Will Whoever Fires Bob Mueller Please Turn Off the Lights

by Victoria Bassetti

*This piece was originally posted by Brennan Center for Justice

White House spokesperson Sarah Huckabee Sanders says he won’t do it.

Last Monday, she was asked: “Is the President going to rule out, once and for all, firing [Special Prosecutor] Robert Mueller.”

“There's no intention or plan to make any changes in regards to the special counsel,” she replied.

Sen. Bob Corker (R-Tenn), fresh off warning that the President might start World War III, can’t imagine he’ll do it.

Last Tuesday, a reporter cornered the president’s harshest Senate critic in a hallway and posed the following: “There are stories that the President is thinking about firing Mueller. Do you think that’s appropriate?”

Continue reading "Will Whoever Fires Bob Mueller Please Turn Off the Lights" →

The National Popular Vote Compact Via Direct Democracy

by Katherine Oh, Political Researcher & Strategist, American Civil Liberties Union

The surprising highs of voter participation in recent state and local elections, record numbers of women running for office, and even "not usually a sign guy" protestors marching in the streets are promising signs not just for American democracy and civil society in the new era under President Trump. They're signaling the moment may be ripe for leveraging activist and grassroots energy to bring the National Popular Vote Compact into effect.

In the current Electoral College system, most states award their electoral votes on a "winner-take-all" basis to the presidential candidate who wins the most votes within the state. As a result, a candidate can still become the country's president after ignoring all but the battleground states and losing the national popular vote as five men have in U.S. history.

Under the National Popular Vote Compact, participating states would instead allocate their electoral votes to the candidate who wins the most number of popular votes nationally. Once states that represent at least 270 electoral votes join the Compact, the Electoral College would thus be guaranteed to produce a victor who won the nationwide popular vote. Furthermore, the nature of the campaigns would change in a more democratic direction because every voter in every state would matter. In other words, the Compact would place the same Electoral College "under new management – the American people's," as ACLU President Susan Herman wrote.

In states that allow citizen-led ballot initiatives, Herman also suggested voters could directly propose and vote to approve a new statute or a state constitutional amendment to bring their state into the Compact. At the state level, as the comprehensive tome Every Vote Equal notes, "there is no provision of any state constitution that specifically singles out interstate compacts as being ineligible for enactment by the voters by means of the citizen-initiative process." Questions have been raised about the Compact's constitutionality at the federal level, including the two issues discussed here, but answers by supporters are persuasive.

First, not all interstate compacts require approval by Congress under the Constitution's Compact Clause. In Virginia v. Tennessee and United States Steel Corp. v. Multistate Tax Comm'n, the Supreme Court specified that congressional approval is unnecessary for compacts among states that do not encroach on the supremacy of the federal government. The Compact cannot infringe on federal supremacy in this context because there is no federal power over the allocation of Electoral College votes in the first place.

That power belongs instead to the states under Article II, Section 1: "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors. . . ." Moreover, this power is exclusive and plenary to the states, provided that restrictions elsewhere in the Constitution aren't violated. The Supreme Court held so in McPherson v. Blacker, a ruling cited by the Court later in Bush v. Gore to refer to this supreme power of the states.

Another potential complication is whether Article II's literal reference to "the Legislature" necessarily excludes citizen-led ballot initiatives. As Every Vote Equal carefully explains, however, "history, practice, and law" show us the word "legislature" in the Constitution can also refer to the lawmaking process involving voters. McPherson v. Blacker further acknowledges that a state's legislative power may be "reposed" elsewhere rather than necessarily contained in its legislature, which itself is an instrument of "the sovereignty of the people."

More recently, as featured in this essay, Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n upheld the ballot initiative process for changing congressional district regulations using reasoning that's also favorable to the citizen-led initiative process for changing presidential election rules. Indeed, the AIRC Court declared it "perverse to interpret 'Legislature' in the Elections Clause to exclude lawmaking by the people," a statement especially meaningful in light of U.S. Term Limits v. Thornton. In that 1995 case, the Court highlighted the parallel between "legislature" in Article I with respect to electing members of Congress and "legislature" in Article II with respect to each state's system for electing presidential electors.

