Tagged: Boston University Law School

Sanctuaries With Guns? Turning The Rule Of Law Upside Down; by Delegate David Toscano (D-Charlottesville)

December 18th, 2019 in Analysis, Federal Legislation, Local Legislation, State Legislation

The Tazewell County, Virginia, Board of Supervisors recently jumped aboard the fast-moving “Second Amendment sanctuaries” train. In doing so, they embraced positions fundamentally at odds with state and federal constitutional law. Passing resolutions opposing certain laws or protesting governmental action is perfectly consistent with our traditions as a democracy, and no one should oppose the rights of citizens and their representatives to speak their minds. But Tazewell, and a number of other localities across Virginia, want to do much more. As Eric Young, an attorney and the county’s Administrator, put it, “our position is that Article I, Section 13, of the Constitution of Virginia reserves the right to ‘order’ militia to the localities; counties, not the state, determine what types of arms may be carried in their territory and by whom. So, we are ‘ordering’ the militia by making sure everyone can own a weapon.” Other counties are announcing different schemes if gun safety laws are enacted: for example, the Culpeper County sheriff pledged to deputize “thousands of citizens” so they can own firearms.

Conservatives have railed for years against so-called “sanctuary jurisdictions,” criticizing localities that refuse to cooperate with federal immigration policies they deem heartless and ineffective. In the past year, however, some conservative lawmakers have taken a page from the progressive playbook, employing sanctuary imagery in opposition to gun safety legislation they deem to be an unconstitutional restriction of their rights under the Second Amendment.

The two approaches are classic cases of false equivalency. Jurisdictions that proclaim themselves sanctuaries for immigrants do not seek to violate the law; they simply refuse to engage local law enforcement in supporting actions that are federal responsibilities. They do not block the law, but simply insist that it should be enforced by those who have the responsibility to do so. For some proponents of so-called gun sanctuaries, however, the goal is to prevent enforcement of state law that the jurisdiction (not a court) deems unconstitutional.

After Democrats won majorities in both chambers of the Virginia General Assembly, fears of stricter gun regulations have inspired a rise in Second Amendment sanctuary activity in Virginia. Sanctuary efforts are driven mainly by the Virginia Citizens Defense League, a gun rights group to the right of the NRA.  My office’s analysis of recent news accounts indicates that before November 5, just one county had passed a resolution; since the election, at least 80 localities (counties, cities, or towns) have passed some form of sanctuary resolution, and as many as 34 more are considering their adoption.

 

A REBELLION EMERGES
Second Amendment sanctuaries exploded onto the national scene in early 2019 after newly-elected Democratic Gov. J.B. Pritzker pledged to pass gun safety measures in Illinois. Within months, 64 of the state’s 102 counties passed sanctuary resolutions. After New Mexico expanded background checks in 2019, 30 of 33 counties declared themselves Second Amendment sanctuaries. Similar actions have either been taken or are under consideration in Colorado, Oregon, Washington state, and now Virginia.

In some cases, these resolutions simply register an objection to any infringement on gun owners’ rights. But some Virginia localities have gone further, indicating that they will not enforce state law that they deem unconstitutional. Some proponents have even resurrected words like “nullification” and “interposition,” terms first used extensively by Southern secessionists prior to the Civil War, and more recently during the “massive resistance” to federal laws requiring desegregation in the 1960s. They argue that constitutional officers in Virginia, such as Commonwealth’s Attorneys and Sheriffs, have discretion not to enforce laws that they consider “unconstitutional.” In Virginia, there has always existed some debate about the independence of these officers, but, while they are creations of the Constitution, their duties are nonetheless “prescribed by general law or special act.” In short, sheriffs may be “constitutional officers,” but they are not “constitutional interpreters.”

