• December 18, 2014

    by Neil Kinkopf, Professor of Law, Georgia State University.

    The House of Representatives has passed over 50 measures to repeal the Affordable Care Act. The Supreme Court hasn’t yet entertained quite that many challenges, but it seems intent on catching up. Having resolved the major constitutional controversies, the latest challenge, King v. Burwell, is statutory. 

    To understand the arguments and the stakes in this case, we have to first take a step back and review how the ACA works. The ACA requires (almost) all individuals to have qualified health insurance. This requirement of nearly universal coverage is crucial to making the Act work. To make health insurance affordable, the Act provides subsidies to income-eligible individuals. To make health insurance available, the ACA seeks to establish a marketplace – an exchange, in the terms of the Act – in each state. The Act contemplates that each state government will establish an exchange. If a state government fails to establish an exchange, the federal government is mandated to step in and establish an exchange for the state.  

    The ACA grants subsidies to income-eligible individuals who purchase insurance on “an exchange established by the state.” This is the key phrase, for the challengers assert that it refers exclusively to exchanges established by state governments. If that interpretation is correct, the consequence is that individuals in states whose exchange is established by the federal government (because their state government refused or failed to establish one) are ineligible for the insurance subsidy. This, according to the law’s proponents, would gut the ACA, rendering health insurance unaffordable for millions of Americans. The law’s challengers reply that the meaning of the phrase is plain and that meaning must prevail.  There are many excellent posts demonstrating that the challengers’ plain meaning reading is inconsistent with the text and structure, not to mention the purpose and intent, of the ACA. I do not wish to repeat those arguments. Instead, I want to examine whether the challengers’ reading of the statute actually captures the plain meaning of the key phrase without resorting to the ACA’s broader structure and context (which, I hasten to add, are essential components of proper textualist, plain meaning analysis).

  • December 17, 2014

    by Caroline Cox

    Leslie Shoebotham writes for Hamilton and Griffin on Rights about Heien’s impact on future Fourth Amendment cases.

    At The Economist, Steven Mazie considers the standard Heien creates and who determines how “reasonable” an officer’s mistake may be.

    Chris Geidner of Buzzfeed reports that the Supreme Court is under pressure to rule on same-sex marriage, but may still decline to resolve the issue nationwide.

    At Slate, Jamelle Bouie takes a look at the CIA torture report through the lens of prisoner treatment in the United States.  

  • December 16, 2014
    Why Not Jail?
    Industrial Catastrophes, Corporate Malfeasance, and Government Inaction
    Rena Steinzor

    by Rena Steinzor, a Professor at the University of Maryland Carey School of Law and the president of the Center for Progressive Reform. For two decades, she has written dozens of articles and two previous books about the regulatory system that protects public health, worker and consumer safety, and the environment. She has testified repeatedly before Congress and has been quoted extensively in a wide range of mainstream media outlets. Cambridge University Press published her latest book Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction in December 2014.

    One subtle and too often ignored symptom of the fundamental bias in America’s criminal justice system is its feathery embrace of white collar crime. Failure to prosecute the banks in the wake of the 2008 crash gets consistent media attention and disgusts many people, but these reactions have yet to motivate a concerted response by the Obama Justice Department. The parallel failure to prosecute the corporations and executives that kill and injure people through reckless practices in industrial contexts is barely discussed.

    Just in the last few years, hundreds have died and thousands have been injured. Causes include contaminated food (think listeria in cantaloupes and salmonella in peanut paste), infected drugs (steroid injections tainted by meningitis), defective products (for example, Toyota sudden acceleration, General Motors ignition switches, Takata airbags), tainted drugs (consider meningitis-laden steroid injections administered at hospitals nationwide but manufactured by a nightmarishly inept pharmacy in Massachusetts), and absolutely preventable industrial catastrophes (oil rigs, refineries, coal mines, sugar plants, and construction sites). Less obvious is the egregious malfeasance at executive levels that enabled these outcomes. 

    The cantaloupes were washed in a machine designed for potatoes, with a disconnected rinse mechanism needed to kill the listeria. The peanut paste was shipped despite a positive test for salmonella. The managers of the “clean room” used to process injectable drugs shut off the air conditioning at night, allowing fungi and bacteria to fester. At the very least, senior car company executives failed to disclose defects to federal regulators promptly, as required by the law. They dragged their feet for months on recalls and, as the GM investigation deepens, evidence is even emerging that engineers fixed the defect in 2005 without informing dealers who had stockpiles of the defective parts, many of which ended up in cars still on the road. In the workplace, employers are quick to blame line workers for human errors regardless of thousands of pages of expert reports explaining that cost-cutting, delayed maintenance, lack of trained supervisory personnel, poor safety cultures, and manic haste to extract natural resources and build structures created intolerable risk. To their credit, U.S. attorneys are just beginning to bring such cases, and recently secured felony convictions against the owner and senior managers of the peanut plant.

  • December 16, 2014

    by Nanya Springer

    During his confirmation hearings in 2005, many voiced concerns that then-Supreme Court nominee John G. Roberts had consistently opposed attempts to strengthen women’s rights while he was a legal adviser in the Reagan White House.  Roberts responded to those concerns by generally reassuring the Senate Judiciary Committee that he supported equal rights for women, including in the workplace.  When asked about his position on abortion, Roberts responded that he would respect precedent, referencing the stare decisis principles articulated in Planned Parenthood v. Casey.

    Now that the Roberts Court has entered its tenth year, the Constitutional Accountability Center has released Roberts at 10: Roberts’s Quiet, But Critical, Votes to Limit Women’s Rights.  The newest installment in CAC’s Roberts at 10 series investigates how Roberts has approached women’s issues during his tenure as Chief Justice.  CAC points out that while there has been some progress on women’s issues in the past ten years, those victories have largely been in cases where there was little or no disagreement on the Court.  In cases that resulted in limiting workplace equality and reproductive freedom, however, the Court has typically been split 5-4 with Roberts joining the Court’s majority.

    The piece is best read in conjunction with previous installments, especially Roberts at 10: A Look at the First Decade of John Roberts’s Tenure as Chief Justice, which explains how Roberts’s position as Chief Justice allows him to influence the scope of Court decisions and the willingness of other justices to join the majority instead of write concurring opinions.

  • December 16, 2014

    by Caroline Cox

    Michael Paulson reports in The New York Times on a LGBT rights battle rising out of wedding vendors’ refusal to work on same-sex weddings.

    At The Atlantic, Conor Friedersdorf writes that a former Bush Administration attorney made comments suggesting CIA officers are at legal risk due to the recent torture report.

    Joanna Rothkopf reports in Salon on a new financial inequality report that reveals the wealth gap between white and black Americans is the largest in 25 years.

    At Bloomberg View, Noah Feldman criticizes the recent Supreme Court ruling in Heien v. North Carolina for creating a different standard for police and citizen behavior.

    Carrie Johnson and Marisa Penaloza of NPR discuss a judge’s regret over the human toll of mandatory minimum sentences.