Category: Analysis

United States v. Safehouse: Could Philadelphia be the First State in the Nation to Implement a Supervised Drug Injection Site?

June 1st, 2020 in Analysis, Federal Legislation, Legislation in Court

The opioid epidemic is one of the worst public health crises affecting the United States, and the rate of deaths resulting from opioid overdose has steadily increased. According to the Centers for Disease Control and Prevention, a record high of more than 70,000 people died of a drug overdose in the United States in 2017, and over 47,000 of those deaths were from opioid overdoses. As lawmakers attempt to address this epidemic through public health initiatives , health advocates increasingly recommend using supervised injection sites to curb overdose deaths. Though legal barriers to this in the US exist, a recent District Court ruling in United States v. Safehouse may have paved the way for implementation of the first site of this kind in the US.

A safe injection site in Vancouver
Elana Gordon / WHYY

Injection sites provide a space where those using intravenous drugs can inject under the supervision of a medical professional ready to intervene in the event of an overdose, instead of unsupervised use where an overdose is more likely to be deadly.  Supervised injection sites, also called safe injection facilities or safe consumption spaces, are a tertiary preventative public health measure aimed at combating overdose deaths and decreasing public use. In these spaces, injection drug users can self-administer drugs they bring to the facility in a controlled, sanitary environment under medical supervision. The medical personnel on staff at the sites do not directly handle the drugs and are there purely to administer Naloxone, an overdose reversal drug, in case of an overdose.

Despite the growing global presence in Europe, Australia, and Canada, scientific support for safe injection sites, and the interest of several cities, including Philadelphia, Boston, New York, Seattle, and San Francisco it is not entirely certain they can be operated in the United States.  The Controlled Substances Act § 856, which regulates the production, possession, and distribution of controlled substances, makes it a criminal offense to maintain a drug-involved premises. Most academics agree that this Crack House Statute forbids safe injection sites and the courts can not definitively decide if safe injection site violate federal law until one is operational.

However, recently these assumptions have been called into question. Safe injection site proponents in many states have been appealing to legislatures and public health officials for funding.  This effort has been largely unsuccessful due to political opposition and the looming threat of a federal lawsuit. In Philadelphia, which has the highest overdose rate of any major US city, a poll found roughly half of Philadelphians support a proposed safe injection site.  Safehouse is a Philadelphia nonprofit that seeks to build the first safe injection site in the nation. In January 2018, Philadelphia health officials gave Safehouse permission to move forward with only private fundspreventing the need for legislative backing and appropriations.

In February 2019, federal prosecutors launched a civil lawsuit asking the U.S. District Court to rule on the legality of the Safehouse supervised consumption site plan, rather than waiting for the site to be built and then bringing federal criminal charges.  U.S. Attorney William McSwain, working with Pennsylvania-based prosecutors, is seeking a declaratory judgment that medically supervised consumption sites per se violate 21 U.S.C § 856(a)(2) the federal Crack House statute.

Picture by Holden Blanco

In February 2020, the court issued United States v. Safehouse, ruling that Safehouses plan to build a site where people could bring previously obtained drugs and use them under medical supervision for the purpose of combating fatal overdoses does not violate the Controlled Substances Act. Judge McHugh, looking at Congressional intent, ruled that §856 does not prohibit Safehouses proposed medically supervised consumption rooms because Safehouse does not plan to operate them ‘for the purpose of unlawful drug use within the meaning of the statute. McHugh determines that at the time of enacting §856(a), Congress was focused on crack houses, not supervised drug injection sites. Even when amended in 2003, the focus was on drug-fueled raves. McHugh found that Congress neither expressly prohibited or authorized injection sites, so if §856(a) did not implicitly prohibit a consumption site, then implicit authorization naturally followed.

The question that the court addresses is whether the statute requires the defendant to know that third parties would enter their premises to consume illicit drugs, or rather that the defendant knowingly held their premises open for the purpose of facilitating illicit drug consumption. Judge McHugh concludes that the actor must have acted for the proscribed purpose to violate the statute.  Therefore, the accused under a §856(a)(2) violation must have the purpose of facilitating illegal controlled substance use in the maintenance of a property.

Safehouse is planning to make a place available for the purposes of reducing the harm of drug use, administering medical care, encouraging drug treatment, and connecting participants with social services. The district court reasons that because of this, it could not conclude that Safehouse has, as a significant purpose, the objective of facilitating drug use.

In the wake of the ruling, U.S. Attorney McSwain announced that this case is obviously far from over and it is likely that the federal government will continue to litigate it. It is not unlikely that the Court that may hear this case on appeal disagrees with the District Court’s construction and strikes the legality of a supervised injection site based not on the intent of the person who controls the space, but the intent of the attendee of the site to use illicit drugs at that site, which has been the prevailing opinion up until the point of this ruling.

While the Safehouse case stands for an unexpected legal victory by way of the possibility of a supervised injection site to be opened in the United States, Philadelphia itself may not be the first state in the nation to implement one. The public sentiment in the wake of the decision was largely negative, with the local community being virulently opposed to the idea of a site being opened in the neighborhood from fear of what dangerous circumstances a site might attract. Plans to open the Safehouse site were put on indefinite hold. While proponents of Safehouse won the legal battle, winning over the community seems to be more of uphill battle than anticipated.

At this point in time, the legal position of supervised injection sites in the United States is tentatively positive. States who are looking to introduce this harm reduction initiative, and to be the first in the nation to do so, should take the opportunity to garner support from legislatures and local health care communities. While Philadelphias progression seems to be stymied, the District Courts ruling provides significant legal precedent to ground encouragement for sites to be lobbied for in other states or cities that might not face the same type of community rejection that has prevented the opening of Safehouse.

 

Zahraa Badat anticipates graduating from Boston University School of Law in May 2021.

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The Waiting Game: Supreme Court’s Decision on the Lawfulness of the Deferred Action for Childhood Arrivals (DACA) Program

June 1st, 2020 in Administrative Law, Analysis, Federal Legislation

As May 2020 comes to an end, many eagerly await a Supreme Court decision that could affect the futures of thousands of DACA recipients and shape immigration policy as we know it. The Deferred Action for Childhood Arrivals (DACA) is the program that is currently under scrutiny; in particular the Supreme Court will be deciding on the following two issues: (1) “Whether or not the Trump administration’s decision to end DACA can be reviewed by the courts at all?” and (2) “Whether or not the Trump administration’s termination of DACA was lawful?” This program was first instituted under the Obama Administration as an executive action to do the following for qualified Dreamers who completed the process of a first-time or renewal application: (1) protection from deportation for a time period, and (2) work authorization for a set period of time.