If joining the Compact via ballot initiative is on the table for more states, the overall calculus changes. The states that are currently part of the Compact represent 165 electoral votes. Based on their recent electoral history and past interest in the Compact, these states may be receptive to joining via the standard legislative route in the near future, bringing the hypothetical tally to 197: Connecticut (7 electoral votes); Delaware (3); Minnesota (10); New Mexico (5); and Oregon (7).

In about half the states, citizens can bypass the legislature to propose a new state statute or state constitutional amendment themselves. It's plausible that the everyday voters of Colorado (9), Florida (29), Michigan (16), Nevada (6), and Ohio (18), for example, would agree the President of the United States should be the candidate who won the most popular votes across the country after having had to care about every voter regardless of geography. Those states' electoral votes would raise our hypothetical total to 275—more than the 270 required to activate the Compact and deliver the Electoral College victory to the national popular vote winner.

Thus new stars may be aligning for the National Popular Vote Compact. Just look to the states that already empower voters to take matters into their own hands via direct democracy.

President Trump is making his only African American judicial nominee move for Brett Talley

by Christopher Kang, ACS Board member and former Deputy Counsel to President Obama

*This piece originally ran on Huffington Post

On May 8, 2017, President Trump announced that he intended to nominate Magistrate Judge Terry Moorer to serve as a district judge in the Middle District of Alabama. This nomination would have been President Trump’s first African American judicial nominee, and it’s likely no coincidence that it was announced on the same day as Kevin Newsom for an Alabama-based seat on the Eleventh Circuit Court of Appeals. Alabama has never had an African American circuit court judge, and Newsom replaced President Obama’s African American nominee, Judge Abdul Kallon, whom Senators Sessions and Shelby had blocked.

By August, Newsom had been confirmed, but Judge Moorer still had not even been officially nominated. In fact, all nine of the other judicial nominees announced on May 8 had been nominated within a month, but for four months, there was still no sign of Judge Moorer.

On September 8, President Trump announced a little-noticed bait-and-switch: he replaced Judge Moorer’s original nomination with Brett Talley, and Judge Moorer’s final, official nomination forced him to move to the Southern District of Alabama.

At first blush, it seemed like the more qualified, African American nominee was simply shoved aside for a less qualified white man:

  • Judge Moorer has served 10 years as a federal magistrate judge and 17 years as an Assistant U.S. Attorney. Talley has practiced law for less than three years and has never tried a case. He graduated law school in 2007—the same year Judge Moorer became a magistrate judge.
  • Judge Moorer has been a fixture in the Middle District legal community for nearly three decades and was even born in Greenville, within the Middle District. In Talley’s legal career—and possibly in his entire life—he lived in the Middle District of Alabama for little more than three years.
  • The non-partisan American Bar Association (ABA) rated Judge Moorer “unanimous Qualified.” It gave Talley its lowest possible rating—“unanimous Not Qualified”—issued for only the fourth time since 1989.

Yesterday—as new revelations swirled that Talley had failed to disclose a potential conflict of interest that his wife is a senior White House lawyer and that he alsowithheld relevant blog posts—another piece of the puzzle fell into place.

In response to questions from Senator Feinstein regarding the substantive differences in the cases considered by the Middle and Southern Districts, Judge Moorer revealed the following:

Montgomery is the capital city of Alabama; therefore, a few different types of cases may more likely be heard in the Middle District of Alabama such as redistricting cases or public corruption cases involving statewide elected officials.

In addition to redistricting and public corruption cases, because Montgomery is in the Middle District, many constitutional challenges to Alabama state laws are heard there. Just last month, a judge in the Middle District ruled that two Alabama laws that would have severely restricted abortion access are unconstitutional.

So, for these—the most political and consequential cases—President Trump once again has prioritized an ideological rubber stamp over everything else, including his own initial pick.