FLASHPOINTS IN THE CULTURE WARS

The emergence of these sanctuaries demonstrates a growing rift in our nation. For residents in many rural areas of our country, guns are viewed as part of their way of life, one some fear that they will lose due to national and state changes. Most gun owners are law-abiding citizens, and any effort to limit anyone’s access to firearms is perceived as a direct attack on many things that they hold dear. During the Obama years, the manufacture and purchase of firearms increased in dramatic numbers in part due to unfounded fears that the government would try to take away guns. Voting to declare themselves “sanctuaries” is a way they can reassert some control over events that they feel are putting them at risk.  For these communities, it matters little that reasonable gun safety proposals have largely passed constitutional muster, or that most proponents of these measures have no intention of taking anyone’s guns away unless it can be shown, in a court of law, that they are a danger to themselves or others.

At the same time, the general public is increasingly supportive of certain gun safety measures. An April 2018 poll found that 85 percent of registered voters support laws that would “allow the police to take guns away from people who have been found by a judge to be a danger to themselves or others” (71 percent “strongly supported”). These measures, called Emergency Risk Protection Orders (ERPO), or “red flag” laws, create judicial procedures by which persons with serious mental health challenges deemed a threat to themselves or others can have their weapons removed until their situation is resolved; courts can be engaged to protect the rights of the accused. And a March 2019 Quinnipiac poll reported that 93 percent of American voters support a bill that would require “background checks for all gun buyers.”

The energy behind support of gun measures like “red flag” laws is generated by concern for mass shootings, which are statistically rare but dramatic in their public impact, and the increasing numbers of gun-related suicides, which impact families and communities in quiet but devastating ways. On the latter front, there is a certain irony that some communities which have embraced Second Amendment sanctuary status also have higher gun suicide rates than other communities in their state. In Colorado, for example, nine of the 10 counties with the highest suicide rate over the past 10 years have declared themselves “Second Amendment sanctuaries,” many after the state passed an ERPO law in 2019. Of the 24 Colorado sanctuary counties for which suicide data is available, 22 (or 92 percent) had firearm suicide rates above the state average. Similarly, in Virginia, 36 of the 51 localities that have adopted a resolution to date and for which firearm suicide data is available have rates higher than the state median.

Virginia State Capitol, 1785
Architects: Thomas Jefferson & Charles-Louis Clérisseau

Recent polling in Virginia tells us that citizens of the Commonwealth are in step with the national trends documented above: Roanoke College’s Institute for Public Opinion Research recently released polling results which show that 84 percent of respondents favor universal background checks, and 74 percent support allowing a family member to seek an ERPO from a court.  Yet in the very same pool of respondents, 47 percent believe it is more important to protect the right to own guns than to control gun ownership.  The only way to make the math add up is to recognize that some people who strongly support Second Amendment rights may also support at least some reasonable gun safety measures—an approach the “sanctuary” advocates would never adopt.  But even former Supreme Court Justice Antonin Scalia might have had problems with some of the arguments being advanced by proponents of sanctuaries. “Like most rights,” he wrote in District of Columbia et. al. v. Heller, “the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”  In short, rights under the Second Amendment have never been absolute.  And under both the national and state Constitutions, our courts are tasked with determining the constitutionality of laws—not local sheriffs.

HOME RULE VS. DILLON RULE
Proponents of Second Amendment sanctuaries have another problem in Virginia; the Commonwealth is what we call a “Dillon Rule” state. This means that if a power is not specifically permitted to a locality, state law rules. Progressives have been especially critical of Dillon Rule arguments in years past, believing that they have prevented localities from enacting policies—from local minimum wage ordinances to gun prohibitions—that seek to go further from state law. They have rarely been concerned that more conservative localities, if granted greater “home rule,” might enact policies, such as environmental regulations or building codes, that are more lax than state law. The Second Amendment sanctuary rebellion may prompt some to reexamine their views about how much additional power should be granted to localities.

