ACSBlog

  • January 18, 2017
    Guest Post

    by Bill Yeomans, Fellow in Law and Government at American University Washington College of Law

    The election of Donald Trump has thrown the federal bureaucracy into uncertainty and nowhere is that uncertainty felt more strongly than in the Civil Rights Division of the Department of Justice. Trump’s campaign invoked racism, misogyny, xenophobia and disregard for the rule of law – all directly at odds with the fundamental laws that the Division enforces. The nomination of Sen. Jeff Sessions for attorney general confirmed the worst fears of Division lawyers that, once again, it is in the crosshairs of an incoming administration that is hostile to its mission. Many who work there face a decision whether to stay or go.

    I know. I spent 26 years in the Department of Justice, starting in the Jimmy Carter presidency and running through the transitions to Ronald Reagan, George H.W. Bush, Bill Clinton and George W. Bush. I chose to stay in the belief that the work of combating discrimination remained essential and to challenge the new administration to adhere to the Division’s tradition of formulating its positions through reasoned, legal argument, rather than political fiat. I recognized both that the career attorneys – with their fidelity to the law and knowledge of the Department’s customs and traditions--presented the strongest impediment to radical, lawless change and that even in the most challenging times important work could be done. In the weeks since the election, I have been approached by career attorneys wondering whether the Division will remain a place where they can work. My answer is that it is an intensely personal choice, but that they should understand that they have an important role to play in pressing for continued enforcement of the law and against politically driven retreat. Indeed, the corps of dedicated career employees remains the principal bulwark against the threat of a lawless executive.

    Since its creation in the Civil Rights Act of 1957, the Civil Rights Division has increased opportunity for large segments of the population. It has expanded access to meaningful voting; desegregated police and fire departments; attacked school desegregation; opened housing markets; expanded access to employment and accommodations for people with disabilities; and prosecuted police officers for using excessive force, people who engage in hate motivated violence and those who traffic in human beings. 

  • January 17, 2017
    Guest Post

    by Nicole Huberfeld, Ashland-Spears Distinguished Research Professor of Law, University of Kentucky

    The Patient Protection and Affordable Care Act (also called Obamacare) has extended health insurance coverage to more than 20 million Americans and achieved historically low un-insurance rates, yet most do not know much about the law or why its dramatic measures were necessary. The ACA responded to a constellation of health care and health insurance failures, including that un-insurance had reached an historic high of more than 16 percent at the time of the 2008 election. Fewer and fewer employers offered health insurance as an employment benefit for more than a decade before President Obama was elected and those that did had significantly increased employee cost sharing over time. The long-standing American assumption that people who work have health insurance was no longer true.

    Further, the uninsured were concentrated among the working poor, who were not offered health insurance as an employment benefit or could not afford insurance that was offered. Though slightly more than half of Americans receive health insurance as an employment benefit, that is only meaningful for people earning more than the average income of about $51,000 per year. For people earning below 400 percent of the federal poverty level ($47,250), employers are significantly less likely to offer health insurance; part-time workers are even less frequently offered health insurance.

    Additionally, individual and small group health insurance markets have had such high prices as to be inaccessible. And, in every market, insurers used tools such as preexisting condition exclusions, caps on coverage and other discriminatory practices to eliminate subscribers deemed not healthy. While public financing covered the elderly in Medicare, for the poor, Medicaid has offered an incomplete safety net, only covering the “deserving poor”, which meant about 40 percent of low-income individuals. The nation’s millions of uninsured citizens sought treatment in emergency rooms, which offered a point of rescue but not a permanent source of access to care (and which was unsustainably expensive for hospitals).

  • January 17, 2017
    Guest Post

    by Thomas Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    On Thursday, Jan. 12, the Department of Justice (DOJ) and the Baltimore Police Department (BPD) entered into a consent decree whereby the BPD agreed to stipulated changes in the ways that it conducts policing in the city, specifically in communities of color. In August of 2016 the DOJ had released the results of its investigation into the BPD where it found that the BPD “engages in a pattern or practice of conduct that violates the First and Fourth Amendments of the Constitution as well as federal anti-discrimination laws. BPD makes stops, searches and arrests without the required justification; uses enforcement strategies that unlawfully subject African Americans to disproportionate rates of stops, searches and arrests; uses excessive force; and retaliates against individuals for their constitutionally-protected expression.”