Judge Moorer’s responses make clear that it was not his idea to move and that his preference would have been to stay in the Middle District. In fact, if he is confirmed to be a district judge in the Southern District, he will be legally required to move there, pulling up his nearly 30-year roots from the Montgomery legal and civic community.

The White House’s explanation for its decision doesn’t add up. Judge Moorer wrote, “When I was told that I would be nominated for the Southern District of Alabama, I was also informed that my criminal law background provided additional diversity to the Southern District of Alabama bench as the other nominee had a primarily civil litigation background.”

But if experiential diversity was a factor, Judge Moorer’s nomination should have remained in the Middle District. President Trump has nominated four people to fill district court vacancies in the Middle and Southern Districts of Alabama. If all four are confirmed: in the Southern District, two of the three judges would have a criminal law background—Judge Moorer and the current Chief Judge Kristi DuBose—while in the Middle District, none of the three judges would have a criminal law background.

Of course, as Talley’s nomination shows, experiential diversity—and indeed experience and diversity in general—have nothing to do with Trump’s judicial nominations.

Instead, President Trump has imposed upon his only African American judicial nominee (out of 59 so far) to move across the state and make way for a startling unqualified political operative who has more experience writing political speeches and horror stories than practicing law—all so the president can continue to put his thumb on the scales of justice in as many courts as possible.

The Latest Assault on Immigrants and the Need to Preserve TPS

by Debbie Smith, Associate General Counsel for Immigration Law, Service Employees International Union (SEIU)

Even as the newest Muslim ban works its way through the courts, President Trump has initiated another assault against immigrants by terminating a program providing humanitarian relief to immigrants fleeing civil war and natural disasters. Despite 30 years of Democratic and Republican administrations’ recognition of the importance of continuing this protection, unless Congress intervenes or the administration changes its mind, it is about to end.

Last Monday, the Acting Secretary of the Department of Homeland Security ended Temporary Protected Status (TPS) for 2,500 Nicaraguans and left in limbo the fate of 57,000 Hondurans who have lived and worked legally in the United States for decades. On Thanksgiving Day, DHS will decide the destiny of 50,000 Haitians who fled the earthquake that decimated their island. In January, DHS will consider whether 200,000 Salvadorans living in the U.S., many for over 20 years, can remain. By the end of 2018, the approximately 350,000 hardworking current TPS beneficiaries will be forced into the shadows and subject to expulsion from the U.S.

TPS, enacted in 1990 as an amendment to the Immigration and Nationality Act and codified as 8 U.S.C. § 1254a, provides a safe haven for immigrants who are fleeing dangerous conditions in their home countries. The law established a process for the Attorney General, later the Secretary of Homeland Security following the creation of DHS, to designate a country for TPS status, following consultation with government agencies, if the country has experienced: 1) an armed conflict; 2) an environmental disaster or 3) other extraordinary conditions. In the case of an environmental disaster, the Secretary of DHS must determine that the country cannot handle the return of its nationals and the country must also formally request TPS. 

TPS can be conferred for 6, 12, or 18 month renewable periods. Once the country is selected for TPS, its nationals who are in the U.S. as of a date certain, are eligible for work authorization and permission to remain in the U.S. during the TPS period.  The 6th  and 9th Circuit Courts of Appeals have held that a grant of TPS status constitutes a lawful admission and therefore TPS beneficiaries residing in the 6th and 9th Circuit are entitled to process applications for legal residency in the United States without returning first to their home country (adjust status). 

The 1990 amendment also specifically designated El Salvador for TPS. This statutory designation was the only country-specific congressional designation and followed a decade-long effort to protect the more than 500,000 Salvadorans who fled the violent civil war seeking safety in the United States. 

The Trump Administration is determined to eliminate TPS entirely, without consideration and review of the TPS countries’ conditions or adequate procedural process. The Washington Post reports that White House Chief of Staff John F. Kelly called Acting Secretary Elaine Duke from Japan and attempted to pressure her to terminate the Honduran program on November 6. 