The Virginia state legislature will soon consider several major gun safety measures, and opponents will likely strongly resist; as one county supervisor has said, “[W]e need to show them a crowd like they have never seen. They need to be afraid and they should be afraid.” Legislators should always be attuned to any unintended consequences of the laws that they pass; that is one reason why we have a deliberative process before bills are passed. But to leave the determination of whether to enforce duly-passed laws totally in the hands of sheriffs and local officials with discretionary power to determine their constitutionality is to turn the rule of law upside down, and is a direct attack on republican government and the Constitution itself.

David Toscano has represented the 57th district in the Virginia House of Delegates since 2006, and from 20011-2019 Del. Toscano served as the House’s Democratic Leader.  His forthcoming book is titled, In the Room at the Time: Politics, Personalities, and Policies in Virginia and the Nation.

 

A modified version of this opinion piece appeared on Slate.com.

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Slowing Chipping Away at Child Marriage in the US

April 20th, 2019 in Analysis, State Legislation

Child marriage is condemned by the international community and the stated goals of the U.S. State Department.  In fact, the State Department’s “U.S Global Strategy to Empower Adolescent Girls” calls marriage before 18 a “human rights abuse.”  However, most states still have laws that allow for the marriage of children under the age of 18.  Eighteen states don’t even have a minimum age that a child can be married.  So far in the US, only two states, New Jersey and Delaware, have banned all child marriages with no exceptions.  Between 2016 and 2018, eleven states have passed laws that limit child marriage but still keep some exceptions, mainly relating to parental consent and 16 or 17-year-olds marrying someone within a few years of their own age.  Ten additional states have introduced bills curtailing child marriage, many of which were sent to study or died at the end of the legislative session in 2018, but with plans to be reintroduced in the next session.

The advocacy organizations leading the charge for new protections for minors are insistent that only a limit of 18 years old with no exceptions is good enough; especially since some of the legal exceptions exacerbate the problem.  For example, requiring only parental consent, especially when only a single parent’s consent is needed for marriage under the age of 18 leaves minors unprotected from marriage due to coercion.  A few states still allow for exceptions when the girl is pregnant, even if she is below the age of consent.  Pregnancy, of course, is one of the situations where girls are most often coerced into marrying men, some of whom are their rapists.

Earlier this month, Ohio joined the ranks of states attempting to fix this problem, if imperfectly.  House Bill 511 was introduced by

Ohio State House
Columbus Ohio
1839

Republican Rep. Laura Lanese and Democratic Rep. John Rogers last year with the intention of updating the former law, which treated boys and girls differently.  Previously, girls could get married at 16 with parental consent, although boys could not get married below the age of 18 without the consent of a juvenile court.

The new law, which was signed by Governor John Kasich just before he left office in January,  creates gender equality by requiring both boys and girls to be 18 in order to get married.  The only exemption allowed is a marriage at 17 if there is no more than a four-year age difference, if a juvenile court consents and requires a 14 day waiting period.  In the processes of determining whether to give consent, the court is instructed to consult with the parent or guardian, and appoint a guardian ad litem.  Additionally, a court must determine if the minor is in the armed forces, employed and self-subsisting or otherwise independent of a parent or guardian, and if the minor is free from force or coercion in the decision to marry.  The couple must also have completed marriage counseling satisfactory to the court.  Additionally, a provision was added that requires official proof of age.

There were strong reasons for the Ohio Legislature to act.  According to the Dayton Daily News, over 4,400 girls aged 17 or younger were married in Ohio between 2000 and 2015.  Of those, 59 were 15 or younger, and three were 14 years old.   Additionally, according to the Ohio Department of Health, there were 302 boys under the age of 17 were married between 2000 and 2015, with the approval of parents or a juvenile court.  A significant driver of the child marriages seems to be when a minor girl gets pregnant by an older man.

