ACSBlog

  • January 18, 2017
    Guest Post

    *In October, ACS released "What's The Big Idea? Recommendations for Improving Law and Policy in the Next Administration." With that next administration on the horizon, authors of the report are reviewing their recommendations in the ACSblog symposium: Updating The Big Idea.

    by K. Sabeel Rahman, Assistant Professor of Law, Brooklyn Law School

    As the incoming Trump administration prepares to take office, many Obama era policy initiatives find themselves in the crosshairs of the new administration and the Republican Congress. On the table are a variety of proposals including not only the headline proposed dismantling of the Affordable Care Act, but also measures that could undo the FCC’s net neutrality rules, further privatize the public school system and even voucher-ize parts of Medicare. These proposals represent more than just a pendulum swing away from government regulation to conservative free market principles. Rather, at stake in this debate is a much deeper issue about the nature of public goods and the determinants of economic opportunity and freedom.

    While laissez-faire political thought often portrays the market as a domain of economic freedom and opportunity, unsullied and unskewed by government interference, genuine economic freedom and opportunity require much more than the removal of government interference (even if such a thing were possible). Freedom is not just the absence of restraint; it is the affirmative capacity to pursue life choices and ends that each of us has reason to value. That capacity in turn depends on equal and universal access to foundational goods and services that make such economic opportunity and freedom possible. The underlying infrastructure of economic opportunity thus includes access to things like education, healthcare, labor protections from economic insecurity and the like. In the absence of these goods and services, individuals and communities alike are deeply insecure, vulnerable, unable to enjoy meaningful economic freedom and opportunity

    If the goal is to provide this kind of freedom for each of us to develop the lives and experiences we have reason to value, then the purpose of social policies must be understood in terms of enabling access to those goods, services and opportunities whose presence in turn enables that freedom—and whose absence narrows it. We can think of these as public goods in which our policies must invest. These public goods are not physical infrastructure like roads or bridges; they are a kind of “social infrastructure,” that make possible a wider array of stable, secure life pathways. Since these resources are critical enablers of a wide range of social uses and projects, they must be managed as a commons: open to use by all on principles of equal access and nondiscrimination, simple to identify and access without excessive or confusing barriers, designed to maximize these downstream uses and the spillovers and innovations that might result.

  • January 18, 2017
    Guest Post

    by Alison Siegler, Clinical Professor and Director of the Federal Criminal Justice Clinic at the University of Chicago Law School and Member of ACS Chicago Lawyer Chapter Board of Advisors

    Last week, law school faculty around the country filed a statement with the Senate Judiciary Committee expressing their opposition to Sen. Jeff Sessions’s nomination as attorney general of the United States. The letter was signed by 1,424 law school faculty members from 180 different law schools in all 49 states that have a law school and became part of the official congressional record for the confirmation hearing. At Sessions’s hearing on Jan. 10, Ranking Member Dianne Feinstein referred to the statement as a “pretty comprehensive” list of law professors and noted the geographic breadth of the signatories, before asking Sessions for his response to the statement.

    The faculty letter urges senators to reject the nomination, stating: “All of us believe it is unacceptable for someone with Sen. Sessions’s record to lead the Department of Justice.” The letter speaks of Sessions’s troubling civil rights record and also expresses deep reservations about his record in the areas of criminal justice, immigration, the environment, women’s rights and LGBTQ rights. “Some of us have concerns about his support for building a wall along our country’s southern border. Some of us have concerns about his robust support for regressive drug policies that have fueled mass incarceration. Some of us have concerns about his questioning of the relationship between fossil fuels and climate change. Some of us have concerns about his repeated opposition to legislative efforts to promote the rights of women and members of the LGBTQ community. Some of us share all of these concerns.” This letter echoes many of the same misgivings expressed in the Open Letter from Constitutional Law Scholars to President-Elect Donald Trump and the Open Letter from 1,060 Law Students to President-Elect Donald J. Trump, both released by ACS.       

  • January 18, 2017
    Guest Post

    by Bill Yeomans, Fellow in Law and Government at American University Washington College of Law

    The election of Donald Trump has thrown the federal bureaucracy into uncertainty and nowhere is that uncertainty felt more strongly than in the Civil Rights Division of the Department of Justice. Trump’s campaign invoked racism, misogyny, xenophobia and disregard for the rule of law – all directly at odds with the fundamental laws that the Division enforces. The nomination of Sen. Jeff Sessions for attorney general confirmed the worst fears of Division lawyers that, once again, it is in the crosshairs of an incoming administration that is hostile to its mission. Many who work there face a decision whether to stay or go.

