Yesterday, the ACLU filed a lawsuit against Utah to force the state to continue recognizing the marriages of more than 1,000 same-sex couples who were legally married in the weeks after a federal court struck down Utah’s bans on allowing same-sex couples to marry. From the moment the federal court in Kitchen v. Herbert issued its decision on December 20, 2013, to the moment the Supreme Court issued a stay of the ruling on January 6, 2014 while the case is appealed, there was an outpouring of same-sex couples across the state who were finally able to express their love and commitment to each other through marriage and to protect their families through the protections and responsibilities that flow from being legally married.
After the Supreme Court stayed enforcement of the district court’s decision Utah’s governor has issued a directive ordering all state agencies to put the recognition of those marriages “on hold.” By terminating recognition of their marriages, the Governor’s directive effectively divorced over 1,000 couples in the eyes of the state, throwing their lives into disarray.
“We’re back at square one, with no idea what’s going to happen to us if one of us is hospitalized,” says Stacia. Her wife JoNell was treated much better when accompanying her during an emergency room visit after they were married than she was the time medical staff ignored and excluded JoNell during a previous hospitalization three years ago. “After 13 years together, we just want the security and peace of mind to know we can be there for each other in the hard times.”
The U.S. Supreme Court in Harris v. Quinn may not overturn precedent, seriously disrupting public employee unions, but such a possibility was “at least on the table” during today’s oral argument in the case.
In an argument recap, SCOTUSblog’s Lyle Denniston reported that “atmospherics” of today’s oral argument “suggested strongly that this case has very large potential.”
The case involves Illinois recognizing a single union for its home health care workers. Health care workers are not forced to join the union (in this case SEIU), but all members are required to pay fees for the union to engage in collective bargaining. A few state health care workers represented by an anti-union outfit called the National Right to Work Legal Defense Foundation are challenging that practice embodied in the National Labor Relations Act and supported by high court precedent.
Defending precedent on public employee unions was U.S. Solicitor General Donald B. Verrilli, Jr., who Denniston reported, “talked as if he, too, perceived the case to be a severe test of public worker collective bargaining.”
Nearing end of oral argument, Verrilli urged the justices to uphold its 1977 precedent set in the case Abood v. Detroit Board of Education. That case has stood “for forty years, and is entirely consistent with the First Amendment jurisprudence regarding the government as employer,” he said.
If the high court were to upset precedent and decide, “You can’t have an exclusive representative union, that would be a stake in the heart of not just unions in the public sector but all unions,” Smith told NPR.
The United States Supreme Court will soon hear oral argument in Harris v. Quinn, concerning the rights and responsibilities of unionized home healthcare workers in Illinois. Others have already spoken well on the subject in this ACSblog series. And it seems to me that this case, flying under the legal radar until it is heard, is poised to let activist conservative justices undo the legal solidarity fabric that undergirds American labor relations.
I’ve been a union and workers’ lawyer for more than twenty-five years. I’ve represented construction and heavy-industry workers, the backbone of the traditional labor movement. I’ve represented some white-collar employees. But for most of my career, I’ve been by the side of so-called low-skilled, low-wage workers- retail clerks, meatpackers, healthcare aides- people who do hard, dirty, and dangerous duties that many won’t touch. Maybe, like me, you used to do manual labor, but now you use your eyes, fingers and creativity on the job much more than your back and knees. If so look at this issue through your memories and through the eyes of those who do truly hard work for very little.
The kernel of the Harris issue is workers paying for union services. Since there’s a lot of misinformation about union membership, union security and union participation, a little background is needed. No one has to become a member of a labor union: that’s your First Amendment right. If you don’t want to join, you don’t have to. In southern and western states (and now Midwestern states like Michigan and Indiana), the nearly half of America that is “right-to-work,” you can work in a union shop and get union benefits and services for free. But, in the rest of the country, if your workplace has a union and a contract with a union security clause, you have to pay an amount roughly equivalent to union dues to work there. You don’t have to join, you don’t have to agree, you don’t have to go to meetings, you don’t have to participate. But paying for union services isn’t optional.
This week saw a flurry of action on the judicial nominations front.