These types of marriages have harsh consequences including being 50% more likely to drop out of high school, three times more likely to experience psychiatric disorders, and divorce rates of almost 80%, which can more than double the chance a teen mother ends up in poverty.   Additionally, women who marry as minors lack the ability and resources to remove themselves from a harmful relationship.  For example, most domestic-violence shelters cannot accept minors, minors who leave home are considered runaways, and child-protective services can usually do little in regards to legal marriages. Furthermore, a child is unlikely to have the resources to escape an abusive relationship, pay attorney fees, or even sign any other legally binding document.

In Massachusetts, there is currently no age requirement for marriage, with minors requiring a half page petition, and approval by parents and the courts.  The statistics for child marriages in Massachusetts consist of 1,200 children as young as 14 married from 2000 to 2016.  In the time period from 2005 to 2016, 89% were underage females married to adult men.  In 2018, Democratic Sen. Harriet Chandler and Democratic Rep. Kay Khan introduced bills (S785/H2310) to end all child marriage with no exceptions.  The bill stalled, however, because as Democratic Rep. Khan noted because legislators were not been able to hear from victims who want to talk about their experience.  The bill was refiled at the beginning of the new legislative session that began in January.

Slowly, but surely, states are addressing the evils that come with child marriage.

Amanda Simile will graduate from Boston University School of Law in May 2020.

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Stop the Clock: Implications of Switching Time Zones

April 20th, 2019 in Analysis, Federal Legislation, State Legislation

The holiday season is joyous for many reasons; from family, friends, and food, there is ample joy and merriment to go around. There is one aspect of the season that doesn’t match these factors; especially in New England – darkness. At the outset of winter, on December 21st each year, the sun sets in Boston at 4:11pm. There are many negative effects of darkness setting in before the end of the workday – with increased crime, traffic accidents, and seasonal depression being one of the most paramount. Boston’s sunset is not the earliest in the area, with municipalities in Maine experiencing sunsets earlier than 4pm; but it is the earliest of the major cities, beating out Buffalo, NY despite being further south.

Early sunsets do not become apparent in New England until clocks fall back in line with the change from Daylight Savings Time. Daylight Savings is a federal program instituted during World War II that the country has become accustomed to; the federal legislation only permits states to opt out of the program, but it does not allow states to make the program permanent, which would keep the clocks from falling back an hour. Hawaii and Arizona have opted out of the program – made available through the US Energy Policy Act of 2005, allowing any state that lies entirely within one time zone to opt out.

New England states, primarily Massachusetts and Maine at this point, have been considering a change to the Atlantic Time Zone

The Sacred Cod and House Clock
Massachusetts House Chamber

in order to increase the number of waking hours with sunlight. With a change to Atlantic Time, and subsequent opting out daylight savings, New England would be out of sync with the rest of the Eastern Time Zone from November to March, or the period in which clocks “fall back” in line with daylight savings in the Eastern Time Zone. A transfer to Atlantic Standard Time – which includes Puerto Rico, the Virgin Islands and eastern Canada – would mean jumping an hour ahead of the Eastern time zone from November to February. The time zones would align from March to October.

While the benefits of having an extended amount of light in the evening hours are readily apparent, there are several drawbacks that accompany a change. Early risers in particular, who are likely accustomed to the sun being out while they start their days have reason to complain. School aged children may be leaving to their schools in darkness in the morning, and businesses that transact on financial markets may be put out of sync with the markets they depend on.

If New England were to change to Atlantic time, there would be a two-step process. First, the interested states would have to decide to leave. Second, the states would have to consult the US Department of Transportation, the cabinet agency that regulates time zones. States, municipalities, business interests, and others would have the opportunity to weigh in during both steps.

There could be major issues with “commerce, trade, interstate transportation and broadcasting” if one state moves ahead one hour while its neighboring states remain in the Eastern Time Zone. It seems to be a requirement of widespread support and agreement for any change in this area to take effect. Lawmakers in Maine might support the change – in May 2017, Maine’s Senate passed a bill that would move the state to the Atlantic Time Zone — if approved by residents in a state-wide referendum. Maine conditioned the change, subject to their approval, on Massachusetts and New Hampshire.

