• March 9, 2015
    Guest Post

    by Thomas Nolan, Associate Professor of Criminology and Director of Graduate Programs in Criminology at Merrimack College

    The report from the Department of Justice’s Civil Rights Division on the Ferguson, Mo. Police Department is a damning indictment of an out-of-control, lawless, and racist police department gone rogue.  Given the context and history of policing in Ferguson provided in the DOJ investigation, it seemed inevitable that an unarmed African American teenager would be shot dead by a white Ferguson police officer following a confrontation over a “Manner of Walking in Roadway” offense (or theft of cigarillos if that is to be believed).  One is tempted to question how it didn’t happen sooner than August 9, 2014.

    The Ferguson Police Department (FPD) arrested 460 individuals for outstanding warrants between October 2012 and October 2014: 96 percent of those arrested were African American.  According to the DOJ report, from 2011 to 2013, African Americans accounted for 95 percent of Manner of Walking in Roadway charges, 94 percent of Failure to Comply charges, 92 percent of Resisting Arrest charges, 92 percent of Peace Disturbance charges, and 89 percent of Failure to Obey charges.  “Despite making up 67 percent of the population, African Americans accounted for 85 percent of FPD’s traffic stops, 90 percent of FPD’s citations, and 93 percent of FPD’s arrests from 2012 to 2014.”  The race-based enforcement tactics and strategies employed by the FPD have a disparate impact on African Americans that is violative of the Equal Protection Clause of the Fourteenth Amendment.

    The DOJ report also found that the FPD has engaged in a “pattern and practice of constitutional violations (that primarily target African Americans) in stopping people without reasonable suspicion, arresting them without probable cause, and using unreasonable force.”  The FPD’s policies and practices were found to routinely violate the Fourth Amendment in racially profiling African Americans and disproportionally singling them out for “pedestrian checks,” “Failure to Comply,” and illegal “Stop and Identify” offenses.  DOJ found that the FPD consistently uses excessive force in violation of the Fourth Amendment and that African Americans accounted for almost 90 percent of the use of force incidents from 2010 to 2014.  FPD used force involving a canine bite 14 times during this time period and in all incidents the person bitten was African American.   

    The FPD also engages in a standard (and unlawful) practice of arresting individuals for engaging in activities that are protected under the First Amendment to the Constitution: “people are punished for talking back to officers, recording public police activities, and lawfully protesting perceived injustices.” 

  • March 7, 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.

    During the Supreme Court oral argument in King v. Burwell, the challengers persisted in claiming that the language of the Affordable Care Act is absolutely clear, that the principle of constitutional avoidance, as well as Chevron deference and any other relevant interpretive presumptions are unavailing because there is one and only one possible interpretation of the key provision at issue, Section 36B of the Internal Revenue Code.  That is in fact what the challengers must show—that their reading of the statute to deny subsidies in States with Federal Exchanges is incontrovertible. 

    But four Justices (apparently), the IRS, the Solicitor General, 22 States, and leading academic experts in statutory interpretation applying the definitions in the Act have read this same language to mean that tax subsidies are available in all States.  They have drawn this conclusion from the text of the Act itself, not by rewriting the language to promote the statutory purpose, but by giving it what they have concluded is a reasonable—in fact, compelling—interpretation.  Of course, the fact of a dispute regarding the meaning of statutory provisions does not by itself show the issue to be contestable.  But here, there is a critical mass of able, respected readers of the statute who differ with the challengers’ conclusion.  To label the interpretation by these readers as impossible, at odds with the English language, or nonsensical is to deny either their literacy or their candor.  Neither is in doubt. 

    As Justice Kennedy suggested during the argument, the clarity of the statute is also measured against the constitutional requisites of cooperative federalism.  That is another reason the Government should prevail in King.  As the challengers read the law, residents of States that fail to set up insurance Exchanges do not receive tax subsidies to help them afford health insurance, but those States remain subject to the insurance market reforms requiring insurance companies to offer insurance without regard to preexisting conditions and to price insurance based on community characteristics rather than the individual customer’s health situation.  If adopted, the challengers’ interpretation would send insurance markets in those States into a death spiral and impose hardships on millions of people. 