Congressional representatives have introduced two bills to provide a path to legal residency for TPS beneficiaries and another bill is expected. Representative Carlos Curbelo, (R-FL) introduced bipartisan legislation to grant legal permanent resident status Nicaraguan, Honduran, Salvadoran and Haitian migrants. A second bill sponsored by Representative Velázquez (D-NY) would provide a pathway to legal resident status and citizenship for immigrants from all of the TPS countries and well as those granted another humanitarian benefit, Deferred Enforced Departure (DED).  

Advocates continue to fight to preserve TPS and prevent the wholesale removal of hundreds of thousands of TPS beneficiaries from the ten TPS countries, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, Yemen. Without public pressure and congressional intervention, the decades-old bipartisan understanding that the U.S. should offer a safe landing to those in critical need will be broken and our national pride diminished.  

 

 

Work ≠ Health Insurance

by Nicole Huberfeld, Professor of Health Law, Ethics & Human Rights, Boston University

For a long time, Americans could count on employment to obtain health insurance benefits. The strong link between full-time work and health insurance survived so long that most Americans assume those who work have health insurance, and those who do not have health insurance must not be working. Yet, part-time work has always been very weakly linked to employer-sponsored health insurance benefits, and individuals working in minimum-wage and hourly-paid jobs are much less likely to be offered health insurance as an employment benefit or to be able to afford if offered. Further, since the late 1980s, the link between work and health insurance has been declining steadily. By the late 2000’s, employer sponsored health insurance had declined to covering only a slight majority of the American population. The result was that by 2008, Americans could not count on work as a path to health insurance coverage, and part-time and low income workers were the least likely to be able to obtain health insurance at all, let alone as an employment benefit. As employer-sponsored health insurance coverage declined, nothing covered the gap – until the ACA. 

The ACA, or Obamacare, opened Medicaid to individuals who had no health insurance coverage and no way to get it, a majority of whom were working and not receiving insurance as an employment benefit. The ACA dealt with the problem of uninsurance pragmatically by recognizing that hourly wage earners, many of whom work multiple part-time jobs, need Medicaid because they cannot to buy health insurance elsewhere. While those earning 100%-400% of federal poverty level can receive federal tax subsidies to purchase private insurance through a marketplace, private health insurance has complex cost-sharing that is a known barrier to care for the poor. Further, income fluctuates for hourly wage earners, often causing them to churn in and out of health insurance if they are able to obtain it through work.

CMS Administrator Seema Verma, the federal official tasked with taking care that Medicaid is properly run, just announced that she intends to loosen important rules that make Medicaid the unique safety net that it is. She publicized that CMS will approve state requests to impose work requirements on Medicaid enrollees, especially those who are newly eligible under the ACA, which she and other politicians have been calling the “able bodied”. This desire to require work as a condition of Medicaid enrollment is a direct rejection of the ACA’s attempt to create near-universal insurance coverage regardless of health, employment, income, or other status, and it operates in ignorance of plentiful evidence that most people enrolled in Medicaid who can work do work.

A state can only impose work requirements if it obtains a “demonstration waiver,” meaning that CMS can approve a state’s application to deviate from the federal law of Medicaid so that it can demonstrate another way to provide medical assistance to the poor. Demonstration waivers historically lasted for 3-5 years, and states have had to report the successes and failures of their demonstrations.  The Obama Administration rejected state waiver requests for work requirements as inconsistent with the Medicaid Act; but today, Administrator Verma indicated that she intends to approve these and other waiver applications more readily and to allow waivers to last longer (up to ten years). States have sought work requirements, wellness incentives, and other behavioral checks that make it so beneficiaries who fail to report could be disenrolled from Medicaid - sometimes for months at a time.

Such waivers would not demonstrate anything about delivering medical care to poor individuals. In fact, states have openly written in waiver applications that they anticipate work requirements will result in dis-enrollment. CMS is effectively telling states that they can control costs through keeping beneficiaries out of Medicaid for months at a time with little federal oversight or any repercussions. 

Assisting people with developing job skills and finding work is a worthy goal in general, but work should not be a barrier to Medicaid enrollment when it is well known the people affected cannot otherwise get health insurance. This will make low income workers more vulnerable to illness and injury, which ironically means that work would become harder to perform. This paradox perhaps reveals the true goal, to administratively undermine the universality of the ACA without legislative repeal.