Some states seem to have considered the idea and decided against it, with the New Hampshire Senate voting against a bill that would move the state to the Atlantic Time Zone by a 16 to 7 vote; at the same time, the bill passed the house with a voice vote. While there has yet to be an affirmative move, the proponents of the change are enlivened by the action around the issue and are hopeful for the future.

Massachusetts established a commission to study the issue. In a neutral report neither supporting or disavowing the change, the commission stated its findings that "People tend to shop, dine out, and engage in other commercial activities more in after-work daylight,". . . "Year-round DST could also increase the state's (competitiveness) in attracting and retaining a talented workforce by mitigating the negative effects of Massachusetts' dark winters and improving quality-of-life." More daylight could also reduce street crime, on-the-job injuries and traffic fatalities, and boost overall public health, the commission found.

States in the Northeast seem intrigued by the change, but alterations of the particulars of their citizen’s days are deeply personal to their citizens may be a drastic change to take without widespread public support. In Arizona, the effects of their non-adherence to daylights savings time are apparent when the state is out of sync with the rest of the surrounding states – constant clarification of what time is in effect, setting different meeting times, etc. Results on an individual basis are a mixed bag, with businesses that are purely local and that thrive in the daylight being supporters of the longer day due to increased business, and those who constantly run up against timing differences by virtue of dealing with other regions.

It will be interesting to observe if public support for a time zone change increases as people in New England become aware that doing so is a possibility to increase their daylight hours in the depths of winter. In any case, it is clear that the states’ legislatures have identified it as a possible issue.

 

Drew Kohlmeier is a student in the Boston University School of Law Class of 2020 and is a native of Manhattan, KS, graduating with a degree in Biology from Kansas State University in 2016. Drew decided on Boston for law school due to his interest in health care and life sciences, and will be practicing in the emerging companies space focused on the life sciences industry following his graduation from BU.

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The US House Must Start Protecting Undocumented Minors

April 20th, 2019 in Analysis, Federal Legislation, Legislative Oversight

The 2018 midterm election should be considered less of a “blue wave” and more of a call to action made by the people of the United States to their House Representatives. The Trump administration has made many an egregious decision since 2017 and the Democrats of both the House and the Senate have unable to block such decisions due to their minority status. The Democrats must use their majority status in the House to actively combat the Trump administrations treatment of Latin American and other undocumented minors in detention.

Beginning in April 2018, Trump’s “zero tolerance” immigration policy led to the separation of infants from their mother’s arms, children from their father’s reach, and siblings from their brother’s or sister’s hands. Family separation shocked the conscience of the nation and the outcry against the policy’s ramifications drove President Trump to sign an executive order “ending” family separation. Thousands of children remained in detention, separated from their parents, for months after the executive order. In June 2018, a U.S. District Court Judge issued a preliminary injunction against the government, requiring that children be returned to their parents within 30 days. Come late October, the Department of Homeland Security still had hundreds of separated children in its custody. The government’s failure to comply with the injunction filled public discourse with calls to act to free the children. Some of the parents of these children who have been deported to the countries they fled have made the soul-churning decision to leave their children in the United States because returning the children to their country of origin could mean death. Despite the alleged “end” of the family separation policy, 81 children have been separated from their families since President Trump’s executive order.

Another source of turmoil within the United States’ immigration system is the lack of representation for these children. Children, who do not speak English and are as young as 3 years old, are representing themselves against the U.S. government in immigration courts. They are being led to make decisions that are not in their best interest. For example, a 5 year old girl named Helen was told to sign her name on a form that waived away her rights to a Flores bond hearing, which would have guaranteed her a hearing in front of an immigration judge in far less time than she spent at a shelter, separated from her family. While organizations like the American Civil Liberties Union, private firms, and law school institutions are providing legal services to help bring families back together, the number of children essentially being forced to represent themselves is too high.