  • March 6, 2015
    Guest Post

    by Timothy S. Jost, the Robert L. Willett Family Professor of Law, Washington and Lee University School of Law.

    *This piece originally appeared on The Huffington Post.

    One of the Red Herring flopping about on the deck of King v. Burwell is the analogy of the territorial exchanges. The central legal question of King v. Burwell is whether the federally facilitated fallback exchanges created by section 1321 of the Affordable Care Act can be the "Exchange established by the State under section 1311" mentioned in section 1401 of the ACA, which authorizes the grant of premium tax credits. The plaintiffs say it cannot be--only a state-operated exchange can be an "Exchange established by the State." The federal government, on the other hand, asserts that under section 1321, if a state that elects not to establish the Exchange it is required to establish under section 1311, the federally facilitated exchange becomes "such Exchange" with all the powers and authorities of the state exchange, including the authority to grant premium tax credits.

    Section 1323 of the ACA creates a third kind of exchange, the territorial exchange. This section provides:

    (a) IN GENERAL.--A territory that--(1) elects consistent with subsection (b) to establish an Exchange in accordance with part II of this subtitle and establishes such an Exchange in accordance with such part shall be treated as a State for purposes of such part and shall be entitled to payment from the amount allocated to the territory under subsection (c) . . .

    The plaintiffs argue that 1) this section demonstrates that Congress knew how to explicitly state its intention when it meant for an exchange that was not a state exchange to be treated like a state exchange (and explicitly did not do so when it authorized federally facilitated exchanges), and 2) that the phrase "such Exchange" in 1321 did not make the federally facilitated exchange into a state exchange for purposes of section 1401, just as the phrase "such an Exchange" did not make the territorial exchanges into state exchanges.

    This all sounds neat, but in fact shows a profound lack of understanding as to how the Affordable Care Act works, and in particular its provision for the territories.

    The territories--for these purposes Puerto Rico, The U.S. Virgin Islands, American Samoa, Guam, and the Northern Mariana Islands--have a unique status. For some purposes they are treated like states under American law, for other purposes like foreign countries. This is true under the ACA.

  • March 6, 2015

    by Caroline Cox

    The GOP-controlled Senate is still stalling on judicial nominations. Jonathan Bernstein writes at Bloomberg View that this refusal to allow positions to be filled “is an abuse of power.”

    People for the American Way finds that the Senate is moving President Obama’s nominees much slower than the Democrat-controlled Senate moved President Bush’s nominees in the last two years of his presidency.

    Steve Benen writes at MSNBC that Senate Republicans are beginning to consider filibuster reform despite previously embracing the tactic.

    There are currently 53 vacancies, and 21 are now considered judicial emergencies. There are 16 pending nominees. For more information see

  • March 6, 2015

    by Caroline Cox

    Former Alabama Supreme Court Chief Justice Sue Bell Cobb writes for Politico on how the influx of money into the American judicial system is making it harder to have fair courts. Justice Cobb also provided the introduction for the 2013 ACS report Justice at Risk.

    Georgetown law school professor David Cole examines newly declassified documents that shed more light on the use of turtore in the "war on terror" during the administration of George W. Bush. In an extensive piece for NYRblog, Cole says the "declassified CIA documents depict an agency whose leadership knew that what it was doing was wrong, and that therefore was never fully confident that the authorizations it received from the executive branch were enough -- even though they came from the president, the vice-president, the attorney general, and the national security adviser, as well as from the senior lawyers in all of those offices."

    Coverage of King v. Burwell continues with Greg Sargent discussing in The Washington Post how it is unlikely that Congress could provide a legislative fix if the Court decides to invalidate the Affordable Care Act subsidies.

    Oliver Roeder argues at Five Thirty Eight that based on Wednesday’s oral arguments the chances of the Supreme Court saving the Affordable Care Act are looking up.

    At The Economist, Steven Mazie dissects the oral arguments and considers how the Court will split on the case.

    Marty Lederman provides some insight into the argument of coercion of the states and the federalism canons in King v. Burwell at Balkinization.