Getty Images

During the Obama Administration, the DREAM Act of 2010 (H.R. 6497) was proposed and passed in the House but did not pass the Senate. The purpose, like its other variations, was intended to aid undocumented individuals by providing them a way to eventually reach legal status, because they were brought to the United States when they were children and have to live with a continued sense of uncertainty that attaches to being undocumented. In its stead, the Obama Administration designed a temporary solution, which came to be known as DACA, in which an individual could qualify by meeting a series of requirements (i.e. arriving in the United States before they turned sixteen years old).

 This policy gave a lot of individuals hope, but everything changed with the arrival of the Trump Administration. The Trump Administration’s policies quickly took on an anti-immigration rhetoric, and his Administration rescinded the policy on the basis that it was illegal. Thereafter, lawsuits followed with Department of Homeland Security, et al., v. Regents of the University of California, et al. reaching the Supreme Court level.

Regarding the two issues laid out above, there are many ways the decision could go, but the one that would have the worst effect on DACA recipients would be the court siding on the Trump Administration’s side in saying that “DACA was an unconstitutional use of presidential power to begin with.” This could have a devastating impact on DACA recipients especially at a time when they find themselves in the midst of the COVID-19 global pandemic alongside the rest of the world.

For example, ABC News quotes a college student saying “As a DACA recipient, and everything going on with COVID-19 and as well with the Supreme Court ruling coming at any time -- It's been very stressful.” On top of college, she works with authorization under DACA, but COVID-19 has added other stressors as she finds herself as the only provider at home. Ending DACA at a time like this would end up being very challenging and harmful for individuals like these who are trying to stay afloat during this pandemic.

Nevertheless, as this country struggles to recover from this pandemic, the most interesting development has happened to this Supreme Court case showing how vital Dreamers and immigrants have been to making this country function smoothly despite the havoc wreaked by the virus. A CNN report discusses how: “A letter sent to the Supreme Court states approximately 27,000 Dreamers are health care workers -- including 200 medical students, physician assistants, and doctors -- some of whom are now on the front lines in hospitals across the country.” The Supreme Court agreed to take this brief into consideration, and it makes one wonder whether the timing of the decision during a pandemic and the supplemental brief will have any impact at all?

Despite the positive contributions of these and other essential individuals, there have been a lot of issues that have also surfaced reflecting further difficulties that Dreamers are enduring. An example of this is federal funding under CARES Act. The pandemic has had even more disastrous effects on particular communities, and though the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 was passed with a part of it designed to provide aid and federal dollars to help students, and yet the benefits are not available to everyone. DACA students could not qualify to receive money under this Act, and it was one of the reasons the Democrats reached out to Secretary DeVos to change the language but to no avail. The House has brought another bill to the forefront, the Heroes Act, which proposes many changes; one aspect of which directly seeks to overturn “Secretary DeVos’s decision to exclude DACA students from the emergency aid.”

 This is a hopeful change, but the culmination of issues including the Supreme Court decision yet to be released, the uncertainty of COVID-19 on employment, health, and education, and a delay in passing the House bill paints a bleak picture.

Yet, at the end of the day, it is as Antonio Alarcon described it on CNN: “We’re hopeful that the Supreme Court will see the humanity of our stories and see the humanity of our families, because at the end of the day, this is a nation of immigrants.”

 

Nabaa Khan anticipates graduating from Boston University School of Law in May 2021. 

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The Fear of Forcible Eviction: Deficiencies in India’s Forest Rights Act’s Recognition of Indigenous Land Rights

June 1st, 2020 in Analysis, Legislation Abroad

Land rights has been an ongoing issue in India for many years now, but there are some communities that end up being more vulnerable than others. This was made clear on February 13th, 2019, when the Supreme Court of India released an order for mass evictions of indigenous forest dwellers from forest areas for the goal of conserving these lands. Here, the conflict itself is not surprising because evictions has been a persistent issue throughout Indian history, but it is the degree of how many individuals would be impacted that made this news so surprising.

This order was later stayed for the purpose of asking states to provide more details on the steps of eviction due to the nearly one to two million indigenous people who would be affected by the declaration. This order is significant for illustrating the deficiency in current legislation and also for shedding light on the consequences faced by vulnerable communities who live in fear of being forcibly evicted from lands that they live on, depend on, and survive on. This article will lay out the process and current critiques of the FRA, and further discuss the ongoing arguments for and against the mass eviction ordered in the February 13th decision.

Forest Rights Act of 2006

Enacted in 2006, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (commonly referred to as the Forest Rights Act (FRA)) was intended to protect indigenous populations. The FRA sought to substantiate and recognize land claims of forest dwellers. The FRA brings two groupings of individuals within its purview:

  1. Forest dwelling Scheduled Tribes, which includes members of Scheduled Tribes who primarily reside and live off the land, and
  2. Other traditional forest dwellers, which includes anyone who can prove that they have resided on and lived off the land forat least three generations.

To obtain legal recognition of their land rights individuals must file a three stage claim.

Gram Sabha

Despite being considered a step forward, the FRA’s deficiencies serve to negatively impact indigenous forest dwellers.

  1. Inexperience: First, there is the issue of inexperience with the legal system as this Act imposes a legal process that these groups may be unfamiliar with and therefore will find it more difficult to complete fully and accurately.
  2. Inaccessibility: Second, there is the issue of inaccessibility, because the Act imposes a standard form, but does not consider diversity (i.e. approximately 705 diverse ethnic groups that are legally recognized) and how such a form could be inaccessible to individuals not speaking the same language or who have different customs on resolving disputes.
  3. Impractical: Third, there is the issue of impractical standards. As the definition of the other traditional forest dwellers mentioned above indicates, part of the process of getting the land right recognition requires a claimant to present proof of residence in the forest area for at least three generations. The following two factors show how this is not a practical standard:
  4. Inadequacy: Lastly, there is the issue of inadequacy, as this procedure is set up in a way that can be influenced by adverse interest groups who may have alternate plans for the forest areas that indigenous groups call home.

These deficiencies illustrate how complex the issue is, and how there are a number of structural issues that need to be resolved in order to provide the protection that these groups need.

Arguments For And Against Forced Evictions

Sansad Bhavan
The Parliament Houses of India
1921 New Delhi

The February 13th order is unclear on the forced eviction of indigenous groups. Those opposed to indigenous groups residing in forest lands claim that the current destruction of forest areas is attributable to indigenous dwellers whose practices and way of life prove to be harmful to these areas. Furthermore, opponents such as the conservationists are not entirely sold on the purpose the FRA serves in recognition of land rights.

Supporters of indigenous forest dwellers, however, characterize these dwellers as the forest’s guardians because their practices prove to be less harmful to the land. Having resided on the land for many generations, their history, culture, and practices are tied with the land in an inexplicable way, and so evictions can prove to be disastrous to these communities especially when they are executed through force.

