March 2011

  • March 10, 2011
    Wisconsin state Republicans after discovering a way to pass a measure slashing pay and collective bargaining rights of public workers without the presence of Democratic lawmakers have hardly tamped down the ire building over Gov. Scott Walker's campaign to allegedly save the state from bankruptcy.

    The governor's bill, which was passed quickly by the state Senate last night, amounts to nearly an 8 percent cut in pay for state workers, the Wisconsin State Journal reports. The newspaper's Web site features a ticker updating the protests that have escalated at the capitol. Early this morning the ticker reported that state troopers were denying reporters access to the capitol. State Senate Democrats blasted the actions of the governor and Republicans.

    Sen. Bob Jauch told the newspaper the actions would escalate efforts to mount a recall of the Republican senators. "This was an act of legislative thuggery," Jauch said.

    SEIU International President Mary Kay Henry blasted Gov. Walker, saying in a statement that he had made it clear "to the people of Wisconsin - and the entire nation - the extent he will go in order to pay back billionaires such as the Koch Brothers and bad actor corporations that want to destroy the middle class."

    Henry continued, "From denying working people the right to have a voice, to failing to create the jobs that Wisconsinites so desperately need, Walker has proven time and again that his first priority is rewarding the Koch Brothers and corporate interests, not the people of Wisconsin."

    Recently, The New York Times reported that Charles and David Koch were among the "biggest contributors to the election campaign" of Walker.

    [image by Nathan Foster]

  • March 10, 2011
    Guest Post

    By Adam Winkler, professor of law, UCLA School of Law. This article is cross-posted at The Huffington Post.

    On Monday, the Tennessee legislature voted along party lines to join an interstate compact intended to exempt the state from having to follow the national healthcare law. The state's Republican governor is likely to sign the bill, and at least nine other states are considering similar action. Unfortunately for them, however, no interstate compact is going to free the states from the healthcare law.

    And, remarkably, proponents of the interstate compacts -- essentially contracts between two or more states -- are unwittingly helping President Obama's efforts to defend the law in court.

    Interstate compacts are just the latest in a growing line of futile efforts to overturn President Obama's signature piece of legislation, the Affordable Care Act. In January, House Republicans voted to repeal the law, although they knew President Obama would veto any such effort. Healthcare opponents also promoted state laws to "nullify" the federal law, despite the clear command in the U.S. Constitution that federal law is supreme over state law.

    As those efforts had no chance of working, one can only surmise that they were intended primarily as political theatre.

    Compared to these other actions, the interstate compact notion looks promising -- at least so long as one doesn't look too closely.

    Interstate compacts are commonplace contractual agreements that states use to handle regional problems. They are used to establish agencies and rules for transportation systems that traverse state lines (like the Metropolitan Area Transit Authority in and around D.C.), waterways between states (like the Port Authority of New York & New Jersey), and any number of other multi-state issues, from environmental protection to waste disposal to cross-border adoption.

    Such agreements are perfectly legitimate. In fact, the Constitution itself envisions them. Article I, section 10 of the Constitution provides, "No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State." If Congress consents, therefore, states may enter into binding contracts with other states.

    Healthcare opponents are encouraging states to enter into a compact that would exempt them and their residents from the demands of the Affordable Care Act, especially the requirement that most individuals have insurance. Yet such a compact faces the same insurmountable hurdle as the House Republicans' repeal effort back in January. Any such compact would need to be signed by the president.

  • March 9, 2011
    Former Deputy Attorney General Jamie Gorelick, one of the longest-serving in history, details parts of her remarkable career, including tackling prejudices long set in place by a male-dominated profession, in a "Legends in the Law," profile for Washington Lawyer.

    Gorelick, a partner at WilmerHale, served as Deputy Attorney General in the Clinton administration, recounted an early experience as the only woman attorney at a small law firm. On her first day Gorelick said the firm's managing partner assured her that she should feel comfortable at the firm and that she was welcome there. Then the managing attorney proceeded to tell her about the practice's "atmosphere." The managing attorney, Gorelick recounted, said the "guys call each other by their first names and the gals, meaning the secretaries, call the guys by their first names unless there is a client around, in which case they call them by their last names. As he talked about ‘the guys do this and the gals do that,' I asked him, What am I? He said, without skipping a beat, ‘Oh, you're a guy.' This was my first introduction to how odd a duck I was in this water. I had to prove to my colleagues at the firm and in the white collar litigation bar that I was capable of being a litigator."

