ACSBlog

  • February 20, 2015
    Guest Post

    by Alex Kreit, Associate Professor of Law, Thomas Jefferson School of Law; Director, Center for Law & Social Justice; Co-Director, Criminal Law Fellowship Program

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

    In their influential 1970 study of marijuana prohibition in the United States, Richard J. Bonnie and Charles H. Whitebread found that “racial prejudice” was the “most prominent” factor in the passage of early marijuana prohibition laws.  When states began passing these laws in the first few decades of the 1900s, it was not uncommon to see legislatures expressly link marijuana prohibition with race.

    Reporting on a1929 hearing on a marijuana prohibition bill in Montana, for example, the Montana Standard told readers:

    “There was fun in the House Committee during the week when the Marihuana bill came up for consideration.  Marihuana is Mexican opium, a plant used by Mexicans and cultivated by Indians.  ‘When some beet field peon takes a few rares of this stuff,’ explained Dr. Fred Fulsher of Mineral County, ‘He thinks he has just been elected president of Mexico so he starts out to execute all his political enemies.  I understand that over in Butte where the Mexicans often go for the winter they stage imaginary bullfights in the ‘Bower of Roses’ or put on tournaments for the favor of ‘Spanish Rose’ after a couple of whiffs of Marihuana.’ Everybody laughed and the bill was recommended for passage.”

    It is rare to see anyone rely on anything approaching this sort of overt racism in the debate over marijuana laws today.  Indeed, nearly everyone ― prohibitionists and legalization advocates alike ― agrees that racial disparities in marijuana enforcement (and drug enforcement more broadly) are undesirable.  Most also acknowledge the issue is a cause for real concern and action.

    And yet, disparities in marijuana enforcement persist.  A 2013 ACLU report found that blacks are 3.73 times as likely to be arrested for marijuana possession as whites, even though the two groups use marijuana at roughly equal rates.  In New York City, Mayor de Blasio called racial bias in marijuana arrests “wrong and unjust” during his campaign.  But the first months of his administration saw even more total marijuana possession arrests than before, with an alarming racial divide: 86 percent of the people arrested were black or Latino and only 10 percent were white.

    Why is it so hard to address the disproportionate impact of marijuana arrests on communities of color despite widespread acknowledgement that it is a serious problem?  A lot of it has to do with the way marijuana investigations are initiated and the decentralized nature of law enforcement in the United States.

  • February 20, 2015

    by Caroline Cox

    Peter Weber writes for  The Week that liberals should care more about federal judges. The recent spate of judicial activism from conservative federal judges, he argues, shows that if they are concerned about policy, “liberals may want to start paying attention to the third branch of the federal government.”

    The blog for the Alliance for Justice examines how Republicans, despite controlling the Senate Judiciary Committee now, are still clearly obstructing judicial nominees and often for no apparent reason.

    A Massachusetts state panel is convening to consider applications for a U.S. District Court vacancy in Boston, reports Mass Live. The names of potential candidates will eventually make their way to the president, who will ultimately decide on his nomination.

    There are currently 49 vacancies, and 19 are now considered judicial emergencies. There are 14 pending nominees. For more information see judicialnominations.org.

  • February 20, 2015

    by Caroline Cox

    Mark Berman reports for The Washington Post that a Texas county has issued the state’s first marriage license to a same-sex couple. The Texas Supreme Court has issued a stay to halt other such marriages, and the Texas attorney general is arguing that the same-sex couple’s marriage is void, reports the Associated Press.

    Also in The Washington Post, George Sargent writes that a Supreme Court decision against the Affordable Care Act could cost the United States billions of dollars.

    At Talking Points Memo, Sahil Kapur examines the strategy of Affordable Care Act defenders to persuade Chief Justice John Roberts in King v. Burwell.

    Joel Cohen considers in Slate how to reform grand juries in the wake of the controversial Ferguson grand jury and public distrust of the grand jury system.

    At the blog for the Brennan Center for Justice, Michael Li discusses two Texas redistricting cases working their way through the courts.

    Gail Collins writes for The New York Times about Justice Ruth Bader Ginsburg’s growing popularity and refusal to retire.

  • 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.