There have been many incidents when forced evictions have been executed through use of force (i.e. threatening behavior, destruction of home, etc.). Such evictions are expected to have dire consequences for evicted individuals, but with communities as cohesive as indigenous groups the consequences are even more far reaching. Not only are they at risk of induced poverty and danger, but community and social life are broken down forever.   

These consequences indicate a systemic and pervasive issue that requires resolution. The starting point for this is amending the FRA by making it simpler and stronger by addressing the deficiencies listed above. Only through amending this Act can real change begin to happen.

Note:  This article is based on a paper originally submitted in the Environmental Justice class at BU Law.

Nabaa Khan anticipates graduating from Boston University School of Law in May 2021.

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Is the Johnson Amendment Constitutional?

May 20th, 2020 in Analysis, Federal Legislation, Legislation in Court, Lobbying

My previous Dome blog entry discussed the Johnson Amendment and the fight that has surrounded the amendment since its creation in the 1950s. The Johnson Amendment was added to Section 501(c)(3) of the U.S. tax code by then-Senator Lyndon B. Johnson to limit the political activity of 501(c)(3) organizations. The Amendment prohibits 501(c)(3) organizations from endorsing or opposing political candidates. Many organizations have been trying to repeal the Johnson Amendment for years, and many argue (including members of Congress) that it violates the First Amendment of the U.S. Constitution.

Image by Heritage Auctions

Two vocal opponents of the Johnson Amendment (and the sponsors of the Free Speech Fairness Act in both houses of Congress) Senator James Lankford and Congressman Steve Scalise argue that the Amendment must be repealed to protect the First Amendment rights of 501(c)(3) non-profit employees. They argue the Bill of Rights protects the right of all Americans to freely express their ideas and opinions without persecution from the government, and the Johnson Amendment violates this right by stripping 501(c)(3) employees from being able to speak their minds about political issues. As discussed in my previous post, the Johnson Amendment prohibits 501(c)(3) employees from endorsing or opposing candidates, and violations of the Amendment risks punishment by the IRS either by fine, revocation of the organization’s tax-exempt status, or both. This, therefore, begs the question of whether the Johnson Amendment does in fact violate the First Amendment. This Dome blog post will look at legal precedent to see if the Amendment has been challenged for its constitutionality in the past, and if so, the arguments the court made in their decision.

Before going into court cases about whether or not the Johnson Amendment actually violates the First Amendment, it is important to look at the text itself. The text of the First Amendment reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Members of Congress and other organizations who oppose the Johnson Amendment mainly argue that it violates the freedom of speech, which is in fact why the current bill before Congress attempting to repeal the Amendment is titled the “Free Speech Fairness Act.” Within the text of the First Amendment, they argue that the Johnson Amendment is “abridging the freedom of speech” of 501(c)(3) tax-exempt nonprofit employees, but in particular religious ones, such as pastors, priests, and rabbis.

Zimmytws/ Getty Images

But has the constitutionality of the Johnson Amendment actually been determined by the Supreme Court as it applies to religious organizations? The answer, unfortunately, is no. However, two U.S. Court of Appeals circuits have upheld the Amendment as constitutional in the past when applied to religious organizations. The first case, Christian Echoes Nat'l Ministry v. United States (1972), involved a nonprofit religious corporation contesting the revocation of its 501(c)(3) tax-exempt status by the IRS as punishment for violating the Johnson Amendment. Through various appeals and remands, the ultimate holding by the Tenth Circuit Court of Appeals was that the organization no longer qualified as a tax exempt organization under section 501(c)(3) of the tax code. As one argument against the revocation of their status, Christian Echoes argued the Johnson Amendment was unconstitutional and violated their right to free speech. However, the court held that “in light of the fact that tax exemption is a privilege, a matter of grace rather than right... the limitations contained in Section 501(c) (3) withholding exemption from nonprofit corporations do not deprive Christian Echoes of its constitutionally guaranteed right of free speech.” Christian Echoes Nat'l Ministry v. United States, 470 F.2d 849, 857 (10th Cir. 1972). The court therefore determined the taxpayer must refrain from these political activities to obtain “the privilege of exemption,” which Christian Echoes benefited from until their status was revoked.

The argument made by the court in Christian Echoes is very similar to the argument made by proponents of the Johnson Amendment, such as the Freedom From Religion Foundation, who argue because religious organizations benefit essentially from a government subsidy, in exchange for that subsidy they relinquish some of their rights. These rights can at any time be reclaimed, but at the cost of losing the subsidy, ultimately leaving the choice between the two up to individual organizations.

The District of Columbia Circuit Court of Appeals has also taken up this issue more recently in Branch Ministries v. Rossotti (2000), regarding the constitutionality of the Johnson Amendment, but for violation of a different part of the First Amendment. In this case, a church had its tax-exempt status revoked for intervening in political campaigns, violating the Johnson Amendment. The church argued that revoking their tax-exempt status was a violation of the Free Exercise clause of the First Amendment, as in violating their right to freely exercise religion. To show the Free Exercise clause had been violated, the church had to establish their “free exercise right has been substantially burdened.” Branch Ministries v. Rossotti, 211 F.3d 137, 142 (2000). The court, however, held the Johnson Amendment did not violate the First Amendment because the church failed to establish that their free exercise right had been substantially burdened. Despite the claim by the church that by revoking their tax exempt status would threaten its very existence, the court determined this was overstated because the impact of revocation “is likely to be more symbolic than substantial,” because if they stop intervening in political campaigns they can regain their tax-exempt status, and even if they do not, “the revocation of the exemption does not convert bona fide donations into income taxable to the Church.” Therefore, the burden is not substantial enough to be considered a violation of the First Amendment. See, Branch Ministries, 211 F.3d at 142-143.

It seems currently that courts are finding the Johnson Amendment does not, in fact, violate the First Amendment. The Supreme Court has said in the past they believe tax benefits nonprofits are given are “a form of subsidy that is administered through the tax system,” which seems in line with the view of supporters of the Johnson Amendment and these two Court of Appeals cases. See, Regan v. Taxation with Representation, 461 U.S. 540, 544 (1983). They have not, however, delivered a decision on the constitutionality of the Johnson Amendment as it applies to religious organizations. Therefore, despite the Court of Appeals cases, the fight over this issue is unlikely to end until the Supreme Court formally rules on the Johnson Amendment as it applies to religious organizations once and for all.

Kate Lipman anticipates graduating from Boston University School of Law in May 2021.

