• February 15, 2016
    Guest Post

    by Neil J. Kinkopf, Professor of Law, Georgia State University College of Law; Professor Kinkopf is the faculty adviser for the ACS Student Chapter at GSU College of Law

    Starting almost immediately after the reports of Justice Scalia’s death, there has been controversy over whether President Obama can make a nomination to fill the vacancy and, if so, whether the Senate should consider a nomination given that it is a presidential election year.  President Obama has announced his intention to make a nomination and Senate Majority Leader Mitch McConnell has expressed his opposition, asserting that “[t]he American people should have a voice in the selection of their next Supreme Court justice.  Therefore, this vacancy should not be filled until we have a new president.”

    History clearly shows that President Obama is within his constitutional authority in making such a nomination.  History also supplies virtually no support for Senator McConnell’s plan to refuse to consider any Obama nomination.  I have collected the relevant precedents in four tables appended to the end of this post.

    The President’s nomination power.  The text of the Constitution grants the President the authority to nominate without qualification (except that his nomination does not blossom into an appointment without the advice and consent of the Senate followed by a commission that has been validly signed and sealed).  This would seem to indicate, though not expressly, that the President may exercise the power at any time while in office without exception.  Practice confirms this.  Presidents have made 22 nominations to fill Supreme Court vacancies during an election year.  In addition, Presidents have made 13 lame duck nominations – nominations made after an election had chosen a new President-elect but before that new President-Elect was inaugurated. 

    The Senate’s Advise and Consent Role.  “Delay, delay, delay.”  This is what presidential candidate Donald Trump urged the Senate to do during Saturday night’s debate.  Senator McConnell expressed the position more artfully, linking it to democratic principles.  Of course, the incumbent President was elected to make nominations and the incumbent Senate was elected in part to perform the constitutional “advise and consent” role.  Again, practice is instructive.  In none of the 36 instances cited above does it appear that the Senate refused to consider a presidential nomination on the grounds that no nomination should be made.  Indeed, the President’s election year nominee was confirmed in 11 of 22 cases.  (This success rate is skewed by President John Tyler, who nominated 3 individuals seven separate times during the 1840 election year.  None of the three was ever confirmed.  Discounting this episode, Presidents were successful in 11 of 15 cases.)   Of the 11 nominations made by lame duck Presidents, 7 were confirmed.  This should stand as powerful practical evidence that nominating and acting on a nomination in proximity to an upcoming presidential election does not offend the principle that the Supreme Court nominations should be accountable to the people. 

  • February 12, 2016
    Guest Post

    by J. Mijin Cha, independent policy researcher and analyst; fellow, Cornell University Worker Institute; adjunct professor, Fordham University School of Law

    As the crisis in Flint, Mich., further unfolds, the depths to which officials ignored warning signs and allowed the city’s residents to drink poisoned water are astonishing. Recently released emails show local and state officials knew what was happening much sooner than they let on and were more concerned with shifting blame than fixing the problem. As a result, months went by without residents knowing they were exposed to lead, a toxin that has no safe level of exposure and causes severe developmental and physical disabilities.

    The majority of Flint residents are African American, and nearly 42 percent live in poverty. In contrast, just 14 percent of all residents in Michigan are African American, and the state’s poverty rate is less than half that of Flint. For decades, Flint residents have been exposed to a disproportionate amount of environmental pollution, so much so that residents have filed complaints with the Environmental Protection Agency (EPA) that the amount of pollution they are forced to bear violates their civil rights. The demographics of Flint combined with the city’s disproportionate environmental burden make it a classic case of environmental racism.

    Environmental racism is the disproportionate placing of hazardous waste and polluting industries near communities of color. In addition to several previous studies that found race was the number one factor in the siting of commercial hazardous waste facilities, new research found that communities of color and low-income communities are deliberately targeted for hazardous waste siting. Led by researchers from the University of Michigan and the University of Montana, this study is the first national-level environmental justice study to conduct longitudinal analyses using distance-based methods. The results of the study confirm that race and class determine the siting of hazardous waste sites.

    The residents of Flint are all too familiar with the role that race and class play in locating polluting industries. There are at least 227 environmentally noxious facilities throughout the community. Residents have been fighting against these facilities with little success for decades. In 1994, advocates in Flint filed a Title VI administrative complaint with the EPA against a nearby power plant in Genesee. The EPA, like every federal agency, must abide by Title VI of the 1964 Civil Rights Act and ensure that recipients of federal aid do not discriminate on the basis of race, color or national origin.

  • February 12, 2016

    by Nanya Springer 

    The IRS awarded Karl Rove’s “social welfare” group, Crossroads GPS, tax-exempt status Tuesday, reports Justin Miller at The American Prospect. Groups like Rove’s exploit “the lack of enforcement from the IRS and the Federal Election Commission to give cover to high-dollar donors who want to remain anonymous,” he says.

    Also in The American Prospect, Eliza Newlin Carney investigates the pitfalls of giving political parties the same freedom to raise unrestricted, high-dollar contributions that super PACs and other outside groups currently enjoy.

