Guest Post

  • June 25, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law

    *This piece originally appeared at The Huffington Post

    For proponents of the Affordable Care Act, today's Supreme Court decision upholding federal subsidies on federally created exchanges is cause to celebrate. Once again, the ACA has survived a potentially fatal challenge. The significance of today's decision, however, also extends into the future. Because of how the Supreme Court reasoned in the case, a future president opposed to the ACA (including all of the current crop of GOP contenders) will not be able to reinterpret the law to deny subsidies to low- and middle-income taxpayers in the future.

    One of the arguments rejected by Chief Justice John Roberts' majority decision is that the ACA is ambiguous and that, as a result, the Court should defer to the construction of the relevant administrative agency, here the Internal Revenue Service. (The IRS read the statute to allow subsidies.) Robert said it was the justices' job to read the statute for themselves without deference to the IRS. While the court rejected the administration's argument on this point, Obama's loss bodes well for the long-term viability of the Affordable Care Act.

    If the court had deferred to the IRS construction of the statute, the next president, should he or she be opposed to subsidies, could have pushed the IRS to reconsider the law. The IRS could have determined then that the ACA did not make subsidies available on the federally created exchanges. That would have gutted the law -- even without opponents having to pass anything from Congress.

    Chief Justice Roberts' decision eliminates the possibility. By insisting that the subsidy question was too important for the court to defer to the agency's interpretation, Roberts betrays his usual preference for judicial supremacy and skepticism of the executive branch. Yet in doing so he takes the subsidy question off the table for future presidents. A President Rubio or Bush won't be able to reinterpret the ACA to deny subsidies on the federally created exchanges. The ACA has now been authoritatively and conclusively read by the Supreme Court to allow subsidies.

    Chief Justice Roberts has not only saved Obamacare once again. He's also given the law strong protection against future attack.

  • June 23, 2015
    Guest Post

    by Linda Greenhouse, Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School, and Reva Siegel, Nicholas deB. Katzenbach Professor at Yale Law School.

    *This post originally appeared on Balkinization.

    "Liberty finds no refuge in a jurisprudence of doubt," the famous first line of the joint opinion in Planned Parenthood v. Casey, sounds more than a little ironic following the Fifth Circuit's latest endorsement of the unrelenting anti-abortion campaigns conducted by the elected leaders of the states within the circuit. Liberty of reproductive choice finds no refuge in the Fifth Circuit.

    Unless stayed by the Supreme Court, the recently-decided Whole Women's Health v. Cole will soon close three-quarters of the abortion clinics left in Texas.  Where there were 41 clinics less than two years ago, there will soon be as few as eight in a state of 27 million people. The disappearing clinics can't meet the law's requirements that their doctors have admitting privileges at local hospitals or that the clinics be retrofitted as mini hospitals themselves. There is no evidence that either regulation contributes to the health or safety of abortion patients. But the state justified both requirements as serving its interest in protecting women's health, and the Fifth Circuit, invoking Casey and Gonzales v. Carhart, accepted the state's claim at face value.

    In a forthcoming article in the Yale Law Journal, we argue that Casey and Carhart require more: that courts must examine how effectively a health-justified regulation actually serves the state’s asserted health interests in order to determine whether the burden it imposes on women’s access to abortion is undue.  On this analysis, a roadblock statute of the kind the Fifth Circuit recently upheld is plainly unconstitutional. We demonstrate this, not only through the language of Casey/Carhart, but also through an understanding of the compromise the undue burden framework represents.

    Recall that, in neither overturning nor wholly reaffirming Roe v. Wade, Casey authorized government to take steps to protect potential life throughout a woman's pregnancy, but only by means of persuading a woman to forego abortion and become a mother.  “[T]he means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.” Thus, Casey upheld a 24-hour waiting period and a mandatory counseling requirement, while striking down a law requiring married women to notify their husbands of their intention to terminate a pregnancy. The line Casey drew—allowing the state to persuade a woman to choose childbirth, but forbidding the state to "hinder" her choice of abortion—is one that protects women's dignity, a value as much at the core of the Casey compromise as the protection of prenatal life.

  • June 22, 2015
    Guest Post

    by Suzanne B. Goldberg, Director of the Center for Gender and Sexuality Law at Columbia Law School and Executive Vice President for University Life at Columbia University.

    *This post originally appeared on The HuffPost Blog.

    As the U.S. Supreme Court considers taking up another case related to abortion rights, now is the time to reexamine the old-chestnut narrative that abortion rests solely on a tenuous right to privacy and take heed that the Court ‒ yes, this Court ‒ has a long track record of protecting not only privacy but also the liberty that is part of such deeply personal decision-making.

    Over the last several decades, a popular, but inaccurate, narrative has taken hold about the constitution and abortion. Many argue that the right to privacy, set out in Roe v. Wade in 1973, is the sole constitutional protection for a woman's right to end a pregnancy. But this analysis rests on a limited and restrictive understanding of the law.