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Mandatory Arbitration Clauses, Class Action Waivers, and the Need to Pass the FAIR Act

May 19th, 2020 in Analysis, Federal Legislation, Legislation in Court

Mandatory arbitration clauses and class action waivers have become a fact of life for many American employees.  A mandatory arbitration clause is contractual language that a company has a worker sign requiring that worker to resolve legal disputes in private arbitration — “a quasi-legal forum with no judge, no jury, and practically no government oversight”.  A class action waiver is contractual language that a company has a worker sign that forfeits that employee’s right to file any claims collectively with other similarly situated workers.  These provisions effectively strip away the rights of employees to challenge their employers in court with claims alleging wage and hour violations, discrimination, sexual harassment, and more.  Congress must enact the FAIR Act so that our legal system vindicates employee rights to seek justice, access our courts, and end abusive employer practices.

Historically, it was commonplace for American courts to decline legal enforcement of arbitration agreements, especially adhesive contracts (Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018)).  When Congress passed the Federal Arbitration Act (FAA) in 1925, legislative history suggests that the bill was intended to “enable merchants of roughly equal bargaining power to enter into binding agreements to arbitrate commercial disputes,” not to enforce mandatory arbitration agreements and class action waivers against workers in employment contracts.  Members of Congress envisioned the FAA to provide an “opportunity to enforce…an agreement to arbitrate, when voluntarily placed in the document by the parties to it”; they did not intend to enforce the law in cases “where one party sets the terms of an agreement while the other is left [to] take it or leave it.”  Until recently, courts upheld this interpretation of the FAA’s history and purpose (Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395 (1967))).

However, starting in the 1980s, this all changed.  In Gilmer v. Interstate/Johnson Lane Corp. (500 U. S. 20 (1991)), the Supreme Court held that the FAA requires mandatory arbitration agreements to be enforced against claims arising under the Age of Discrimination in Employment Act of 1967 (ADEA) antidiscrimination law.  Later, in Circuit City Stores, Inc. v. Adams (532 U. S. 105 (2001)), the Court held that the FAA’s §1 exemption for employment contracts involving “any...class of workers engaged in foreign or interstate commerce” should be construed narrowly to only apply to employment contracts involving transportation workers. 

These landmark decisions spurred a widespread use of arbitration clauses in employment contracts, and emboldened employers to challenge state common law and statute protections that historically limited the enforceability of mandatory arbitration provisions and class action waivers.  In 2011, the Supreme Court effectively overturned an earlier 2005 California Supreme Court case that had found legal protections for employees and consumers against the enforcement of class action waivers (AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011)).  In Am. Express Co. v. Italian Colors Rest. (570 U. S. 228 (2013)), although Respondents argued that the arbitration and class action waiver provisions in their contract were unenforceable because they made effective vindication of their legal rights prohibitively expensive, the Supreme Court held that: 1) the FAA presumptively requires enforcement of contracts of adhesion; and 2) the “effective vindication rule” does not require that one’s assertion of rights be affordable or not cost-prohibitive, but rather only requires that one’s assertion of rights be not prohibited outright.

Eventually, the Supreme Court directly addressed the question of whether employment contracts that include mandatory arbitration provisions are enforceable in Epic Sys. Corp. v. Lewis.  Employees argued that under the “saving clause” of the FAA, contractual language that violates the National Labor Relations Act (“NLRA”) right to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection” can be found unenforceable consistent with the FAA; this interpretation was adopted by the Ninth Circuit and consistent with NLRB precedent.  However, the Supreme Court held that neither the “saving clause” nor the NLRA altered the legal requirement to enforce arbitration agreements prescribed by the FAA.  The Court reasoned that state unconscionability defenses were not valid if they “interfer[ed] with fundamental attributes of arbitration,” such as individualized proceedings.  Furthermore, the Court found that §7 of the NLRA did not guarantee employees the right to class or collective action procedures.  Finally, the Court held that Chevron shouldn’t apply – based upon the NLRB’s 2012 decision – because: 1) the NLRB was interpreting the FAA, an act that the NLRB doesn’t administer; 2) the NLRB and the Solicitor General dispute the NLRA’s meaning and application; and 3) “there is no unresolved ambiguity for the Board to address.”

With arbitration clauses effectively privatizing our judicial system for many American workers, employees face information asymmetry and an imbalance of negotiating power with firms, and are therefore unable to contract under fair conditions.  By implementing changes to our laws that prohibit employers from forcing employees to sign away their rights, society can improve both economic efficiency and equity within labor markets.  Congress can do this by enacting the Force Arbitration Injustice Repeal (FAIR) Act.  This Act, passed by the House of Representatives in September of 2019, would ban companies from requiring workers and consumers to resolve legal claims in private arbitration, and would invalidate current mandatory arbitration clauses and class action waivers that have already been signed in consumer or employee contracts.

Passage of the FAIR Act would protect over 60 million American workers who have signed contracts with mandatory arbitration clauses and class action waivers.  Marginalized communities (including women and communities of color), who are the most likely to be subjected to arbitration agreements because they constitute a huge share of the labor pool in industries like education, retail, and healthcare that use mandatory arbitration agreements and class action waivers the most, would greatly benefit from the FAIR Act by gaining access to the courts to litigate sexual harassment claims, sex discrimination claims, and racial discrimination claims.  Furthermore, passing the FAIR Act would reduce the bias in employment disputes against employee interests, resulting from the conflict of interest between employers and arbitrators (employers pick the arbitration firm that will hear their case, pay the cost to hire the arbitrator or panel of arbitrators, and usually have a “cozy” relationship with the arbitrators they hire).  Studies have found that, because of the “repeat player effect,” arbitrators are often biased toward employers who continuously pick them to handle their cases; Professor Amsler from Indiana University Bloomington demonstrated that “workers are nearly five times less likely to win their case if the arbitrator had handled past disputes involving her employer.”

The FAIR Act has been introduced by Senator Blumenthal in the Senate chamber, and has thirty-eight co-sponsors, but lacks any Republican co-sponsors and has failed to receive any congressional action since it was initially referred to the Committee on the Judiciary.  While passage remains unlikely, it is incumbent on Congress to continue fighting for the FAIR Act.  Given the Supreme Court’s conservative crusade to interpret the FAA in a way that guts workers’ rights over the last forty years, it is crucial that Congress pass this bill to promote economic, labor, humanitarian, and social justice for all Americans.

Samuel Shepard graduated from Boston University School of Law in May 2020.

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How We Gonna Pay Last Year’s Rent?* Advocating Rental Housing Reform in Boston

May 19th, 2020 in Analysis, Federal Legislation, State Legislation

*Adam Pascal et al., Rent, on, Rent Original Major Picture Soundtrack (Warner Records 2005).

