All

  • November 12, 2014

    by Ann C. Hodges, Professor of Law, University of Richmond

    In one of the surprising results of election night, four traditionally Republican states passed ballot measures increasing the minimum wage. By significant margins, voters in Alaska, Arkansas, Nebraska and South Dakota adopted laws raising the minimum wage. Voters in the blue state of Illinois passed an advisory referendum urging the legislature to increase the minimum wage, while at the same time electing a Republican governor. In a state like Alaska, the high cost of living may have influenced voters, but that does not explain the outcome in the other states. What caused these somewhat anomalous results?  After all, Republicans have traditionally opposed increases in the minimum wage and most continue to do so. 

    While speculation about the motivations of votes is always risky, these results appear to affirm the effectiveness of two recent strategies of workers’ rights advocates. First, it appears that voters are recognizing the serious inadequacy of the wages of low paid workers. The widely publicized demonstrations by low wage fast food and retail workers have raised public awareness and focused attention on the fact that many of these workers are adults, often with families that they are working hard to support.

    If I am correct that the public protests helped motivate voters, it reminds us that strikes and demonstrations, which until recently had been largely abandoned by unions and other advocacy groups, remain effective at drawing public attention to inequalities. Social media has enhanced the ability to both organize and publicize demonstrations. Strategic use of these tactics will continue to keep these issues in the public eye.

  • November 11, 2014
    Guest Post

    by Timothy S. Jost, Professor of Law, Washington and Lee University School of Law

    It is arguable that defenders of the Affordable Care Act lost the Supreme Court in 2012 on the Commerce Clause issue in NFIB v. Sebelius when the media accepted the plaintiffs’ meme that the case was really about whether the government could make Americans eat broccoli rather than about protecting insurance markets from adverse selection and providers from free riders.  With another ACA case before the Supreme Court, the challengers are once again aggressively marketing their narrative to the media.  It is important that the media approach their claims skeptically, or at least intelligently, so that the American public, and the Court, understand what the case is really about—and what it is not about.  So let’s get this much straight:

    Congress knew that not all states would operate exchanges and intended the federally facilitated as well as the state operated exchanges to offer premium tax credits. 

    As is amply documented in the briefs filed in these cases by the members of Congress who drafted the ACA, Congress understood that a federal fallback exchange was not only necessary for constitutional reasons because Congress could not force the states to operate exchanges, but also for practical reasons because some would not.  The challengers have made up a narrative about Congress limiting premium tax credits to state exchanges to bludgeon them into setting up their own exchanges, but there is absolutely no support for this in the legislative record.

    If the Court chooses to ignore Congressional intent, it cannot ignore the text of the statute.

    Although congressional intent is clear, it is not essential for the Court to look at the legislative history, or even to consider Congress’ clear purpose to extend coverage to all Americans, to reach the right result.  If the Court looks only at the text of the ACA—but looks at the entire text and doesn’t merely cherry pick one phrase—this is an easy case.  Sure, the words “established by the State” are found in the ACA, but the ACA also provides that federally facilitated exchanges have all of the powers of state operated exchanges; federally facilitated exchange effectively and by definition becomes the “Exchange established by the State”: and HHS must ensure that “residents of each State may apply for enrollment in, receive a determination of eligibility for participation in, and continue participation in” the premium tax credit program.  Legitimate textualism requires attention to the entire text.  Literally dozens of provisions of the ACA become incongruous if a court focuses only on the “established by the State” phrase without understanding its context. 

  • November 11, 2014

    by Caroline Cox

    Paul Krugman of The New York Times criticizes the new Supreme Court challenge to the Affordable Care Act and argues that the challenge is based on an “obvious typo.”

    In The Wall Street Journal, Jess Bravin discusses Justice Stephen Breyer’s comments at on his faith the Jewish Federations of North America convention.

    Jeffrey Rosen argues in The New Republic that this term may decide the legacy of Chief Justice John Roberts.

    In Slate, Richard L. Hasen previews the upcoming oral argument for the Alabama redistricting cases in which the Supreme Court will consider whether gerrymandering in the state was an attempt to disenfranchise black voters. 

  • November 10, 2014

    by Caroline Cox

    In the Los Angeles Times, David G. Savage and Timothy M. Phelps argue that President Obama is unlikely to change the ideology of the Supreme Court with the new Republican Senate. ACS President Caroline Fredrickson is quoted in the article.

    Noah Feldman examines the newest challenge to the Affordable Care Act before the Supreme Court this term in Bloomberg View.

    In the Detroit Free Press, David H. Gans argues against the decision of U.S. Sixth Circuit Court of Appeals Judge Jeffrey Sutton that upheld same-sex marriage bands in four states.

    Jessica Eaglin writes at the blog for the Brennan Center for Justice on California’s Proposition 47 and the attempt to slow mass incarceration.

    At The Atlantic¸ Matt Ford explains why the Supreme Court may not have to rule on same-sexmarriage. 

  • November 7, 2014

    by Abbie Kamin, Legal Research & Communications Associate for the Lone Star Project and Field Director for the Campaign Legal Center’s Voter ID Assistance Pilot Program in Harris County, TX.

    Tuesday’s Election was a loss for voting rights throughout the country. While countless citizens could not vote because of the implementation of discriminatory voting laws, one can only hope these experiences in Tuesday’s election will galvanize the civil rights community to push even harder to breath life back into the Voting Rights Act (VRA). Until Congress amends the VRA, costly and time-consuming state-by-state litigation will be the key to protecting the right to vote.

    Discriminatory voting laws have already been enacted in several states via highly restrictive voter photo-ID requirements. Because these restrictive laws are working, effectively preventing many citizens from voting, we will likely see an increase in these types of laws

    We have seen first-hand here in Texas the enactment of suppressive voting measures by our state legislature, leading to separate court findings of intentional discrimination by the State on three different measures: congressional redistricting, state senate redistricting, and voter photo ID (SB 14). Texas has been at the forefront of recent efforts to discriminate against minority voters.