    The following day, on Friday, Jan. 13, the DOJ announced the findings of its investigation into the Chicago Police Department (CPD) where it found that the CPD “engages in a pattern or practice of using force, including deadly force, in violation of the Fourth Amendment to the Constitution.” The DOJ and the city of Chicago “have signed an agreement in principle to work together, with community input, to create a federal court-enforceable consent decree addressing the deficiencies found during the investigation.”

    The DOJ has investigated over two dozen law enforcement agencies during the Obama administration and has entered into consent decrees with many of these departments after investigations typically revealed agency-wide deficiencies in training, supervision and internal investigative oversight. Most often the DOJ investigations found “pattern and practice” violations of constitutional, civil rights and civil liberties protections, as well as widespread instances of excessive force and unlawful stops, searches and arrests, most often in communities of color. Police departments in Los Angeles, Miami, Pittsburgh and Detroit have been under federal oversight in recent years, as well as in Albuquerque and Cleveland. 

  • January 12, 2017
    Guest Post

    by Phil Telfeyan, Executive Director of Equal Justice Under Law and lead attorney in Buffin v. San Francisco

    No person should have to spend even one day in jail solely because he or she is poor. This fundamental axiom of American law is the cornerstone of the movement to end America’s discriminatory money bail system. In the past two years, Equal Justice Under Law has filed 11 lawsuits seeking to end money bail in cities and states across the country. Seven of these suits have led to the end of money bail in those seven cities; our litigation in San Francisco has the potential to end wealth-based detention across all of California.

    On Oct. 26, 2015, 19-year-old Riana Buffin was arrested for stealing from a department store. Under San Francisco’s bail schedule, she could have been immediately released if she had paid $30,000. But because she is too poor to pay that amount, she sat in jail for two days until the District Attorney decided not to press charges. Because of those two days in jail — two days a rich person would not have endured — Ms. Buffin lost her job at the Oakland airport, cutting off an essential source of income for her mother and two younger brothers (all three of whom have disabilities). Nobody thought Ms. Buffin was a danger to society. She had never been arrested before and the DA did not even file charges against her.

    Ms. Buffin is the lead plaintiff in a class action lawsuit — Buffin v. San Francisco — seeking to end San Francisco’s wealth-based detention scheme. The city currently runs two systems of pretrial justice: one for the rich and another for the rest of society. The poorer you are, the worse San Francisco’s justice system treats you.

    After numerous motions to dismiss, United States District Court Judge Yvonne Gonzalez Rogers declared that our legal challenge could move forward on the merits against Sheriff Vicky Hennessy. On Nov. 1, 2017, the Sheriff’s response came in: she and the City Attorney refused to defend money bail. “This two-tiered system of pretrial justice does not serve the interests of the government or the public, and unfairly discriminates against the poor,” the filing stated. Although the Sherriff will continue to enforce the State’s law, “she is not required to defend it, and she will not.”

  • January 11, 2017
    Guest Post

    by Brianne J. Gorod, Chief Counsel for the Constitutional Accountability Center

    The Senate is conducting a confirmation hearing blitz this week and next for 10 of President-elect Donald Trump’s announced Cabinet-level choices. The dizzying speed and compressed time in which these hearings are being held is troubling enough to those who prefer more thoughtful deliberation of anyone who, if confirmed, would wield great power. Worse - because we do not know the extent of the president-elect’s holdings and he has refused to sell his business and put the assets in a blind trust - his nominees could place their boss’s private business interests ahead of their duty to protect the national interest.

    As he appoints agency heads throughout the federal government, Trump is or will be choosing people to lead agencies that not only are investigating or could investigate his businesses, but also that could enrich them. That is why the Senate’s constitutional duty of “advice and consent” is so important: it is supposed to help ensure that nominees can be trusted to work in the interest of the public, not in the interest of the man advancing their careers.

    Of course, the Senate cannot provide informed “advice and consent” without a full picture of the potential conflicts. And it cannot know that full picture unless Trump fully discloses his debts and assets. As if Trump’s imminent collision with the Constitution’s Emoluments Clauses were not enough, this additional possibility of conflict is a significant reason why Trump should release his tax returns, sell his businesses and place an independent trustee in charge of a blind trust.

    The U.S. Constitution provides that the president, and the president alone, nominates the heads of federal agencies and other top federal officers. Each executive branch officer will swear an oath to “support and defend the Constitution.” Unless Trump sells his businesses, he will test the strength and independence of each appointee to avoid decisions designed to serve the president’s private interests.