ACSBlog

  • March 1, 2017
    Guest Post

    *This piece originally appeared on the Campaign Legal Center's blog

    by Anna Bodi, Partner Legal Fellow, Campaign Legal Center

    Texas has the nation’s strictest photo voter ID law in the nation, SB 14, which was found by three federal courts to disenfranchise more than half a million voters.

    The Campaign Legal Center has litigated the case challenging that law for several years now, on behalf of Texas voters and the League of United Latin American Citizens. The Department of Justice, throughout this process, previously sided with the plaintiffs’ claims that the law has a discriminatory purpose and discriminatory effects.

    But that is no longer the case. The DOJ notified CLC yesterday that after many years of vigorously challenging Texas’s voter ID law, it was dropping its claim that the law was enacted with the intent to discriminate.

    The move comes less than a week after the DOJ, in a joint motion with the state of Texas, unsuccessfully pushed to delay consideration of SB 14’s discriminatory purpose, relying on the mere introduction of a new bill, SB 5, in the Texas State Legislature to amend the Texas voter ID bill.

    The DOJ’s sudden reversal in position invites the question: What has changed?

  • February 28, 2017
    Guest Post

    by Jennifer Bird-Pollan, James and Mary Lassiter Associate Professor of Law, University of Kentucky College of Law

    Economic inequality can mean a variety of different things, and can be measured in a variety of ways. One might be concerned about absolute inequalities of income or wealth, where, for instance, some members of a society have high incomes, and others have low incomes, or no income at all.  One might also be concerned about inequality of opportunity, where, a society does not provide equal chances for all to achieve success, often because of factors outside of an individual’s control, such as that person’s race, gender, or geographic location. However you define or measure it, there is general consensus that economic inequality in the United States is at historically high levels. A variety of factors have contributed to the rise in inequality. Despite the all-American belief in the story of the self-made man and the value of pulling yourself up by your own boot straps, it has become clear over the past few decades that the American tax and transfer system does very little to facilitate upward economic ability in the United States.

    Using the federal government to address economic inequality requires two components: the government must raise tax revenue from those with wealth and/or income, and then use it to fund programs that support the lowest income members of society. Unfortunately, our government has been resistant to both of those steps in the past few decades. The highest marginal individual income tax rate was as high as 94 percent in the middle of the 20th Century, while in 2017 the highest marginal tax rate is 39.6 percent.  These numbers don’t tell the whole story, since when the highest rate was over 90 percent, it only applied on amounts earned over very high income thresholds (approximately $2.5 million in today’s dollars). By contrast, today’s top marginal rate applies to income over about $400,000. Nonetheless, there has been an overall reduction in the effects of the individual income tax on high-income earners. While the individual income tax is the largest source of revenue in our current tax system, other taxes administered by the federal government have been cut in recent years as well. The federal wealth transfer taxes, including the gift tax and the estate tax, applied to all transfers over $675,000 as recently as 2001. Under current law, individuals can transfer $5,450,000 ($11,900,000 for a married couple) to their heirs without paying a penny of wealth transfer tax. And while our corporate tax rate remains at least nominally relatively high (35 percent) when compared internationally, changes to the tax code that allow for nearly indefinite deferral of corporate tax obligations, as well as an evolution of the kinds of entities taxpayers use to do business significantly reduce the amount of revenue raised through the corporate tax system. In other words, nearly every means the government has to raise tax revenue from the high income and high wealth members of society has been scaled back, reducing the ability of the government to fund the kinds of programs that might fight economic inequality from the bottom up, by funding programs in education, childhood poverty fighting measures, or health programs, just to name a few.

  • February 28, 2017
    Guest Post

    by Sam F. Halabi, Scholar, O’Neill Institute for National and Global Health Law, Georgetown University and Associate Professor, University of Missouri School of Law

    President Donald Trump is expected to devote at least part of his speech this evening to his vision for the replacement of Obamacare. It is therefore a good time to take stock of what alternatives GOP legislators have floated so far and what might end up getting stitched together to form the outline of such a vision. 

    On January 23, Senators Susan Collins (R-Maine) and Bill Cassidy (R- La.) introduced the Patient Freedom Act, which would let states that had opted into Obamacare keep their expansion dollars or, alternatively, offer subsidies for states to create an auto enrollment system for catastrophic coverage plans with bare bones preventative services also covered. Federal subsidies would be based strictly on enrollment, not income, and states could use federal subsidies to prefund health savings accounts that would cover some (no one knows how much) of the gap between $0 and the high deductibles charged under catastrophic plans. People could, of course, opt out of coverage.

    On January 25, Senator Rand Paul (R-Ky.) introduced his Obamacare Replacement Act which would provide tax credits for health savings accounts, repeal the individual mandate and minimum coverage conditions, and loosen Obamacare’s already existing mechanism for “selling insurance across state lines.”  Paul’s vision, consistent with his libertarian outlook, is to liberalize the individual insurance market so that consumers can purchase policies tailored to their needs or that consumer or other affiliated groups may leverage bargaining power through negotiations with insurance providers. 