Unprecedented Rental Relief in Unprecedented Times

The novel coronavirus is disrupting so much of life in Boston, MA. From school and business closings to rising unemployment rates, more residents than ever are concerned than ever with affording basic essentials—including the rent due on the first of each month. The reality of how to pay for rent is substantial in Boston, where an estimated sixty percent of over seven-hundred thousand residents rent, making it the fourth most densely populated region in the United States after the New York Metro Area, Greater Los Angeles, and South Florida Metro Area.

As of April 20, Gov. Charlie Baker signed legislation placing a moratorium on non-emergency residential evictions and foreclosures during the novel coronavirus pandemic. Under this moratorium, landlords are not able to file eviction notices for the next 120 days, or for 45 days from the lifting of Gov. Baker’s emergency declaration, whichever comes first. Additionally, the moratorium bans late fees and negative reporting to credit-rating agencies for unpaid rents if tenants can prove pandemic-related issues with late payments.

Sam Dornan / Boston Globe

Figure 1: Baker signs bill blocking evictions during coronavirus crisis  (Tim Logan, Baker signs bill blocking evictions during coronavirus crisis,  Boston Globe (Apr. 20, 2020))

 Additionally, the federal government has passed a $2 trillion coronavirus rescue package—the CARES Act—including a 120-day moratorium on most evictions at properties that receive federal subsidies or that federal entities insure. Notably, the CARES Act does not apply to eviction proceedings in progress before President signed the legislation on March 27th, or to eviction cases meeting a number of exceptions discussed in the Act.

On April 4, Mayor Martin Walsh announced $3 million in city funds to help Boston residents at risk of losing their rental housing due to the novel coronavirus pandemic. The Rental Relief Fund is managed by the Office of Housing Stability, in partnership with non-profit partners Metro Housing Boston and Neighborhood of Affordable Housing. This program will provide eligible applicants with up to $4,000 in financial assistance to be used for rent. Additionally, the funding will only be available to households earning less than 80 percent of Area Median Income (AMI), which is $72,000 for a two-person household. A significant portion of these funds are reserved for households with extremely low incomes (under $25,000 for a single-person household), and very low-incomes or less than $42,000 for a single person (50 percent AMI). "In the midst of the COVID-19 pandemic, a national crisis at a scale not seen in our lifetime, it is imperative that all levels of government exercise all possible tools to ensure the health and safety of our residents, and to keep them stably housed," said Mayor Walsh.  (Thomas Stackpole, How Did Renting in Boston Become Such a Nightmare?, Boston Magazine (May 30, 2020))

Lane Turner/ Boston Globe

The Rent is Due Every Day: Framework Changes to the Rental Housing Market

The efforts of the federal and MA government to address the needs of renters in Boston are necessary measures to help residents maintain stable housing in these unprecedented times. Nevertheless, it is merely band-aid for the greater problem of the daily struggle for low-income Boston residents to make rent, or even establish tenancies. 

The Commonwealth provides financial assistance through the Residential Assistance for Families in Transition (“RAFT”) program in which up to $4,000 may be awarded to applicants to establish tenancies. However, with Fair Market Rent (“FMR”) rising in Massachusetts to $1,425 for a one-bedroom and $1,758 for a two-bedroom apartment, the $4,000 allocation from the RAFT program may not be enough to overcome the high bar to starting tenancies in Massachusetts for low-income families who are homeless or at risk of becoming homeless. The barriers to entry establishing a tenancy in MA include: the first full month of rent, last full month of rent, security deposit equal to the first month’s rent, broker fee equal to first month rent, and one-time fee covering installation of a new key and lock. The cumulative effect of these fees requires upwards of four months of rent to gain tenancy in Massachusetts. The impact of this legislation disproportionately bar low-income residents from securing and maintaining affordable housing.

When federal and state aid to low-income residents is not sufficient to help families begin tenancies, it is imperative to look to alleviating some of these barriers to entry to affordable housing. In addition to being the fourth most densely populated region in the United States, Boston also is also boasts the fourth-highest average rental market. Compared to the rental markets of New York City and Los Angeles, the Boston market imposes the broker fee, equal to one full month’s rent, which may be borne by the tenant. This differs to New York’s recent ban on broker fees, and Los Angeles’ burden shifting of broker fees to the landlord.

Massachusetts should consider following in the footsteps of their metropolitan neighbors and propose legislative action banning broker fees in order to decrease the burden to tenants establishing tenancy. In the alternative, the legislature should support the proposed bill H.4452: An Act Relative to Consumer Rights of Renters which shifts the burden of paying broker fees to the landlord with the following language: “[t]his fee shall only be paid by the lessor of the residential dwelling and shall not be transferred to or paid by an other party.”

Conclusion

The novel coronavirus is truly a pandemic affecting every area of daily life, but it’s disparate impact to low-income families towards their struggle to afford housing illuminates a deeper issue that needs to be addressed with expediency. The cost of securing and maintaining a tenancy in Boston is simply too high and not sustainable. As a result, the legislature should tackle broker fees directly to allow more residents the opportunity to initiate affordable tenancies in Boston. This may take the form of eliminating broker fees in their entirety, or shifting the burden to landlords to pay the fee, but ultimately the legislature should take action to protect the most vulnerable member in this time—low-income residents trying to establish and maintain affordable housing for themselves and their families.

Alexandra Trobe anticipates graduating from Boston University School of Law in May 2021.

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Post Haste: Why Reform of the US Postal Service is a Matter of Urgent National Concern

May 19th, 2020 in Analysis, Budget & Appropriations, Federal Legislation, Legislative Oversight

President Trump has been antagonistic to the United States Postal Service since the early days of his administration. In his plan for government reorganization, he called for the privatization of the post office. He has tweeted that the post office should charge Amazon more to deliver packages. Most recently, he has threatened to veto COVID-19 emergency funding if it contains direct funding for the post office.

Ultimately, change is needed with regard to the postal service. However, that change needs to be an expansion in the role of the post office in public life rather than a diminution of its functions. Because the postal service has a universal service obligation to provide all aspects of service at an affordable price to all communities in the United States, it already represents a vital service to thousands of Americans who are not perceived as “profitable” to serve by private companies. Leveraging that power by expanding the role of the postal service can be a powerful boon to democracy and an agent of financial inclusion for underserved communities. Pending legislative proposals exist to address these concerns, and urgent action is needed. These proposed expansions to the role of the postal service require an additional legislative intervention to support its financial viability. To increase access, facilitate participation, and promote strong and healthy communities, three key legislative reforms to the post office are urgently needed.

Postal Banking

The first potential legislative reform is the reintroduction of postal banking. Prior to 1967, the post office served an important role in providing basic financial services to thousands of Americans in rural and underbanked communities. Because the post office is a universal service, ensuring access to reliable mail service everywhere in the country, it was uniquely situated to ensure access to financial services like access to small loans, checking and savings accounts, and basic transactional services to communities not deemed profitable for traditional financial institutions to serve.

