job market, racial discrimination persists in the workplace today.  For every case like Nicole Cogdell’s, there are hundreds, if not thousands, of others who are excluded from employment opportunities due to poor performance on a test that has no bearing on the applicant’s ability to perform the required work or by an employer’s review of credit history before making a job offer. LDF helped set the precedent that states that such facially neutral policies are discriminatory and unlawful if they disproportionately exclude African American job applicants. Today, LDF continues to challenge both overt and hidden forms of discrimination, including recently testifying in support of legislation to limit the use of credit checks in hiring. During this year of reflection, we must remember that Title VII’s work is not done—employment discrimination lives on, and there are still precedents to be set.

  • July 22, 2014
    Guest Post

    by Arthur Bryant, Chairman, Public Justice

    *This post is cross-posted and was originally published at Public Justice's blog.

    Corporate America loves to trash trial lawyers because trial lawyers hold them accountable – when they break the law, cheat people, sell defective products, discriminate, mistreat workers, poison the water and air or maximize profit over safety and lives. We celebrate the work they do to make our country more just. This year’s finalists for Public Justice’s Trial Lawyer of the Year Award are the latest examples. The Award honors the verdict or settlement that made the biggest contribution to the public interest in the past year.

    Bookout v. Toyota

    When thousands of Toyota Camrys were suddenly accelerating, the company blamed floor mats, bad drivers, and sticky pedals. But the real problem was Toyota’s conduct: the Camry’s electronic throttle system was poorly designed and did not conform to industry standards. When Jean Bookout’s Camry suddenly accelerated in September 2007 and crashed, she was injured and passenger Barbara Schwarz died.

    Bookout v. Toyota Motor Corp. was the first suit to go to trial against Toyota tying sudden unintended acceleration to electronic throttle control problems. A team of trial lawyers —Jere L. Beasley, J. Cole Portis, R. Graham Esdale, and Benjamin E. Baker of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. in Montgomery, AL, with assistance from Larry Tawwater of The Tawwater Law Firm in Oklahoma City, OK, and Paul Martin of Martin Jean Jackson in Ponca City, OK — won a $3 million compensatory damages jury verdict. Toyota settled before the jury could determine the amount of punitive damages. Then it settled the hundreds of other personal injury and wrongful death cases pending nationwide.

  • July 22, 2014
    Guest Post

    by Remington A. Gregg, Legislative Counsel, Human Rights Campaign

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    As we pause to commemorate the 50th anniversary of the passage of the Civil Rights Act of 1964, one of the most important pieces of legislation ever passed into law, it is a perfect time to look at the many ways it paved the way for the lesbian, gay, bisexual, and transgender (LGBT) community.  Not only did passage pave the way for additional pieces of civil rights legislation, including Title II of the Americans with Disabilities Act of 1990 and Title IX of the Education Amendments Act of 1972, but it marked a sizeable shift in the use of the commerce clause.  To LGBT movement, however, the Civil Rights Act marked the beginning of the LGBT community’s own fight for equality. 

    The long march toward LGBT equality gained momentum with Romer v. Evans in 1996, where the Supreme Court held that an amendment to the Colorado state constitution that would forbid the state or its subdivisions from extending legal protections to LGB people violated the Equal Protection Clause.  In 2003, in Lawrence v. Texas, the Supreme Court ruled affirmatively for the first time on a due process claim brought by gay claimants that LGBT people “are entitled to respect for their private lives.  The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.  Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”  And last year’s critical decision in United States v. Windsor changed the whole landscape in the LGBT community’s access to important federal benefits.   The Court held that Section 3 of the “Defense of Marriage Act,” which defined marriage as a “union between one man and one woman as husband and wife” for federal purposes, was an unconstitutional infringement on equal protection as applied to the federal government under the Due Process Clause of the Fifth Amendment.  Now, LGBT couples have access to more than 1,100 rights, benefits, and obligations previously denied to them.

    Each of these cases has served as a vital building block in the fight for equality. These successes have been paralleled with incredible legislative and administrative victories, including the repeal of “Don’t Ask, Don’t Tell,” passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, and an LGBT-inclusive Violence Against Women’s Act re-authorization. And yesterday, President Barack Obama signed an important executive order.  First, it prohibits federal contractors from discriminating in employment on the basis of sexual orientation or gender identity.  Second, it protects federal employees from discrimination on the basis of gender identity.  (President Bill Clinton signed an executive order that provided protections with regard to sexual orientation.)