On Monday, January 13, the Senate confirmed Robert Wilkins to the D.C. Circuit with a vote of 55-43. With his confirmation, the D.C. Circuit is fully staffed for the first time since 1991.
On Thursday, January 16, the Senate Judiciary Committee held votes on 29 nominees, including nine nominees who had already been reported out last year. All 29 nominees were voted out of Committee, including several with connections to ACS’s network. No votes by the full Senate have been set. Quick action, however, could cut the judicial vacancy rate by one-third. The nominees voted out of Committee are:
Carolyn B. McHugh, Tenth Circuit, Voice Vote
John B. Owens, Ninth Circuit, Voice Vote
Michelle T. Friedland, Ninth Circuit, Roll Call Vote, 14-3
Nancy L. Moritz, Tenth Circuit, Voice Vote
David Jeremiah Barron, First Circuit, Call Vote, 10-8
Jeffrey Alker Meyer, District of Connecticut, Voice Vote
Timothy L. Brooks, Western District of Arkansas, Voice Vote
James Donato, Northern District of California, Voice Vote
Beth Labson Freeman, Northern District of California, Voice Vote
Pedro A. Delgado Hernandez, District of Puerto Rico, Voice Vote
Pamela L. Reeves, Eastern District of Tennessee, Voice Vote
Vince Girdhari Chhabria, Northern District of California, Roll Call Vote, 13-5
James Maxwell Moody, Jr., Eastern District of Kansas, Vote
Matthew Frederick Leitman, Eastern District of Michigan, Voice Vote
Judith Ellen Levy, Eastern District of Michigan, Voice Vote
Laurie J. Michelson, Eastern District of Michigan, Voice Vote
Linda Vivienne Parker, Eastern District of Michigan, Roll Call Vote, 14-3
Christopher Reid Cooper, District of Columbia, Voice Vote
M. Douglas Harpool, Eastern District of Pennsylvania, Voice Vote
Gerald Austin McHugh, Jr., Eastern District of Pennsylvania, Roll Call Vote, 12-5
Edward G. Smith, Eastern District of Pennsylvania, Voice Vote
Sheryl H. Lipman, Western District of Tennessee, Voice Vote
Stanley Allen Bastian, Eastern District of Washington, Voice Vote
Manish S. Shah, Northern District of Illinois, Voice Vote
Daniel D. Crabtree, District of Kansas, Voice Vote
Cynthia Ann Bashant, Southern District California, Voice Vote
Jon David Levy, District of Maine, Roll Call Vote, 15-2
Theodore David Chuang, District of Maryland, Roll Call Vote, 10-8
George Jarrod Hazel, District of Maryland, Voice Vote
by Timothy S. Jost, Robert L. Willett Family Professor of Law, Washington and Lee University School of Law
On January 15, 2014, the ACA won its most important legal victory since the Supreme Court upheld the individual mandate in NFIB v. Sebelius. Judge Paul Friedman of the federal court for the District of Columbia ruled in Halbig v. Sebelius that an IRS rule authorizing the issuance of premium tax credits in states with federal exchanges was supported by the “unambiguously expressed” intent of Congress, and thus valid.
The issue in Halbig is this: The ACA authorizes the IRS to offer premium tax credits to individuals who have household incomes between 100 and 400 percent of the federal poverty level and who are not eligible for other forms of coverage (such as employer coverage, Medicaid, or Medicare). Premium tax credits are, however, only available for insurance purchased through the exchanges. The ACA requests the states to establish exchanges, and sixteen states have done so. The ACA also, however, authorizes the federal government to establish exchanges in states that choose not to set up their own exchanges. The federal exchange covers 34 states.
Two clauses of the ACA section authorizing premium tax credits provide that tax credits are available for months in which an individual is enrolled in a qualified health plan “through an Exchange established by the State under 1311” of the ACA. The plaintiffs in Halbig argue that this provision bars the IRS from issuing premium tax credits to individuals who enroll through federal, as opposed to state, exchanges.
A victory for the plaintiffs on this theory would have blown a major hole in the ACA. Not only would it have barred millions of Americans who live in federal exchange estates from receiving premium tax credits, it would have also rendered the employer mandate unenforceable in those states. Employers that do not cover their employees are only subject to a tax penalty if employees receive premium tax credits through an exchange.