ACSBlog

  • July 11, 2017
    Guest Post

    by Aziza Ahmed, Professor of Law at Northeastern University School of Law

    The United States has long been the largest bi-lateral donor in family planning assistance. Amongst other health services, this funding is dedicated to promoting reproductive health services, providing modern forms of contraception and responding to needs in maternal health care. In 1984, at the International Conference on Population in Mexico City, then President Ronald Regan announced the Mexico City Policy or what has come to be known as the “Global Gag Rule.” The policy mandated that United States family planning funding could not be used to “perform or actively promote abortions as a method of family planning.” The Mexico City Policy added restrictions to the Helms Amendment passed in 1973 which prohibits United States Foreign Assistance from paying for “the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions.” The Helms Amendment, however, only applied to U.S. government money – non-U.S. funding could be utilized to provide abortion related services. The Mexico City Policy goes much further: mandating that U.S. government funds would not be given to non-governmental organizations who provide abortion related services with their own funding or funding from other sources. In other words, organizations receiving U.S. money would have to choose whether to refuse U.S. funds (risking closure) or turn away women needing abortion related services. In announcing the Mexico City Policy, Reagan further ensconced U.S. family planning assistance in domestic abortion politics and policy, placing the lives and health of people residing in countries where U.S. aid supplemented health services on reproductive health at significant risk.

    Since its inception, each Republican Administration has reinstated the rule while each Democratic administration (with some exception) has stopped its application to U.S. foreign assistance. Each time the policy is renewed or revoked days after the change in administration – making the Mexico City Policy a way to cater to the political base of the newly elected party. There has been subtle acknowledgement even from Republicans that the Mexico City Policy has a negative impact on health programming. The George W. Bush administration, for example, which initiated the President’s Emergency Plan for AIDS Relief, a multi-billion dollar initiative aimed at the prevention and treatment of HIV, limited the application of the Mexico City Policy to HIV/AIDS money despite the conservative anti-choice rhetoric of the party.

  • July 11, 2017
    Guest Post

    *This piece originally appeared on the Economic Policy Institute’s Working Economics Blog.

    by Celine McNicholas, Labor Counsel, Economic Policy Institute

    Yesterday, the Consumer Financial Protection Bureau (CFPB), an independent agency that serves as a watchdog for consumers, issued a rule that would ban companies from using mandatory arbitration clauses to deny Americans their day in court. The rule would restore consumers’ ability to band together in class-action suits. Without the ability to pool resources, many people are forced to abandon claims against financial institutions and other powerful companies. Consider that hundreds of millions of contracts for consumer financial products and services include mandatory arbitration clauses. Yet, The New York Times found that between 2010 and 2014, only 505 consumers went to arbitration over a dispute of $2,500 or less. By prohibiting class actions, companies have dramatically reduced consumer challenges to predatory practices.

    Mandatory arbitration clauses are also used by employers. Employees are forced give up their right to sue in court and accept private arbitration as their only remedy for violations of their legal rights. Private arbitration clauses tilt the system in the business’s favor: the company is often allowed to choose the arbitrator, who will thus be inclined to side with the business; arbitration also cannot be appealed, leaving workers and consumers in much worse shape than if they had access to the courts. As such, employees who bring grievances against their employers are much less likely to win in arbitration than in federal court. Employees in arbitration win only about a fifth of the time (21.4 percent), whereas they win more than a third (36.4 percent) of the time in federal courts.

  • July 10, 2017
    Guest Post

    by Dan Froomkin

    Donald Trump's pick to succeed FBI director James Comey -- who he fired for being insufficiently compliant -- goes before the Senate Judiciary Committee on Wednesday morning.

    Christopher Wray is a relative unknown, having cast a remarkably small wake during two decades as a lawyer for the Justice Department and big-money law firm King & Spalding.

    But Wray has played some disturbing bit parts over the years that senators will surely want him to explain.

    And his willingness to accept the job under these circumstances raises a number of essential questions about what assurances he has gotten or given, how he sees his relationship with Trump, and what if any plan he has to restore even a veneer of nonpartisanship to the agency.

    Q. Do you see the FBI as a check on the president?

    Q. How are you going to support Bob Mueller's special counsel investigation of Russian meddling in the presidential election -- without interfering with it?

    Q. If President Trump asks you for your loyalty, how will you respond? Has he asked already?

  • July 10, 2017
    Guest Post

    by Bidish Sarma. Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.

    Near the end of the term, the Supreme Court handed down its decision in Packingham v. North Carolina. The outcome was a slam-dunk victory for Mr. Packingham—a registered sex offender—and proponents of robust free speech protections around the country. The Court left no doubt about its commitment to protecting the First Amendment (all eight presiding justices agreed that the law at issue was unconstitutional), but it sent mixed signals about whether it would author a new chapter in its dealings with individuals convicted of sex offenses. This is an increasingly important question because for many years now sex offenders have been the target of unique, restrictive and hyper-punitive legislative schemes that raise deep constitutional questions. If the Court ducks these questions, similarly dubious laws may be used to target other groups, including individuals who have committed no crimes at all. Nobody seriously questions a legislature’s interest in protecting individuals from sexual violence. But, the time has come to ask whether society’s “war” on sex offenders who have already completed criminal sentences has gone too far.

    Packingham involved a North Carolina statute that prohibited registered sex offenders from accessing an astounding range of websites (including news websites, WebMD and Amazon). The defendant was arrested for violating the law after he posted a message on Facebook praising God because a court had dismissed a traffic ticket without imposing any fine or other punishment. In striking down the sweeping restraint on internet use, Justice Kennedy’s majority opinion acknowledged the state’s interest in preventing sex offenders from using technology to facilitate crimes, but held that the “statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.” The law’s breadth and the Court’s robust protection of free speech may best explain the result. Thus, Packingham may well be “the rare case” in which the Supreme Court rules in favor of sex offenders.

    If, however, the Court is more broadly worried about laws that may infringe on the rights of people who have been convicted of sex offenses, the First Amendment is not the only amendment that requires judicial enforcement. Justice Kennedy’s opinion hints that the justices in fact harbor concerns. In a parenthetical note, the decision referred to “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” and observed that this fact is “not an issue before the Court.”

  • July 10, 2017
    Guest Post

    by Joshua A. Douglas, Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law

    While doom-and-gloom seems to dominate voting rights news these days, there is also positive work happening on the ground to enhance the right to vote. That is the goal of a lawsuit in Massachusetts, showing the importance of playing offense instead of defense in an effort to expand democratic participation.

    Voters in Massachusetts, along with the ACLU, are challenging Massachusetts’s 20-day registration deadline. Under the law, a voter may not cast a ballot on Election Day unless he or she has registered at least 20 days in advance of the election. The plaintiffs in Massachusetts argue that the government has no need for this registration deadline and that requiring people to register ahead of Election Day deprives those who do not comply of their constitutionally-protected right to vote. They literally cannot vote if they do not register ahead of the election and yet given modern technology, the state has no need for the 20-day requirement.

    The plaintiffs have already won, in part. Just before the 2016 election, state judge Douglas Wilkins found that Massachusetts had failed to demonstrate a “real reason, grounded in data, facts, or other evidence,” for the registration deadline. The court noted, “The right to vote is fundamental, as guaranteed by the Massachusetts Constitution.” The registration deadline deprived the three plaintiffs of this fundamental right. The court therefore allowed them to cast their ballots even though they had not registered in time. Yet that decision did not resolve the ultimate question of the constitutionality of a registration deadline before Election Day. The court is now considering that question, hearing testimony from voters, election experts, and state officials.