Guest Post

  • June 2, 2016
    Guest Post

    by Senator Sheldon Whitehouse (D-R.I.). Sen. Whitehouse is a member of the Judiciary Committee as well as the Health, Education, Labor, and Pensions (HELP) Committee, Budget Committee, Environment and Public Works Committee, and Special Committee on Aging.

    The recent op-ed by two Republican members of the House of Representatives argues that their efforts to impeach the IRS Commissioner are on the level. Maybe.

    But when you look at how the Republican Party is paid for, Republicans have a very good reason for trying to keep their boot firmly on the neck of the IRS. Keeping an already timid bureaucracy even more intimidated has a significant strategic benefit.

    There is a dirty secret to the "dark money" organizations that plague our elections: They're not supposed to be in our elections. And if the IRS were doing its job, they wouldn't be.

    If we were rid of dark money, it would make the American people happier, as we are fully creeped out by the seemingly unlimited influence-buying in politics. But big special interests which make a killing off their political "investments" would not be happy at all. They might have to act out in the daylight where we can watch them; and they much prefer the dark to do their dirty work of killing climate change and campaign finance legislation, preventing Medicare from negotiating drug prices, and unleashing Wall Street from regulation.

    They also prefer the Republican Party, so protecting dark money gets the full attention of Party leaders in Congress. For them, political dark money has become as important as an air hose to a deep sea diver.

  • May 31, 2016
    Guest Post

    by Rosann Mariappuram, vice president of events, University of Texas School of Law ACS Student Chapter, and former staff member, Reproductive Health Access Project

    *This post was first published on the Reproductive Health Access Project blog.

    I arrived in Washington on Tuesday, March 2, the day before the oral arguments for Whole Woman’s Health v. Hellerstedt. I was planning to meet up with the Reproductive Health Access Project (RHAP) staff to make rally signs and then attend the rally on Wednesday morning. As we touched down in D.C. my fellow law students and I got a flurry of excited texts from a friend who was already at the Supreme Court, telling us that there were only two dozen people in line for public tickets so far – and that normally 30 to 50 people got in. We grabbed our suitcases, hopped on the Metro, jogged up Capitol Hill, and got in line by 5pm. We estimated we might be the 30th to 35th people in line.

    Spending the night on the sidewalk in front of the Supreme Court was definitely an adventure. Friends stopped by with supplies and food, and RHAP’s amazing board member Emily Kane-Lee gave us a sleeping bag, umbrellas, and hats. Over the course of the night as we hid from the rain we shared stories of why the case was so important to us with other people in line. I got interviewed by a TV station from Houston and the website Refinery29, which was very exciting (and nerve-wracking)! Before I knew it though the sun was coming up and security guards were letting us into the Court.

  • 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.