    I know. I spent 26 years in the Department of Justice, starting in the Jimmy Carter presidency and running through the transitions to Ronald Reagan, George H.W. Bush, Bill Clinton and George W. Bush. I chose to stay in the belief that the work of combating discrimination remained essential and to challenge the new administration to adhere to the Division’s tradition of formulating its positions through reasoned, legal argument, rather than political fiat. I recognized both that the career attorneys – with their fidelity to the law and knowledge of the Department’s customs and traditions--presented the strongest impediment to radical, lawless change and that even in the most challenging times important work could be done. In the weeks since the election, I have been approached by career attorneys wondering whether the Division will remain a place where they can work. My answer is that it is an intensely personal choice, but that they should understand that they have an important role to play in pressing for continued enforcement of the law and against politically driven retreat. Indeed, the corps of dedicated career employees remains the principal bulwark against the threat of a lawless executive.

    Since its creation in the Civil Rights Act of 1957, the Civil Rights Division has increased opportunity for large segments of the population. It has expanded access to meaningful voting; desegregated police and fire departments; attacked school desegregation; opened housing markets; expanded access to employment and accommodations for people with disabilities; and prosecuted police officers for using excessive force, people who engage in hate motivated violence and those who traffic in human beings. 

  • January 17, 2017
    Guest Post

    by Nicole Huberfeld, Ashland-Spears Distinguished Research Professor of Law, University of Kentucky

    The Patient Protection and Affordable Care Act (also called Obamacare) has extended health insurance coverage to more than 20 million Americans and achieved historically low un-insurance rates, yet most do not know much about the law or why its dramatic measures were necessary. The ACA responded to a constellation of health care and health insurance failures, including that un-insurance had reached an historic high of more than 16 percent at the time of the 2008 election. Fewer and fewer employers offered health insurance as an employment benefit for more than a decade before President Obama was elected and those that did had significantly increased employee cost sharing over time. The long-standing American assumption that people who work have health insurance was no longer true.

    Further, the uninsured were concentrated among the working poor, who were not offered health insurance as an employment benefit or could not afford insurance that was offered. Though slightly more than half of Americans receive health insurance as an employment benefit, that is only meaningful for people earning more than the average income of about $51,000 per year. For people earning below 400 percent of the federal poverty level ($47,250), employers are significantly less likely to offer health insurance; part-time workers are even less frequently offered health insurance.

    Additionally, individual and small group health insurance markets have had such high prices as to be inaccessible. And, in every market, insurers used tools such as preexisting condition exclusions, caps on coverage and other discriminatory practices to eliminate subscribers deemed not healthy. While public financing covered the elderly in Medicare, for the poor, Medicaid has offered an incomplete safety net, only covering the “deserving poor”, which meant about 40 percent of low-income individuals. The nation’s millions of uninsured citizens sought treatment in emergency rooms, which offered a point of rescue but not a permanent source of access to care (and which was unsustainably expensive for hospitals).

  • January 17, 2017
    Guest Post

    by Thomas Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    On Thursday, Jan. 12, the Department of Justice (DOJ) and the Baltimore Police Department (BPD) entered into a consent decree whereby the BPD agreed to stipulated changes in the ways that it conducts policing in the city, specifically in communities of color. In August of 2016 the DOJ had released the results of its investigation into the BPD where it found that the BPD “engages in a pattern or practice of conduct that violates the First and Fourth Amendments of the Constitution as well as federal anti-discrimination laws. BPD makes stops, searches and arrests without the required justification; uses enforcement strategies that unlawfully subject African Americans to disproportionate rates of stops, searches and arrests; uses excessive force; and retaliates against individuals for their constitutionally-protected expression.”

    The following day, on Friday, Jan. 13, the DOJ announced the findings of its investigation into the Chicago Police Department (CPD) where it found that the CPD “engages in a pattern or practice of using force, including deadly force, in violation of the Fourth Amendment to the Constitution.” The DOJ and the city of Chicago “have signed an agreement in principle to work together, with community input, to create a federal court-enforceable consent decree addressing the deficiencies found during the investigation.”

    The DOJ has investigated over two dozen law enforcement agencies during the Obama administration and has entered into consent decrees with many of these departments after investigations typically revealed agency-wide deficiencies in training, supervision and internal investigative oversight. Most often the DOJ investigations found “pattern and practice” violations of constitutional, civil rights and civil liberties protections, as well as widespread instances of excessive force and unlawful stops, searches and arrests, most often in communities of color. Police departments in Los Angeles, Miami, Pittsburgh and Detroit have been under federal oversight in recent years, as well as in Albuquerque and Cleveland.