In 2017, 6.5% of households in the United States, or nearly 8.5 million households, were unbanked – meaning they had no formal bank account—and an additional 24.2 million were underbanked. These individuals are therefore forced to fringe or informal financial institutions, which often more costly to them because of high interest rates and lack the federal protection and oversight of traditional financial service providers. Re-establishing postal banking would create a formal institution to serve the basic financial needs of these communities, allowing them a greater degree of financial inclusion and economic participation without resorting to check cashers, payday lenders, or other informal actors.

USPS OIG

Postal banking is a popular proposal with a historical precedent that can be reenacted to improve economic and financial inclusion for marginalized communities. Senator Gillibrand introduced legislation in 2018 to allow the postal service to conduct limited financial activities, but the bill was never heard in committee. Passing legislation similar to Senator Gillibrand’s bill would represent a key step toward improving access to financial services, and therefore financial inclusion and economic participation, for marginalized communities.

National Vote-By-Mail

The next key legislative reform to the postal service must be a federal move to facilitate national vote-by-mail. Election law is a largely a matter of state law, as states are empowered to set the particulars of elections within their jurisdiction subject only to minimal Constitutional requirements. States can and have taken the lead on expanding vote-by-mail; according to the National Council on State Legislatures, five states conduct all elections entirely by mail, and another three states allow counties to opt into vote-by-mail for all elections. In total, 21 states allow vote-by-mail elections in some capacity. However, the crisis of the novel coronavirus outbreak has underscored the need to take federal action as evidenced by the Supreme Court’s refusal to extend the deadline for absentee ballots in Wisconsin’s April election and the at least 36 resulting cases.

Senator Klobuchar introduced legislation that, among other things, would allow for expanded absentee vote-by-mail in every state during emergency conditions. While the legislation represents a good first step towards federal action on uniform access to vote-by-mail, it is limited to declared emergencies and therefore does not go far enough. In order to manifest the full benefits of vote-by-mail – most notably increased ease of and access to voting, therefore increasing turnout and civic participation – a more comprehensive bill is needed. The Universal Right to Vote by Mail Act of 2009, which would have made it easier to vote by mail by prohibiting states from imposing additional requirements on vote-by-mail eligibility, represents the kind of sweeping, permanent reform that is necessary to facilitate broad access to voting, and therefore civic and democratic participation, among all communities in a safe and healthy manner.

Removing the Pension Prefunding Requirement

For the benefits of these reforms to fully manifest, it is crucial that the post office is financially viable. This requires a final legislative reform – removing the pension prefunding requirement imposed on the postal service in the Postal Accountability and Enhancement Act of 2006 (PAEA).

While advocates of privatization claim that the post office is losing money, those claims fail to capture the full context of the legal predicament faced by the office. PAEA requires the postal service to prefund employee pensions until 2056, a requirement imposed on no other federal agency. Removing this requirement and allowing the post office to adopt the pay-as-you-go model used by the private sector and other federal agencies would result in over $5 billion in additional cash flow to the service. In order to support the other changes to the role of the postal service, this prefunding requirement must be lifted. This would allow the postal service to remain financially viable in its greater capacity without requiring service price increases.

These reforms have champions, including Senator Gillibrand who continues to speak out vociferously in support of the postal service and its potential to facilitate civic and economic participation and to improve access and inclusion for communities across the country. The trio of reforms described here would raise the profile of the postal service and increase its role in the lives of thousands of people across the country. With the reintroduction of postal banking and expansion of voting by mail, a financially bolstered United States Postal Service can support strong communities in a way that private industry has been unwilling or unable to do. Decades of financial exclusion and disinvestment in rural and low-income neighborhoods and the global crisis of the coronavirus have demonstrated that we, as a country, cannot wait to act. Reinvigorating the postal service and its role in society are of urgent national concern.

Jordan Neubauer anticipates graduating from Boston University School of Law in May 2021.

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Emergency Actions Related to Paid Sick Leave Amidst Coronavirus

May 18th, 2020 in Analysis, Federal Legislation

Coronavirus COVID-19 has affected the United States unlike any other national crisis:  schools and higher education alike have shifted to virtual classes, millions of employees are working from home, restaurants and gyms are closed down and travel has stopped abruptly. Americans are being told to social distance for fear of spreading the virus. The future seems unclear, as there is no established end date in sight. The United States Congress attempted to respond accordingly passing legislation quickly in response to this crisis. The legislation has attempted to mitigate issues surrounding paid family leave. At this time, paid sick leave is essential to prevent sick people from being out in society, and workers need the opportunity to stay home or the transmission of Coronavirus (COVID-19) will steadily increase. It is important for the health of the public and of the economy, that Coronavirus (COVID-19) decrease, so the hospitals will no longer be at risk of being overcapacity and society can resume as normal.

Bill H.R.6201 - Families First Coronavirus Response Act was one of the first pieces of legislation aimed to restore the country. This bill was quickly signed into law as Public Law No: 116-127. According to the National Law Review, “the bill [went to the] Senate, on March 16 and [easily passed with few revisions]; President Trump publicly expressed support for the bill and in addition to various public health preparations, the bill includes many provisions that will directly impact employers.

“This [law] responds to the coronavirus outbreak by providing paid sick leave, free coronavirus testing, expanding food assistance, unemployment benefits, and requiring employers to provide additional protections for health care workers. Specifically, the law provides FY2020 supplemental appropriations to the Department of Agriculture (USDA) for nutrition and food assistance programs, including the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC); the Emergency Food Assistance Program (TEFAP); and nutrition assistance grants for U.S. territories.

At this time, paid sick leave is essential to prevent sick people from being out in society. For many Americans unpaid sick leave is not a viable choice. The need to earn money and stay on top of bills often overrides the desire to self-quarantine and get healthy. It is a problem of collective action. However, the severity of COVID-19 shows the importance for Americans to self-quarantine to prevent overwhelming the health care system as shown by this graph:

If sick workers are incentivized to stay at home during an illness as serious as COVID, this will limit the spread of the illness, and hopefully allow Americans to recover at home rather than filling up emergency rooms. Paid sick leave can “flatten the curve,” and although such measures prolong the existence of the virus, the effect on emergency medical systems are more manageable.

The Families First Coronavirus Response Act provides an employee may take up to 12 weeks of paid, job-protected leave if the employee:

  1. is complying with a requirement or recommendation to quarantine due to coronavirus exposure or symptoms, and cannot work from home
  2. is caring for an at-risk family member who is quarantining; or
  3. is caring for the employee’s child if the child’s school or place of care has been closed due to public health emergency.