The psychological toll on the detained children who were reunited with their families is immeasurable. There have been documented cases of young children, unable to understand why their parents suddenly disappeared from their lives, rejecting or distrusting their parents upon reunification. Other children live in fear of being taken again and anxiously cling to their parents. In December 2018, the nation took notice of the deaths of two undocumented children, one a 7 year old girl and the other an 8 year old boy, both from Guatemala, who died from medical complications while in Border Patrol custody.

More and more questions are being raised in Congress about how to address the turmoil of the Trump administration’s immigration landscape. Despite increased attention on this humanitarian crisis at the border, the problem has gotten worse over the past few months.  In fact, Boston University Law Professor Sarah Sherman-Stokes reports that a team of BU Law professors and students spent a week at the border in March.  They used sharpie markers to write parents' contact information on their children in case they were separated.  Despite this, the Trump White House seems to be now moving toward an even harder line toward migrants; complete with a purge of Homeland Security leadership.

At this point, there should be no compromise by Democrats regarding the treatment of undocumented children and their families. Now that Democrats have a deciding vote in the House, they must use that vote, the voice their constituents gave them--and especially their oversight powers--to protect the voiceless and vulnerable children in DHS custody.

This may be finally happening.  On April 17th, Elijah Cummings (D-Md.), chair of the House Oversight Committee, invited the architect of Trump's immigration policy Stephen Miller to appear before the Committee:

"I am offering you an opportunity to make your case to the Committee and the American people about why you -- and presumably President Trump -- believe it is good policy for the Trump Administration to take the actions it has, including intentionally separating immigrant children from their parents at the border to deter them from coming to the United States, transferring asylum seekers to sanctuary cities as a form of illegal retribution against your political adversaries, and firing top Administration officials who refuse orders to violate the law."

Miller is scheduled to appear before the Oversight Committee on May 1.

The safety of children should not be a partisan issue, but if anyone is going to act to ensure the safety of immigrant children, it should be the newly elected House of Representatives. The House should pressure the Senate and President to abide by the United Nation’s guidelines on the humane treatment of migrant children and their families and enforce their implementation. Any derogation leaves room for more horrifying tales of assault, abuse, trauma, and deaths of innocent children who were only trying to avoid such fates in their homelands. The House should also legislate to protect the Flores rights of unaccompanied minors and require that these minors be provided with representation in front of immigration courts.

The international community has condemned President Trump’s treatment of migrants, documented and undocumented, asylum-seeking and non-asylum-seeking, on several occasions, but some of the loudest condemnations fall upon the separation of families and treatment of children. Some governments and organizations have gone so far to call the family separation policy a humanitarian crisis and illegal. Let this moment in our nation’s history not go down as a complete humanitarian failure but as a showing of what the people can do to try and rectify the mistakes made by discriminatory policymaking.

 

Cassandra Castro will graduate from Boston University School of Law in 2020.

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The Future of Supervised Injection Sites in Massachusetts and Beyond

April 20th, 2019 in Analysis, Federal Legislation, State Legislation

With Massachusetts and the country facing a rising opioid overdose epidemic, lawmakers are looking to some controversial measures to curb overdose deaths. One of those measures being considered is supervised injection sites, also called safe injection sites or safe consumption spaces. Safe consumption spaces, of which there are 100 worldwide, are clean spaces where people can legally use pre-obtained drugs with supervision from healthcare professionals who aim to make injections as safe as possible while providing health care, counseling, and referral services to addicts. While safe injection sites have been successfully implemented in Canada, Australia, and Europe over the past 30 years, attempts to create such sites in San Francisco, Seattle, Boston, and more U.S. cities have not yet been successful. Beyond policy arguments as to whether these sites are effective, sites in the United States also face significant legal hurdles under federal law.

