• June 21, 2012

    by Jeremy Leaming

    Unless the Department of Justice and civil rights groups are able to block or greatly minimize Florida’s onerous new restrictions on voting and kill the state’s tawdry attempt to purge voter rolls, the constitutional right to vote for many will face serious obstacles in the sunshine state.

    Florida is by no means the only state bent on making the right to a vote a major pain. Wisconsin, South Carolina, Texas, and other Republican controlled states have been working feverishly to ensure that turnout among Latino voters, African American voters, low-income voters, the elderly, and college voters is greatly reduced in this year’s general election. Because Florida is deemed a swing state by political reporters, it garners more attention than some of the other state actions. But Fla. Gov. Rick Scott has also helped attract attention with his staunch defense of the voter suppression tactics.

    The DOJ and a string of civil rights groups, such as the Advancement Project, the Brennan Center for Justice, NAACP Legal Defense Fund, the League of Women voters, and others, are fighting the purge and the state’s onerous new voter restrictions.  

    Co-Director of the Advancement Project Judith Browne blasted Gov. Scott’s purge as a partisan effort to “suppress the vote.”

    Ryan P. Haygood, director of the Political Participation Group at NAACP Legal Defense Fund, in a press statement about a lawsuit challenging changes to Florida’s voting laws, said his group is battling an attempt to “discourage political participation” especially of the state’s minority voters.

    “Implementation of these additional discriminatory changes to Florida’s voting laws would be devastating for Black and other minority voters in the state,” Haygood said.

    The groups’ efforts may irk the state’s right-wing politicians and their apologists in the media, but they are likely the only hope for salvaging the right to vote for scores of Latinos, African Americans, the elderly and many others.

    The Brennan Center for Justice and the League of Women Voters, among other groups, have sued to scuttle portions of Florida’s new voter suppression law, such as the rigid requirements on voter registration drives and stringent requirements for voter identification. As noted here they have had some success with a federal judge blocking the provision against third-party voter registrations.

  • April 6, 2012
    Guest Post

    By Laura Abel, Deputy Director, National Center for Access to Justice. This piece is cross-posted at NCAJ’s blog.

    The Department of Justice has released startling evidence that language barriers are leading to serious injustices in courts in North Carolina. In a March 8 letter, DOJ warned North Carolina that its ongoing failure to provide court interpreters in civil cases, and in some criminal cases, violates the federal Civil Rights Act, which bars courts and other recipients of federal funding from providing worse services to people on the basis of English language ability.  

    DOJ reports that prosecutors in Wake and Durham counties ask people with limited English proficiency to plead guilty and then, assuming the role of “interpreters,” convey the guilty pleas to the courts. A judge relying solely on “prosecutorial interpreting” cannot know whether the person is even aware that a guilty plea is being entered, much less whether he understands the charges and consequences. When the federal government then deports the person, it cannot know whether it is deporting an innocent person. 

    The quality of justice is equally in doubt in civil cases. In 2010, a mother in Wake County lost permanent custody of her children after a trial in which she struggled to understand basic facts because she had limited command of the English language. Although she told the judge about her language difficulty, the court provided no interpreter. She also had no lawyer to help. Communication was so poor that at the end of the case she did not even understand that the judge’s ruling would cause her to lose her children.

  • January 6, 2012

    by Jeremy Leaming

    The Obama administration’s signature domestic achievement, the Patient Protection and Affordable Care Act, which requires many people to purchase health care coverage in 2014, is a reasonable and constitutional means to provide millions of uninsured with health care coverage, the Department of Justice argues in a brief lodged today with the Supreme Court.

    The brief “arguments track the Obama administration’s arguments before lower courts,” Brian Beutler reports for TPM, which also provides access to the 130-page document.

    As Beutler notes, the DOJ explains why the law’s so-called individual mandate is a constitutional means to help millions of Americans afford health insurance. The law bars insurance companies from denying coverage or charging more to people who have pre-existing medical conditions. For that provision of the law to work, however, the law must require individuals who can afford health insurance to obtain minimum coverage or pay a penalty via their annual income tax returns.