    The right to abortion is grounded in the Fourteenth Amendment, which protects all of us from undue government interference with our liberty interests. More than 20 years ago, the Supreme Court made this clear when it reaffirmed the constitutional right to abortion in Planned Parenthood v. Casey. There, the Court explained that this right was rooted in a woman's Fourteenth Amendment liberty right, which covers decisions about marriage, procreation, contraception, family relationships, child rearing and education. 

    In the words of the linchpin justices, Souter, O'Connor and Kennedy:

    These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

    At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

  • June 19, 2015
    Guest Post

    by Nkechi Taifa, Senior Policy Analyst, Open Society Foundations, Washington Office

    *This post originally appeared on Open Society Voices

    My soul is heavy. A young white man walked into the historic Emanuel African Methodist Episcopal (AME) church in Charleston, South Carolina, and opened fire, killing nine black parishioners gathered in prayer. A grandmother said she had to play dead to shield her five-year-old grandchild from slaughter. A prominent state senator, who was also a pastor, was leading Wednesday night Bible study when he was gunned down, along with an 87-year-old elder. 

    This massacre was an act of terrorism, pure and simple. For African Americans in this country today, it seems there is no sanctuary anywhere.

    This is not a good time to be black in America. According to one analysis released this week, African Americans are killed at 12 times the rate of people in other developed countries around the world. But when has there ever been a good time to be black in America? We survived slavery and lynchings; weathered the Klan, the Birmingham church bombing and Bull Connor’s dogs; and were beaten on the Edmund Pettus Bridge for this? As Fannie Lou Hamer put it, “I’m sick and tired of being sick and tired.” My soul is heavy today.

    The issue of race and racial justice must take center stage in this country. We can no longer hide from it, or sweep it under the rug. We cannot be scared to insert it into reports and commissions and legislative initiatives. We must courageously confront it, embrace it, do whatever it takes, and heal. People of African descent in the U.S. have endured hardship and tragedy far too long.

    The tragedy at the Emanuel AME Church was not about one lone young white man. This is about centuries of systemic oppression, repression, and yes, terrorism. 

    At the Open Society Foundations, we work to combat prejudice, and to change the racial narrative in this country. We work to flush implicit bias out of the shadows, confront it, and change attitudes. We work to end the system of mass incarceration that tears so many families and communities apart, and affects black people disproportionately. We demand better policing, in the name of Michael Brown, Eric Garner, Tamir Rice, Walter Scott, Freddie Gray, and countless others. We work to make this society more inclusive, to challenge inequality of opportunity, to improve life outcomes for all men and women of color.

  • June 19, 2015
    Guest Post

    by Chris Edelson is an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

    The most important fact about the killings in Charleston on Wednesday night is that nine people who should be alive today were murdered.  No discussion of what happened should lose sight of this essential truth.  However, it is well worth considering why they were murdered and what actions can be taken to address the racial hatred that led a white man to end the lives of nine African Americans.

    We know that the confessed killer, Dylann Roof, was motivated by racism.  A survivor of the shooting tells us that the killer responded to pleas that he stop shooting by saying “No, you’ve raped our women, and you are taking over the country…I have to do what I have to do.”  The killer reportedly told investigators that he hoped to start a race war.

    Ta-Nehisi Coates has quite rightly observed that the killer’s “crime cannot be divorced from the ideology of white supremacy which long animated [South Carolina] nor from its potent symbol—the Confederate flag.”  South Carolina, of course, continues to fly “the Confederate battle flag—the flag of Dylann Roof—…on the Capitol grounds in Columbia.” Coates points out that the right thing to do -- the long overdue thing to do -- is to “take down the Confederate flag -- now.”

    Those who defend South Carolina’s continuing decision to fly the Confederate flag often claim the flag stands for states’ rights, not slavery and racism. South Carolina Congressman Mark Sanford argued last night that some people see the flag as “a symbol of heritage, a symbol of states’ rights.” People are of course entitled to have an opinion, but the idea that the Confederate flag stands for states’ rights is not an opinion, it is a distortion of historical fact -- a dangerous distortion, because it can be used as cover by racists who seek to sanitize their hateful views.

    The reality is that, as historian Eric Foner says, “slavery was the fundamental cause of the civil war.”  The Confederate states subordinated states’ rights to the central goal of preserving slavery and white superiority.  The evidence supporting this reality is clear and compelling.  The Confederate constitution contained a federal supremacy clause closely modeled on the federal supremacy clause in the U.S. Constitution, declaring that:  “This Constitution, and the laws of the Confederate States made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the Confederate States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”  In other words, the individual states making up the Confederacy did not enjoy the unfettered ability to make their own laws.  When a state law conflicted with the Confederate constitution or a law passed by the Confederate Congress, the state law would yield.