ACSBlog

  • March 2, 2017
    Guest Post

    by Justin Pidot, Associate Professor, University of Denver Sturm College of Law

    In its zeal to block regulations adopted by the Obama Administration, the U.S. House of Representatives recently approved a Congressional Review Act (CRA) resolution to overturn BLM’s Waste Prevention Rule, sometimes called the venting and flaring rule. The effort is another in a recent spate of misguided uses of the CRA and represents poor stewardship of natural resources owned by the American public. 

    The Waste Prevention Rule requires companies drilling for oil and gas on federal land to take reasonable steps to prevent natural gas from being released into the atmosphere. Gas in the air cannot be used to generate electricity and it significantly contributes to climate change. Companies also do not have to pay royalties on gas that they do not bring to market, meaning that taxpayers receive no revenue from these public resources. 

    The CRA allows Congress to overturn any regulation adopted by a federal agency within the last sixty legislative days. Until this year, Congress only used the CRA once. This week Congress used it to torpedo the Office of Surface Mining’s Stream Protection Rule, which required coal mining companies to restore waterways after mining, and Congress is considering a raft of other CRA resolutions. 

    Congress should think twice before using the CRA casually and frequently. Federal agencies spend years developing regulations: the Stream Protection Rule was in development for eight years and the Waste Prevention Rule for more than two. The process of developing a regulation harnesses the wisdom of policy, scientific and legal experts and involves extensive public participation. Under the CRA, Congress undoes years of work in the span of hours; a feature of the CRA is that it limits congressional debate. Perhaps most troublingly, language in the CRA suggests that Congressional action also blocks any similar rule the agency may want to issue in the future, thereby threatening to permanently prevent federal agencies from tackling important issues.

  • March 1, 2017

    by Katie O’Connor

    In an era of record political polarization, there are still a handful of issues on which Americans seem to agree. One such issue is the need to implement serious campaign finance reform and drastically reduce the amount of money in politics. According to a 2015 New York Times/CBS News poll, 84 percent of respondents thought that money has too much influence in American political campaigns. 39 percent of respondents said the system for funding political campaigns needs fundamental changes, and another 46 percent said the system needs to be completely rebuilt. Over three-quarters of respondents were in favor of limiting the amount of money individuals can contribute to political campaigns.

    Despite a near consensus on the need for change, little has been done to slow the flood of money into politics in recent years. In fact, it has only hastened, with some help from the Supreme Court. The 2016 presidential election is estimated to have cost $6.9 billion, up from $4.3 billion in 2000. Part of the blame for the impasse lies with Congress, which has been growing increasingly gridlocked for decades. But Congressional deadlock is not a total bar to campaign finance reform.

    The Federal Election Commission (FEC) is the agency whose mission is to enforce and administer campaign finance laws. Specifically, the FEC enforces laws which seek to “limit the disproportionate influence of wealthy individuals and special interest groups on the outcome of federal elections; regulate spending in campaigns for federal office; and deter abuses by mandating public disclosure of campaign finances.” Despite its bipartisan and overwhelmingly popular mission and its distance from a dysfunctional Congress, the FEC is not immune to gridlock. In fact, it has come to be referred to, in some circles, as the Failure to Enforce Commission.

  • March 1, 2017
    Guest Post

    by Lauren A. Khouri, Associate Attorney, Correia and Puth

    This past week, the U.S. Departments of Education and Justice, under the direction of President Trump, withdrew guidance to schools that receive federal funding that Title IX requires transgender students the right to use bathrooms consistent with their gender identity. In withdrawing the guidance on transgender rights, the Trump administration showed neither an understanding of the laws that protect against sex discrimination nor the key role of government in protecting students’ civil rights.

    First and foremost, the Trump administration’s actions do not change the law. Title IX of the Education Amendments of 1972 – like Title VII of the Civil Rights Act of 1964 – has long protected the rights of transgender students to use restrooms and facilities consistent with their gender identity. By its language, Title IX prohibits schools that receive federal funding from discriminating “based on sex.” Over the past two decades, federal courts and agencies have recognized with near unanimity that federal laws prohibiting sex discrimination, including Title IX, prohibit discrimination against transgender persons. For example, the Supreme Court long ago recognized that it is illegal for an employer to deny employment opportunities or permit harassment because a woman does not dress or talk in a feminine manner, because this is discrimination based on sex. Likewise, federal trial and appellate courts have found that it is impossible to consider someone’s gender identity – a person’s innate identification of one’s gender – without considering his or her sex. Indeed, transgender people are defined by the fact that their gender identity does not match the biological sex given to them at birth. Therefore, courts have reasoned, discriminating against someone based on their gender identity is synonymous with sex discrimination prohibited under the law.

  • 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.