According to supporters of safe injection sites around the country and the world, the policy is an effective and relatively low-cost way to prevent overdose deaths and manage harm with no demonstrated consequences of increased drug use or increased crime. Opponents of safe injection sites, including Massachusetts Governor Charlie Baker, have pointed to increased opioid deaths in

The Massachusetts State House
Boston, 1787

recent years in Vancouver, which established its supervised consumption site Insite in 2003, to argue that safe injection sites are not actually effective in preventing overdose deaths. However, those arguments are misleading, as experts have stated that the increase in overdose deaths in Vancouver are due to the influx of fentanyl being added to drugs, and that Insite actually saw a 35% reduction in overdose deaths around the facility in the two years after it opened. While there are also studies questioning the efficacy of safe consumption sites—calling into question whether they have a significant impact on reducing deaths and reaching a significant amount of drug users—even the negative studies generally criticize safe consumption sites as being relatively ineffective as opposed to actively harmful. There are dozens of peer-reviewed scientific studies that have found that safe injection sites actually do significantly benefit those who are addicted to opioids and prevent opioid deaths. Notably, no death has ever been reported in an injection site, and a review of studies concluded that injection sites were associated with less outdoor drug use and did not appear to have any negative impacts on crime or drug use.

Despite the strong evidence backing the societal benefits of implementing and supporting safe injection sites, the policy faces significant legal and political obstacles in the United States. Perhaps the biggest hurdle that advocates of safe injection sites face is the potential legal liability of such sites under federal law and opposition from the Justice Department. The Controlled Substances Act makes it illegal to “knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance,” as well as to knowingly manage such a place. The plain language of that law may render implementation of safe injection sites impossible without some change or exception carved out in federal law.

However, advocates of safe injection sites do have a glimmer of hope that, once the first U.S. site is created, it will pass judicial muster through a creative legal argument proposed by law professor and drug policy expert Alex Kreit. In his paper, Kriet argues that a provision in the Controlled Substances Act providing immunity to state and local officials who commit drug crimes while enforcing local laws could protect safe injection sites from a crackdown by the federal government. Kreit has stated that the infrequently cited rule has previously been used in situations where authorities have seized marijuana and then returned it in states where marijuana has been legalized. Under this theory, those involved in safe injection sites would be protected so long as they were acting in accordance with a city ordinance or state law supporting safe injection sites. Other experts have expressed skepticism that such an argument would pass muster, however, with some stating that Kreit’s argument is a “stretch,” and that any path toward legality for safe injection sites lies in convincing the federal government not to target safe injection sites on public health grounds.

If cities and states cannot find a legal workaround protecting those involved with the safe injection sites, advocates likely face an uphill battle in convincing their communities and the Justice Department to accept injection sites. Attempts at establishing sites have not been politically palatable, as demonstrated by efforts in San Francisco and Boston. California Governor Jerry Brown vetoed a bill that would have allowed supervised drug consumption sites in the state and went so far as to describe it as “enabling illegal drug use.” In Massachusetts, in addition to Governor Baker’s opposition to the idea of safe injection sites, the Senate ultimately stripped a provision authorizing safe injection sites from its comprehensive opioid bill this past legislative session, instead replacing the pilot program with a commission to study the feasibility of establishing such sites. In addition to opposition from state Governors and a lack of strong state government support, it seems highly unlikely that the current federal administration would turn a blind eye to safe injection sites on public health grounds. In addition to a statement from the Vermont U.S. Attorney’s Office criticizing the policy and affirming that the United States Attorney would impose ramifications under federal law, there have been multiple other instances indicating the administration’s hostility towards safe injection sites and similar policies. In August, Deputy Attorney General Rod Rosenstein wrote an op-ed in the New York Times opposing safe injection sites and emphasizing the fact that they violate federal law. The Justice Department also “promise[d] [a] crackdown” on supervised injection facilities on an NPR radio show.