However, the first 14 days of the leave may be unpaid. Employees may choose to use any accrued paid time off, including vacation and sick leave, to cover the initial 14-day period, but employers may not require them to do so. After the 14-day period, the employer must pay full-time employees not less than two-thirds of the employee’s regular rate for the number of hours the employee would otherwise normally be scheduled. For salaried employees, employers must pay two-thirds of the base salary for the weeks remaining after the initial 14-day period.

Violating the Emergency Paid Sick Time Act will be treated as seriously as a Violation of the Fair Labor Standards Act of 1938 (29 U.S.C. §206) (FLSA), meaning that the employers might be subject to substantial penalties under that Act including, but not limited to liquidated damages and fines, among other penalties. Additionally, the law attempts to expand food assistance and unemployment benefits. The law modifies USDA food assistance and nutrition programs to:

“allow certain waivers to requirements for the school meal programs, suspend the work requirements for the Supplemental Nutrition Assistance Program (SNAP, formerly known as the food stamp program), and allow states to request waivers to provide certain emergency SNAP benefits.” You can access more information about this here.

Additionally, the law provides, “$500 million to provide access to nutritious foods to low-income pregnant women or mothers with young children who lose their jobs or are laid off due to the COVID-19 emergency.” This extra effort is very important in order to support American women and children at this time. Moreover, according to the government sources the law also establishes a federal emergency paid leave benefits program. Additionally, the law also aims to expand unemployment benefits and provide grants to states for processing and paying claims, requires employers to provide paid sick leave to employees, establishes requirements for providing coronavirus diagnostic testing at no cost to consumers, and to temporarily increase the Medicaid federal medical assistance percentage (FMAP).

This pandemic has been unprecedented in our nation’s history. U.S. legislators have scrambled to address the COVID crisis and mitigate the damage to both the health of the public and the economy. The Families First Coronavirus Response Act  assists multiple facets of life affected by the virus by providing paid sick leave and free coronavirus testing, expanding food assistance and unemployment benefits, and requiring employers to provide additional protections for health care workers. The law does a good job of solving the collective action problem surrounding this. Additionally, it will directly assist the hospitals from becoming over capacitated. Ensuring that infected citizens aren’t compromised or pressured to go to work is a critical component of defeating the spread of this virus.

 

Diana Alexandra Martinez anticipates graduating from Boston University School of Law in May 2021.

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To Combat Adolescent Tobacco Use, Federal Law Raises Purchasing Age to 21

May 14th, 2020 in Analysis, Federal Legislation, Local Legislation, State Legislation

In the final weeks of 2019, in the wake of an outbreak of vaping-related illnesses and death, the federal government raised the minimum age of tobacco sales from 18 to 21. The widely-supported amendment to the Food, Drug, and Cosmetic Act was included in an appropriations bill that Congress approved on December 19th and President Trump signed into law the next day. The new law makes it illegal to sell tobacco products, including electronic cigarettes/vapes, to anyone under the age of 21 throughout the United States. While the law is a positive step for public health, it is long overdue and lacks much needed enforcement enhancement measures. 

The federal government followed in the footsteps of 19 states, Washington D.C., and hundreds of local governments which had already increased the tobacco age to 21. The push to increase the tobacco age is referred to as the Tobacco 21 movement. The first Tobacco 21 law was enacted in Nedham, Massachusetts in 2005. In 2013, New York City became the first major city to pass a Tobacco 21 law. The wave of state-level Tobacco 21 laws began in 2016 with Hawaii and California, and continued with

Hawaii State Capitol Building
Honolulu, 1969

Washington and New Jersey in 2017, Oregon, Maine and Massachusetts in 2018, Virginia, Illinois, Delaware, Arkansas, Maryland, Vermont, Texas, Connecticut and Ohio in 2019, and Washington, Utah, Pennsylvania, and South Dakota in 2020. New Mexico is the latest state to pass a tobacco 21 law which will go into effect in 2021.

The Tobacco 21 movement is supported by a strong foundation of research demonstrating the importance and efficacy of raising the age. In the Surgeon General’s 2012 report on Preventing Tobacco Use Among Youth and Young Adults, the epidemiological research showed that “adolescence and young adulthood represent[s] a time of heightened vulnerability to tobacco use and the initiation of cigarette smoking.” The rationale behind increasing the age from 18 to 21 is to reduce the number of people who begin smoking (or vaping) by making it more difficult to access tobacco during the years of highest vulnerability. And studies show that 98% percent of smokers begin before 26 years old and 90% of daily cigarette use begins before 20 years of age.  Raising the age not only makes it more difficult for 18-20 year-olds to purchase tobacco, it also reduces access for minors who often rely on friends who are 18 and older to purchase tobacco products for them. In fact, it is estimated that “90% of persons who purchase cigarettes for distribution to minors are under 21.

In addition to conventional cigarettes and tobacco products, Tobacco 21 laws also prevent people under the age of 21 from buying electronic cigarettes or vapes. This is because electronic cigarettes are deemed to be tobacco products by the FDA. Electronic cigarettes are the most commonly used tobacco products among youth today, and a 2018 study showed that 1 in 5 high school students and 1 in 20 middle school students use these products. Those numbers were likely even higher in 2019 when the mysterious vaping illnesses, which prompted this legislation, began. Even before the outbreak, the high rate of electronic cigarette use among American youth was troubling. Not only were public health officials warning of the known harms associated with vaping (such as potential for lung damage, and dangers of nicotine consumption for brain development), but also the universe of unknown risks associated with vaping as these products are relatively new and rapidly changing.

The vaping illness outbreak began in August 2019, when vaping product users— including many teens—suddenly began presenting to emergency departments with severe lung injuries. By December 4th, the Centers for Disease Control and prevention had confirmed over 2,200  cases and 48 deaths related to the outbreak. The reason for the sudden increase in vaping related illness was not immediately clear, and it stirred up panic among parents of teenagers and mobilized public health professionals who had long feared the harmful effects of vaping.

With the outbreak capturing the nation’s attention, Congress and the Trump administration were under pressure to do something to address the problem. With such powerful momentum in the Tobacco 21 movement, public health advocates and policy makers had already began calling for a federal Tobacco 21 law years ago (read more about that here, or here). Passing a federal Tobacco 21 law to address the vaping illness outbreak was an easy choice because, in contrast to more drastic measures such as banning electronic cigarettes entirely, raising the age enabled Congress to respond to the fear and public outcry surrounding the vaping illnesses in a manner that was actually supported by tobacco and vaping companies. While some advocates feel that raising the age was not a drastic enough measure to combat the vaping epidemic, it is certainly a positive step for public health and to combat tobacco consumption generally.

