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  • February 19, 2015

    by Caroline Cox

    In the Los Angeles Times, Michael Hiltzik asserts that the continued unraveling of the case against the Affordable Care Act in King v. Burwell reveals that the case is merely “an ideological attack…masquerading as a rule-of-law case.”

    Glenn Kessler of The Washington Post examines whether GOP lawmakers have changed their opinions on the subsidies in the Affordable Care Act.

    Cristian Farias argues at The New Republic that the recent federal judge’s temporary injunction that blocked President Barack Obama’s immigration action was a political move.

    In The New York Times, ACS Board of Directors Member Linda Greenhouse considers with the Supreme Court will hear another case on affirmative action.

    At the blog for the Brennan Center for Justice, Michael Li writes that two cases before the Supreme Court this term may allow politicians greater freedom to gerrymander.

    Irin Carmon reports for MSNBC that Mississippi has requested that the Supreme court rule on a law that would close the state’s last abortion clinic.

  • February 18, 2015
    Guest Post

    by Rob Weiner, formerly Associate Deputy Attorney General in the United States Department of Justice, is a partner at Arnold & Porter LLP. This post first appeared at Balkinization.

    The issue of standing to sue has prompted the latest commotion in King v. Burwell, where the Petitioners ask the Supreme Court to deny low-income families the tax subsidies granted under the Affordable Care Act to help them purchase health insurance.  To bring a lawsuit in federal court, plaintiffs must have standing to sue.  The prerequisite for standing is injury.  Plaintiffs challenging a federal law thus must show either that it caused them injury or that they face an imminent risk of injury.  If the risk abates or is too speculative, the litigants have no standing, and the court therefore no longer has jurisdiction.

    The plaintiffs (now Petitioners) in King asserted standing based on a roundabout explanation of the harm they would suffer if they received this tax relief.  The subsidies, they claimed, would lower their cost of insurance below eight percent of their income, the threshold for the individual mandate to apply.  They therefore would be required under the ACA to purchase health insurance or pay a tax penalty—a sufficient injury to confer standing.

    Recently, however, some enterprising investigative reporters have raised doubts whether the subsidies would in fact cause any of the plaintiffs in King to be subject to the individual mandate.  Two of the four plaintiffs, it turns out, are veterans.  Eligibility for VA benefits, or at least enrollment in the program, would exempt them from the individual mandate.  A third plaintiff has relocated since the case was filed, and geographic variation in the cost of insurance could affect whether the subsidies put her under the eight percent threshold.  And reporters have questioned whether the fourth plaintiff has so little income that she would be exempt from the mandate even with the subsidies.

  • February 18, 2015

    by Jeremy Leaming

    U.S. Senators are again pushing a bill aimed at providing more protection of consumer data stored by American tech companies overseas.

    Sens. Chris Coons (D-Del.), Orrin Hatch (R-Utah) and Dean Heller (R-Nev.) recently reintroduced the Law Enforcement Access to Data Stored Abroad Act (LEADS Act), which languished in the last Congress. The LEADS Act would change the Electronic Communications Privacy Act (ECPA) and, in part, would prohibit federal officials from using a warrant to obtain information stored abroad, unless the information sought belongs to an American.

    In a press statement, Sen. Coons said, “Law enforcement agencies wishing to access Americans’ data in the cloud ought to get a warrant, and just like warrants for physical evidence, warrants for content under ECPA shouldn’t authorize seizure of communications that are located in a foreign country. The government’s position that ECPA warrants do apply abroad puts U.S. cloud providers in the position of having to break the privacy laws of foreign countries in which they do business in order to comply with U.S. law. This is not only hurts our businesses’ competitiveness and costs American jobs, but it also invites reciprocal treatment by our international trading partners.”

    The senators’ statement on the LEADS Act claims it would “clarify ECPA by stating that the U.S. government cannot compel disclosure of data from U.S. providers stored abroad if accessing that data would violate the laws of the country where it is stored or if the data is not associated with a U.S. person – that is, a citizen or lawful permanent resident of the United States, or a company incorporated in the United States.”

    The U.S. Court of Appeals for the Second Circuit is hearing an appeal of a federal court refusal to set aside a government issued warrant to obtain email account information stored by Microsoft in Ireland.

    See here for more information about the LEADS Act.

  • February 18, 2015
    Guest Post

    by Ryan P. Haygood, Deputy Director of Litigation, NAACP Legal Defense and Educational Fund, Inc.

    *This post is part of our two-week symposium on racial inequalities in the criminal justice system.

    The history-making events of “Bloody Sunday” on March 7, 1965, in Selma, Alabama, ultimately freed the vote for millions of Black voters.  But 50 years later, as we commemorate the march that led to passage of the Voting Rights Act of 1965, we are also reminded that more than two million Black people continue to be denied the right to vote by one of the vestiges of American slavery.

    Black voter registration in Selma in 1965 was made virtually impossible by Alabama’s relentless efforts to block the Black vote, which included requiring Blacks to interpret entire sections of Alabama’s constitution, an impossible feat for even the most learned.  On one occasion, even a Black man who had earned a Ph.D. was unable to pass Alabama’s literacy test.

    On Bloody Sunday, John Lewis and Reverend Hosea Williams led almost 600 unarmed men, women and children in a peaceful march across the Edmund Pettus Bridge from Selma to Montgomery to dramatize to the nation their desire as Black people to participate in the political process.

    As they crossed the highest part of the bridge, the marchers were viciously attacked by Alabama state troopers, who ridiculed, tear-gassed, clubbed, spat on, whipped and trampled them with their horses.  In the end, Lewis’s skull was fractured by a state trooper’s nightstick, and 17 other marchers were hospitalized.

    In direct response to Bloody Sunday, President Lyndon Johnson five months later signed the Voting Rights Act of 1965 into law.  Considered by many to be the greatest victory of the civil rights movement, the Voting Rights Act removed barriers, such as literacy tests, that had long kept Blacks from voting.

    Despite the promise of increased political participation by Black people and other people of color created by the Voting Rights Act, which twice led to the election of a Black president, its full potential has not been realized by one of the last excluded segments of our society: Americans with criminal convictions.

    Today, more than 5 million Americans are locked out of the political process by state felon disfranchisement laws that disqualify people with felony convictions from voting.

    The historical record reveals that to prevent newly freed Blacks from voting after the Civil War, many state legislatures in the North and South tailored their felon disfranchisement laws to require the loss of voting rights only for those offenses committed mostly by Black people.

  • February 18, 2015

    by Caroline Cox

    On Monday, a U.S. District Court judge temporarily blocked President Barack Obama’s executive action on immigration. The White House has indefinitely postponed its immigration reforms in order to comply with the federal judge’s order, report Michael D. Shear and Julia Preston for The New York Times.

    The Editorial Board of The New York Times offers harsh criticism of Federal District Judge Andrew Hanen who temporarily blocked President Obama’s first of several new immigration programs. Both MALDEF and the National Council of La Raza issued statements criticizing the judge’s ruling.

    Zoe Carpenter argues at The Nation that the ruling from Judge Hanen puts millions of immigrants in limbo. Luke Brinker of Salon asserts that the judge’s ruling was a “politically charged move.”

    At The WeekPeter Weber considers when liberals will begin caring more about federal judges. 

    Geoffrey R. Stone, co-faculty advisor for the ACS Student Chapter at the University of Chicago Law School, writes at The Huffington Post on Charlie Hebdo and the First Amendment.

    In The Washington Post, Mark Berman reports that Pennsylvania Governor Tom Wolf has suspended the death penalty in the state.