    Before serving in the Justice Department, Gorelick (pictured at the 2007 ACS National Convention) was the general counsel for the U.S. Department of Defense, when the Clinton administration was struggling with the service of lesbian and gay men in the military. Regarding the development of "Don't Ask, Don't Tell," policy, which Congress and the Obama administration have repealed, Gorelick said it was due to "tremendous resistance in Congress to changing the policy toward gays, and the way in which the president announced it, without letting it percolate at DOD, ...."

    She continued, "I thought at the time, and General Powell has said this since, that ‘Don't Ask, Don't Tell,' was a way station. The senior military officers knew that they had gay service members around them, but the enlisted personnel and the mid-level personnel thought that there weren't any gays in the military. That was because, of course, you were discharged if you revealed that you were gay. That made the views about gay people highly distorted. It seemed inevitable to me that society would become more welcoming to gays."

    Regarding her work with former Attorney General Jane Reno, Gorelick described Reno as having an "enormous appetite and capacity for learning. She made decisions by really burrowing into issues. That meant that her decisions had great intellectual integrity because she really paid attention; she was her own quality control."

    The entire interview is available here.

  • March 9, 2011
    Guest Post

    By Martha F. Davis Associate Dean for Clinical and Experiential Education and Faculty Director of the Program on Human Rights and Global Economy, Northeastern University School of Law. Davis filed an amicus brief in Flores-Villar v. United States on behalf of Equality NOW, Human Rights Watch and other groups.
    As Americans mark the 100th anniversary of International Women's Day (IWD) on March 8, 2011, what better way to celebrate than eliminating the few remaining legal vestiges of women's historic second-class citizenship? And even better, why not do it in a way that helps men, too, by reaffirming their important role as parents and caretakers?

    There is no doubt that we've come a long way in a century. At the time of the first official IWD in 1911, women in the United States could not vote, were barred from serving in the military except as nurses, and lost their U.S. citizenship for the duration of the union if they married a foreign national. Now, of course, circumstances are much different. But there are some stubborn, lingering messages about women's civic roles. We can vote, but women are still barred from some combat positions in the military - positions that often serve as a step up to greater leadership roles. Women can enlist, but only men are required to register and participate in the Selective Service System, and are sometimes threatened with denial of educational loans if they fail to do so. Notably, while even Harvard Law School turned away the ROTC because of the military's discriminatory policies on gays, plain old sex discrimination in the military has not triggered such public outcry. There is tacit acceptance of the message that men are the primary warriors and heroes and that women's proper place is on the home front.

    This persistent stereotype also informs a venerable law currently being challenged before the U.S. Supreme Court in Flores-Villar v. U.S. Under that law, the U.S. citizen father of a foreign-born, out-of-wedlock child must jump through a series of hoops in order to transmit U.S. citizenship to his child, including providing proof that he resided in the U.S. for at least five years after his 14th birthday but before the child's birth. A U.S. citizen mother under the same circumstances must simply prove one year of residence at any time prior to the child's birth.

  • March 8, 2011
    Guest Post

    By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center
    Headlines are filled with reports of states repudiating the federal approach to hot button issues such as health reform and immigration. Clashes between federal and state law often culminate in a trip to the court house, because under the United States Constitution, state laws that conflict with federal statutes are preempted and thus invalid. Preemption law suits are as American as apple pie, and have been widely utilized for well over a hundred years by businesses and individuals on all sides of the political spectrum to enforce numerous federal laws.

    Yet, a case recently accepted by the Supreme Court has the potential to restrict drastically the availability of preemption and thereby vastly increase state powers at the expense of the national government. Maxwell-Jolly v. Independent Living Center ("ILC") and consolidated cases address the preemption of a California law by the federal Medicaid statute. California is asking the Court to rule in ILC that Medicaid providers and beneficiaries do not have a cause of action for their claim that the slashing of reimbursement rates for prescription medications and other services was preempted. The Court's decision in this case could be targeted to barring court access to uphold safety-net statutes which protect the neediest and most vulnerable individuals. Nevertheless, the Court's decision could have wide-ranging implications for laws involving the environment, employment, immigration, civil rights, food and drug safety, elections and much more.

    One argument advanced by California is that preemption challenges should not be permitted for statutes enacted under the Constitution's Spending Clause. These laws give states millions or even billions of dollars of federal funds in exchange for the states participating in federal programs or complying with federal rules. Medicaid is not the only Spending Clause statute. Indeed, in the seminal Spending Clause case of South Dakota v. Dole, the Court upheld the constitutionality of conditioning federal highway funds on states' adoption of the minimum drinking age of 21. Other major Spending Clause statutes include education laws, housing laws, food stamps, and civil rights laws prohibiting discrimination on the basis of race, national origin, sex, and disability.