    On February 10, a leaked version of a House bill (apparently without a catchy title), would repeal the individual mandate, subsidies based on people’s income, and all of the Obamacare taxes. It would reduce Medicaid spending and give states money to create high-risk pools for certain categories of people with pre-existing conditions.   Starting in 2020, the federal government would extend tax credits based on age, not income. Insurers would be allowed to charge much more to cover older versus younger persons. Like Paul’s plan, it would eliminate minimum coverage requirements and, of course, defund Planned Parenthood. It would be paid for by limiting the tax deduction for generous group healthcare plans. Analogously to the individual mandate, it would provide a penalty for failing to maintain continuous coverage.

  • February 27, 2017
    Guest Post

    by Steve Sanders, Associate Professor of Law, Indiana University Maurer School of Law

    Donald Trump last week rescinded the Obama administration’s guidance to schools concerning their obligations to transgender students. This change in federal policy now requires the Supreme Court to decide whether and how to deal with its first major transgender rights case, which involves a transgender Virginia high school boy, Gavin Grimm.   

    We should hope that the Court decides to abstain and to dismiss the case as improvidently granted. That outcome would preserve Grimm’s victory in the lower court and avoid the potentially damaging results of the justices entering this fray too soon. Gavin Grimm’s achievement is too important – yet too fragile – to risk it becoming a vehicle for making bad law that could harm large numbers of transgender students now and in the future. 

    Unlike the four major gay/lesbian rights victories the Court handed down between 1996 and 2015, culminating in nationwide marriage equality, this case, Gloucester County School Board v. G.G., is not about grand constitutional principles like equality and liberty. The Trump administration’s action removed the primary issue in the case, which was one of administrative law: whether lower courts should have deferred to the Obama administration’s view that Title IX, the federal statute that was originally enacted to afford women equal opportunity in education, requires schools to allow transgender students to use restrooms and locker rooms that are consistent with their gender identity rather than their biological sex. 

    With the administrative law question now moot, the Court could still decide the case as a matter of statutory interpretation: that is, regardless of the executive branch’s shifting policy views, how should Title IX apply to transgender students’ ability to use sex-segregated facilities? But by asking the parties for their views on how to proceed, the Court last week signaled it may at least be thinking about dismissing the case.

    The Court should do so. Grimm won in the Fourth Circuit, but his lawyers from the ACLU opposed certiorari and argued that it is too soon for the Supreme Court to authoritatively settle the Title IX question one way or the other. As other courts of appeals consider similar cases, Grimm’s attorneys wrote, those courts “will produce a consensus or a circuit split. In either event, the issue would benefit from further exploration in the lower courts.”

    There is a strong body of case law in the lower federal courts that a statute passed to combat sex discrimination can also be used to combat discrimination on the basis of gender identity. But almost all these cases involved adults in the context of employment discrimination. Grimm’s case is the first involving transgender students, schools and restrooms.

  • February 27, 2017
    Guest Post

    by Joseph Blocher, Professor of Law, Duke Law School

    On February 21, the U.S. Court of Appeals for the Fourth Circuit rejected a Second Amendment challenge to Maryland’s ban on military-style “assault weapons” and detachable large-capacity magazines. The 10-4 en banc decision in Kolbe v. Hogan is a victory for gun regulation advocates. But it is also a case about alternatives: the court’s two alternative holdings, and the significance of the alternative “Arms” left available by Maryland’s statute.

    The central jurisprudential debate will be whether Kolbe is faithful to the Supreme Court’s landmark decision in District of Columbia v. Heller, which held that the Second Amendment protects an individual right to keep and bear arms for private purposes, the “core” of which is self-defense. Heller also emphasized that a potentially wide range of gun regulation is constitutional, including bans on “dangerous and unusual” weapons—a class, the Court suggested, that might be equated with those not in “common use” for lawful purposes.

    In the decade since Heller, lower courts have almost unanimously adopted a two-part doctrinal test to evaluate the constitutionality of gun regulations. The first part of that test asks whether the relevant gun, person, or action falls within the scope of the Second Amendment—not all of them do, just as not all speech acts count as “speech” for purposes of the First. Felons, the mentally ill, and weapons of mass destruction generally fall entirely outside the scope of the right. If the Second Amendment is implicated, the second question is whether the regulation’s burdens are justifiable.

    The circuit courts have uniformly upheld assault weapons bans, but they’ve typically done so using the second part of the test—that is, by assuming that assault weapons are constitutional “Arms,” but that they can nonetheless be banned. Kolbe is notable because the court relied on both parts of the test, holding that the regulated guns and magazines fall outside the scope of the Second Amendment, and also that the ban would be constitutional even if they didn’t.