    The DOJ’s brief argues that the law is a permissible regulation under its constitutional authority to regulate commerce and its taxing power.

    The federal government already regulates the health care market – Medicare and Medicaid are examples. However, millions of people, because of a lack of additional regulation have been unable to afford health care insurance or been denied it because of preexisting conditions.

    The DOJ argues that the law’s so-called individual mandate will bridge the gap.

    “The uninsured shift tens of billions of dollars of costs for the uncompensated care they receive to other market participants annually,” the brief states. “That cost-shifting drives up insurance premiums, which, in turn, makes insurance unaffordable to even more people.”

  • August 2, 2011

    by Jeremy Leaming

    As noted in this piece from The New York Times, Maryland has been one of the few states to enact a law that is helpful, rather than harmful, to immigrants. Now a group of students, teachers, and voters are banding together in an attempt to save the Maryland Dream Act, which was enacted earlier this year and would allow immigrants, including undocumented immigrants, the ability to attend state schools at in-state tuition rates. The law, as noted by The Times, applies only to those immigrants who have paid their taxes and graduated from state high schools.

    The law, however, has been blocked by opponents who supposedly gathered enough signatures to put it before voters on the 2012 ballot. The group of Maryland students, teachers and the immigrant advocacy group CASA de Maryland, in a lawsuit lodged yesterday argues that too many of the signatures that helped pave the way for the law to be put before voters are invalid.

    The lawsuit, according to a CASA de Maryland press statement, charges that “more than 50,000 of the signatures turned in by petition sponsors and found valid by the Board [of Elections] were actually invalid under Maryland law.” The group’s lawsuit, filed by attorneys from Arnold & Porter LLP and Sandler, Reiff, Young & Lamb, P.C., also charges that the Board’s certification “suffers from an even more fundamental problem. Because the law directly provide for expenditure of state funds for a state government function, it cannot be referred to a referendum at all under the Maryland Constitution.”

    Joseph Sandler of Sandler, Reiff, Young & Lamb, P.C., said, “This law was approved by our elected representatives and is not the type of law subject to a referendum. In any event, through a painstaking line-by-line review of the signatures submitted to the Board, our team of lawyers and community volunteers discovered that the petition sponsors fell far short of turning in enough valid signatures to qualify this for the ballot.”

    Kim Propeack, a lawyer with CASA de Maryland, told the newspaper, “If one of the most popular immigrant issues in one of the bluest states does not win, that would be a very bad sign.”

    In Alabama, the U.S. Department of Jusitce has taken action to block a particularly onerous anti-immigration law from taking effect, TPM reports. The DOJ lodged a lawsuit yesterday against the law arguing that it is constitutionally suspect.

    In a press statement about the lawsuit, the DOJ states, “Alabama’s law is designed to affect virtually every aspect of an unauthorized immigrant’s daily life, from employment to housing to transportation to entering into and enforcing contracts to going to school. H.B. 56 further criminalizes mere unlawful presence and, like Arizona’s law, expands the opportunities for Alabama police to push aliens toward incarceration for various new immigration crimes by enforcing an immigration status verification system.”

    The DOJ’s lawsuit asserts that “while the federal government values state assistance and cooperation with respect to immigration enforcement, a state cannot set its own immigration policy, much less pass laws that conflict with federal enforcement of the immigration laws.”

    At the  a panel of constitutional law and immigration policy experts discussed the tension between federal and state efforts to address immigration issues. Video of that discussion is available here.

  • June 9, 2011
    Guest Post

    By Simon Lazarus, Public Policy Counsel to the National Senior Citizens Law Center, which is counsel to respondent Independent Living Center in the case discussed in this post, supporting beneficiaries’ right to challenge state violations of spending clause statutes.