    In The Atlantic, J. Weston Phippen reports that Officer Peter Liang has been found guilty of manslaughter and official misconduct by a New York jury for the shooting death of Akai Gurley.

    Sara Sternberg Greene at The Marshall Project discusses her forthcoming study that examines why low-income individuals–and low-income African Americans in particular‒mistrust the civil justice system, and the consequences of that mistrust.

    Laura McKenna examines Ill. Gov. Bruce Rauner’s proposal for a state takeover of Chicago’s struggling public school system in The Atlantic.

  • February 12, 2016
    Guest Post

    by Natalia Nazarewicz, Class of 2018, Yale Law School

    “If Flint were rich and mostly white, would Michigan’s state government have responded more quickly and aggressively to complaints about its lead-polluted water?” (New York Times)

    “Was the city neglected because it is mostly black and about 40 percent poor?” (CNN)

    On February 4, the Yale Law School chapter of ACS, in partnership with the Black Law Students Association and the Yale Environmental Law Association, hosted a dinner discussion, “The Flint Water Crisis and Environmental Racism,” to examine the events in Flint, Mich., from a critical race theory perspective. Forty students from the law school, School of Forestry & Environmental Studies, and School of Public Health took part in the conversation.

    Visiting Professor Khiara M. Bridges moderating a discussion on the Flint water crisis and environmental racism

    Visiting Professor Khiara M. Bridges launched a lively, hour-long discussion by putting the Flint water crisis in context: Activists and academics have been aware of a relationship between race, income and risk of exposure to pollutants since the 1970s, and even the Reagan administration knew that environmental hazard sites were predominantly located in nonwhite neighborhoods. Although the link between environmental hazards and race persists even when controlling for poverty, politicians have been loath to acknowledge race as a factor.

    The crisis in Flint happening now is neither new nor unique, Bridges noted. The residents of Chester, Pa., a small city with a low-income African American population, have been in litigation since the 1990s to stop the proliferation of waste treatment plants and other industrial hazards that process toxins from the surrounding, more affluent and white communities. And on the global scale, corporations seeking to avoid U.S. environmental regulations regularly send waste to other countries—largely poor and nonwhite—causing significant health effects and environmental degradation. Looking at such environmental injustice through a critical race theory lens is helpful, Bridges said, as it helps explain how we arrived at a certain point and helps inform our responses to it.

    A number of students highlighted the link between lead exposure in utero or during childhood and subsequent learning disabilities and behavioral problems, concerned that African American children, who already face stereotypes in school as “difficult,” could be hampered for decades through their exposure to Flint’s water. “We need to acknowledge the behavioral and mental effects of lead on the children of Flint as a population-wide structural problem,” Bridges noted, “without individualizing the ‘bad behavior’ onto specific children.”

    Lead poisoning is long-lasting and irreversible, and the effects could be felt in Flint for decades. “This goes beyond the school-to-prison pipeline,” remarked Shannon Prince, JD ’17. “This is like a placenta-to-prison pipeline.”

  • February 12, 2016
    Guest Post

    by Robert A. Sedler, Distinguished Professor of Law, Wayne State University

    Flint, Michigan, is a city in decline. Formerly called “Buick City” because of the extensive GM Buick operations there, it has suffered a significant loss of population and a substantially reduced tax base as GM has shuttered most of its plants in the city. It now has a population of 99,000, close to two-thirds of whom are African American, and over 40 percent of whom are below the poverty level. With the substantially reduced tax base and the resulting loss of revenue to support municipal services, it is not surprising that the city found itself in a “financial emergency,” leading to the 2011 imposition of a state-appointed emergency manager in accordance with the Michigan financial emergency law. Under that law, the city’s finances and all matters relating to financial management are controlled by the emergency manager with only limited input from the city’s elected officials.

    Most of the facts relating to the Flint water crisis are probably known to the readers of this blog, so I will just restate a few here. The Flint water crisis began in 2014 after the Flint City Council, at the urging of the emergency manager and state officials as a purported cost-cutting measure, had voted to discontinue purchasing the city’s water supply from the City of Detroit. Instead it would purchase its water, beginning in 2016, from a newly formed water authority and in the interim would use the Flint River as the source of water for the city. The Michigan Department of Environmental Quality (DEQ) assured the city’s residents that the water from the Flint River was safe to drink. But it wasn’t. DEQ did not require the city to provide corrosion-control treatment to prevent lead from leaching into the pipes, and the city didn’t do so. Lead did leach into the pipes, and Flint residents soon complained about the color and smell of the water and rashes that they had been developing. For a substantial period of time, DEQ officials continued to deny that there was any problem with Flint’s water. It is was only after a study by a doctor in Flint showed high blood levels in Flint children that the governor and state officials acknowledged the problem, and in October 2015, the governor announced that he would switch back to the Detroit water system. Recriminations and firings followed, but the Flint water crisis continues.