While the new law will make it more difficult for those under 21 to access tobacco products, the efficacy will depend largely on proper enforcement of the law. Enforcement of age restrictions on tobacco purchasing has been demonstrably poor, with many retailers still selling tobacco products to minors before the new law became effective. While amending the FDCA, Congress could have used this opportunity to not only raise the tobacco age but also to ramp up the enforcement mechanisms contained within the Act, by increasing funding, penalties or requirements on the number of compliance checks. Unfortunately, that did not occur and the new law. Without a change in the law to effectuate stricter enforcement measures, it will be difficult for the federal and state governments to oversee enforcement of the law and to make sure that retailers properly comply.

The federal Tobacco 21 law is a bittersweet victory for public health champions who have been warning against the risks of vaping and campaigning for an increase in the tobacco age since long before the mysterious vaping illnesses began. In order for our tobacco laws to truly be successful, our legislators must increase enforcement and properly fund measures that prevent the initiation of tobacco use. As with all areas of public health, we must act to prevent —not just respond once crises have already begun.

Rebecca Mashni graduated from The Ohio State University in 2015 with a B.S. in Public Health and graduated from Boston University School of Law in May 2020 with a J.D.

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Supplying Housing Demand: Gov. Baker’s Proposed Housing Choices Act

May 14th, 2020 in Analysis, State Legislation

There is no question that Massachusetts generally, and the Boston area in particular, is mired in an affordable housing crisis. Renters and would-be buyers are heavily burdened with disproportionate housing costs and are forced to compete for a limited supply of units. As of 2019, Massachusetts rental costs climbed to the third highest in the nation, surpassed only by California and Hawaii, making this the rare occasion in which beating New York isn’t something to celebrate.  To increase housing, the state must address the burdensome rules that hinder the development of new units; especially multifamily homes.  One possible solution is the proposed Housing Choices Act.

Though there are many facets to this issue and no simple solution, Gov. Charlie Baker is focusing on attacking the restrictive zoning rules and arduous permitting processes.  Gov. Baker argues these rules are causing shortfalls in housing stock, driving up prices as demand far outstrips supply. Gov. Baker’s bill, the Housing Choices Act, was stalled throughout 2019, until late December when it was referred to the House committee of Ways and Means.

The Act has garnered the support of organizations such as the Boston Medical Center, Real Estate Bar Association, Massachusetts Municipal Association, Massachusetts Association of Community Development Corporations, Metro Housing Boston, and many more.

Gov. Baker’s administration has set a target of building 135,000 new housing units by 2025 and the Governor believes rezoning to allow more multifamily construction is a key piece in increasing housing production. Since 2017, Gov. Baker’s Housing Choices Initiative has incentivized municipalities to help meet this target by providing grants to support housing construction, but access to those grants still requires communities to vote in favor of rezoning.  The Housing Choices Act would simplify rezoning by reducing the threshold of votes needed to pass certain kinds of progressive, production-oriented zoning changes in Massachusetts municipalities from two-thirds to a straight majority vote. Massachusetts is among the few states which require a supermajority for these kinds of zoning votes. The Governor calls the Housing Choice Act a “critical” piece of legislation in pursuit of production goals because it will ease that rezoning process.

Among the zoning changes to which the new straight majority vote would apply are the adoption of “smart-growth” districts under Ch. 40R, which governs….   “Smart growth” includes the construction of multi-family buildings, special permits for high-density construction, the reduction of size and parking requirements, transit-oriented projects with a set percentage of affordable units, and permission to construct accessory dwelling units.

Criticism: Too Narrow or Too Broad?

Critics such as Darnell Johnson, regional coordinator at Right to the City Boston, however, believe that the bill “ignore[es] the needs of working families” and will only lead to more luxury condos and other housing out of reach for most Massachusetts residents. Chris Norris, executive director Metro Housing Boston, concurs, and points out that with 250,000 low-income households forced to spend upwards of 50% of their income on rent, “incentives alone are not sufficient to product affordable housing.” Norris cites the fact that Ch. 40R was passed in 2004, was expected to generate 33,000 new units over ten years, and more than $20 million has been poured into its incentives.  As of 2017, however, this law has produced only 3,500 units, less than half of which are designated as affordable.

The Massachusetts State House
Boston, 1787

Advocates within and without the Baker administration counter that this bill is not meant to be a panacea for housing woes but rather a step in the right direction. Clark Zeigler, executive director of the Massachusetts Housing Partnership, points out that right now good housing proposals are defeated despite winning majority support because of the current two-thirds voting requirements. Such was the case in Salem, where a measure to increase accessory dwelling units, one of the Housing Choice Act’s targets, won the majority, but not supermajority, and thus failed to pass. Salem Mayor Kim Driscoll supports Gov. Baker’s efforts to prevent situations like this, calling on local authorities to pursue a “strong partnership with state leaders.” Once this problem is solved, MHP and other affordable housing advocates can and will continue pushing for further means of providing relief to those overly burdened by housing costs. In an official statement, CHAPA (Citizens’ Housing and Planning Association) made its support of the Housing Choice Act clear for the same reasons. “Lowering the super majority threshold required for zoning changes will empower the simple majority of people in a community to vote ‘Yes’ for housing.” CHAPA sees the bill as an essential opportunity to help communities “encourage housing development and undo policies that prevent housing production and perpetuate segregation.”

Another source of criticism is a fear that the bill would inevitably cause unwanted and overly dense construction which will damage the character of older neighborhoods. Similarly, Rep. Smitty Pignatelli (D-4th Berk.) proposes that the switch to straight majority be predicated on local approval out of concern for state-level infringement on local autonomy. Sen. Brendan Crighton (D-Lynn), co-chairman of the Housing Committee, does not believe this is a real cause for concern, insisting that the bill “doesn’t take away any local control. . . [but rather] puts together a more common-sense approach that says a majority of folks can make a decision on the matter.” He sees this and similar legislation as crucial because Massachusetts’ housing production is half of what it was in the 1970s while rent has risen by 75% over the past twenty years.

Some communities, such as Needham and Springfield, believe they and some 70 other municipalities should be exempt from the bill because 10 percent or more of their housing stock already meets state “affordability” thresholds. Needham Select Board Chairman John Bulian sees requiring his town to comply would be penalizing it despite its having exceeded Massachusetts’ affordable housing percentage goals. Such complaints, however, seem to miss the larger picture of spurring more housing growth by enabling local residents greater control over their zoning through simplified zoning vote processes.

Massachusetts is in a housing crisis—one that can only be fixed by finding a way to build more housing.  An important first step is to reform the rules and processes that restrict the needed housing units.

 

Kellen Safreed anticipates graduating from Boston University School of Law in May 2021.

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