    On May 26 – seven business days before President Obama’s nominee for Solicitor General, Associate White House Counsel Donald Verrilli, was confirmed by the Senate – Acting Solicitor General Neal Katyal filed an amicus curiae brief in a Supreme Court case, Douglas v. Independent Living Center, asserting that beneficiaries of Medicaid and other safety net laws should no longer be permitted to request federal courts to “preempt” – i.e., invalidate – state laws that violate conflicting federal legal requirements.  That such a position could be taken in the name of this administration “bitterly disappointed” the administration’s most committed friends and supporters, in the words of Representative Henry Waxman.   The brief was filed over sustained opposition from Health & Human Services Secretary Kathleen Sebelius and, according to a “Capitol Hill” source quoted in a Politico story, "California Medicaid Cuts Pit HHS v. DOJ," “every health policy person and lawyer in the administration.”   There are several reasons for the widespread distress about this brief:

    First, the Acting Solicitor General’s argument contradicts the law as applied for decades, in scores of cases, by the Supreme Court and the lower federal courts.

    Contrary to the DOJ brief, all federal courts of appeal have held that the Supremacy Clause – which mandates that federal law is “the supreme law of the land” – protects safety net beneficiaries from unlawful state action to the same extent and for the same reasons that the clause has been held, over and over, to empower business litigants to seek overturn of state consumer protection and other laws. 

    The rule endorsed by the DOJ brief, carving safety net laws and beneficiaries out from the protection of Supremacy Clause preemption, was proposed in concurring opinions in a 2003 case, PHRMA v. Walsh, by Justices Antonin Scalia and Clarence Thomas.  But that is as far as this arbitrary doctrine has gone till now.  It has never been accepted by any other member of either the Rehnquist or the Roberts Supreme Court. 

    Hence, in 2005 the Fifth Circuit asserted “little difficulty in holding that [Medicaid beneficiaries] have an implied right of action to assert a preemption claim seeking injunctive and declaratory relief.”   Both the Fifth and DC Circuits ( in 2004) expressly held that the Scalia-Thomas line, embraced in the Acting Solicitor General’s brief,  had been “tacitly reject[ed]” by the other “seven justices,” all of whom reached the merits in PHRMA v. Walsh.  In 2006, the Eighth Circuit – like the Fifth and DC Circuits not known as a bastion of judicial liberalism – concurred that, contrary to the Scalia-Thomas-DOJ line, federal spending clause laws are no less “supreme” than federal regulatory laws:  “While Medicaid is a system of cooperative federalism, the same analysis applies [as under alleged conflicts between federal and state regulatory laws”]; once the state voluntarily accepts the conditions imposed by Congress, the Supremacy Clause obliges it to comply with federal requirements.”  The Ninth Circuit decision currently under Supreme Court challenge was authored by Judge Milan Smith, a George W. Bush appointee and brother of former Republican Senator Gordon Bush of Oregon. 

    The DOJ brief asserts that the Supreme Court has never “squarely held” that the Supremacy Clause establishes, in addition to federal jurisdiction to entertain suits, a cause of action as well.  But this is lawyers’ weasel-talk.  The Court has upheld literally scores of suits to invalidate state laws in conflict with federal laws.  The sole doctrinal basis for many, perhaps all of these decisions is Supremacy Clause-based preemption.  The readily apparent reason why the Supreme Court has never “squarely held” that such authority exists, while exercising it repeatedly, is that, to date, the justices have considered the point too self-evident to require explanation.   As stated by Justice Anthony Kennedy in a 1986 opinion, “[P]laintiffs may vindicate .  .  . pre-emption claims by seeking declaratory and equitable relief in the federal district courts through their powers under federal jurisdictional statutes.”  

    The Court’s repertoire of preemption decisions include situations materially indistinguishable from the pending case alleging unlawful state rate cuts for Medicaid providers, for example,  a unanimous 2006 decision, Arkansas Dept. of Health & Human Services v. Ahlborn, to invalidate an Arkansas statute that imposed a lien to recoup Medicaid payments from a beneficiary’s estate in violation of Medicaid statutory requirements.