The Medicaid program is a work horse that provides public financing to people who need medical assistance and who otherwise would be uninsured.  The “state flexibility” announced by CMS today may possibly lead more red states to expand Medicaid eligibility under the ACA by giving them political cover, but at a cost. The newly-announced policy does not further Medicaid’s goal of medical assistance for the poor, and it is blind to facts about work being delinked from health insurance, especially for the very populations helped by the ACA.  “Work” should not be a barrier used by states to penalize those who are already struggling.

 

Reflections on co-hosting ACS’s first-ever National Lawyer Convening

More than 120 lawyers representing 16 different states gathered in Milwaukee last month for ACS’s first-ever National Lawyer Convening. We were honored to serve as co-hosts of this gathering, which was both a great success and a lot of fun. It was exciting to welcome our ACS counterparts from all corners of the nation to Wisconsin, and inspiring to draw on their energy and to learn about how much ACS Lawyer Chapters are doing coast to coast.

In a packed two days, participants heard from elected leaders and subject-matter experts about how Wisconsin is at the leading edge of some of the most pressing legal struggles facing America. Milwaukee Mayor Tom Barrett kicked the Convening off by greeting convening participants at City Hall, a Gilded Age landmark that, at the time of its construction was America’s third-tallest skyscraper. Through the Great Depression, the New Deal, two World Wars, the Civil Rights Movement, and the conservative ascendancy of the past generation, Milwaukee’s community leaders have gathered in that building to face the challenges of their day. Mayor Barrett invoked that legacy as a fitting reason for ACS, the leading progressive legal network, to be holding its inaugural lawyer convening in Milwaukee.

The next morning began with a panel on impediments to voting rights. Again, Wisconsin provided a lens to discuss voting restrictions, legislative shenanigans, and the deleterious effects on our democracy. The expert panelists—Madison lawyer Josh Kaul, Campaign Legal Center senior legal counsel Danielle Lang, and ACLU voting rights attorney Alora Thomas—addressed a host of topics, from challenges raised against voter ID laws to the recent Supreme Court argument in Gill v. Whitford over the politically gerrymandered map of Wisconsin’s legislative districts; from purges of voting rolls to the accumulated effect of numerous impediments states have erected that depress voter participation. As Kaul noted, this death-by-a-thousand-cuts approach results in a substantial impairment of the franchise and threatens the vitality of our democracy. The keynote speaker at Friday’s luncheon was Illinois Attorney General Lisa Madigan, who delivered enthusiastic remarks on State Attorneys General and their fight to protect people in the current political and legal climate nationally.

Subsequent panels discussed the state of the judiciary and paths to the bench, the rise of progressive federalism, critical issues facing the criminal justice system, concrete tips to use the media more effectively, and more. Panelists included Milwaukee District Attorney John Chisholm, attorney and exonoree Jarrett Adams, Illinois Supreme Court Justice Jane Theis, University of Wisconsin Law Professor Steph Tai, Cook County Illinois State’s Attorney Kim Foxx, Wisconsin Eastern District Judge Lynn Adelman, and attorney and author Jerry Buting.  Throughout the Convening, participants received helpful, specific advice on building skills for more effective organizing and advocacy.

Equally important, we all had informal opportunities to meet one another and exchange ideas. This began at City Hall, extended through meals, and culminated in dinner at the Milwaukee Public Market and an after-party at the Milwaukee Ale House on the Milwaukee Downtown Riverwalk. On an unseasonably warm evening, our group spilled out of the bar and onto the Riverwalk deck, talking, laughing, and learning late into the night.

We’re thrilled that the Convening was so successful. We appreciate the ACS staff’s vision—and their tireless work to bring that vision to life. Both of our firms were proud to sponsor this event along with the Brico Fund and Myron M. Cherry & Associates, LLC to make the Convening possible. We’re looking forward to the next ACS Lawyer Convening—and to improved ACS programming informed and inspired by the Convening.