While there is scientific and global community support for safe injection sites, their future in the United States is still unclear, especially under the current federal administration. Until there are more assurances that sites could operate without intervention from federal law enforcement, it seems that most cities and states that have been at the forefront of the push for safe injection sites do not have the political will or capital to open the country’s first site and become the guinea pig of the movement. Philadelphia, however, may be the one city willing to go first. In August, Philadelphia Health Commissioner Dr. Thomas Farley said that Rosenstein’s opposition and warnings from the Justice Department would not prevent Philadelphia officials from further exploring the idea. Currently, Philadelphia seems to be going forward with its plan to allow, but not publicly fund, a non-profit site called Safehouse, which could serve as a jumping off point for litigation determining the legality of the sites and potentially creating more certainty for other interested cities and states. As for Massachusetts, it seems unlikely that the Commonwealth will be establishing any safe injection sites in the near future, though the members of the commission created in last session’s opioid bill will no doubt keep a close eye on Philadelphia as its safe injection site plan comes to fruition.

Chloe Aubuchon graduated from the University of Michigan with a B.A. in International Studies and Spanish in 2017 and anticipates graduating from Boston University School of Law in May 2020

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Massachusetts Regulates Short-Term Rentals

April 17th, 2019 in Analysis, Local Legislation, News, State Legislation

Massachusetts’s Governor Baker signed An Act Regulating and Insuring Short-Term Rentals on December 28, 2018. The act regulates short-term rentals provided through services like Airbnb. The governor rejected an earlier version of the bill, and returned amendments primarily allowing for an exemption for owners who rent out their property for two weeks or less per year, and reducing the amount of information provided publicly about rentals owners.  The bill was motivated by concerns that the rise in short-term rentals drives up housing costs and pushing out long-term residents. The statewide bill comes after both Boston and Cambridge individually passed laws essentially having the same effects. However, the Boston law was challenged by Airbnb, who filed suit in federal court claiming that the regulations are “Orwellian” and violate several laws, including laws that protect online companies from being held liable for the actions of their users. The city of Boston is currently holding off on some of the regulations passed pending the resolution of the court case. Airbnb had not yet said if it will challenge the new Massachusetts law.

The statewide law has two main components: first, that all short-term rentals are taxed by the Commonwealth, and can be additionally taxed by local governments, and second, that all owners of short-term rental properties must register with the state and hold insurance. The registration requirement was a cause of debate. Lawmakers, including Governor Baker, were concerned about violating the privacy of owners by publishing their names and addresses publically. In the amendments to the July bill that Governor Baker rejected, the registration requirement was changed so that only the owner’s neighborhood and street name would be published, not their exact address. The law also dictates eligibility in order to register. To be eligible to be a short-term housing unit, the space must be compliant with housing code, be owner-occupied and be classified for residential use, among other requirements. Another cause of debate was an exemption for occasional renters. Governor Baker originally wanted owners who rent their properties for 150 days or less to be exempt from the regulations. However, in the final version of the bill, the exemption was decreased to 14 days.

Not surprisingly, the hotel industry supports the bill. Paul Sacco, the President and CEO of Massachusetts Lodging Association, said:

“This is a tremendous victory for municipal leaders and the people of Massachusetts who have been waiting for years while Airbnb rentals have exploded, resulting in skyrocketing housing costs and disruptions in local neighborhoods. By adopting a more level playing field between short-term rentals and traditional lodgers, lawmakers made great strides toward a more fair and sensible system.”

Airbnb had a far less enthusiastic response however. In citing concerns about the property owners who use Airbnb to earn extra income, Airbnb said that they would “continue the fight to protect our community and the economic engine of short-term rentals for hosts, guests, and local small businesses”

While Massachusetts is the first state to pass a law, many other cities have passed similar laws in the recent years. In Nashville, the city passed a law in January which focused on taxing short-term rentals that are not owner-occupied in order to fund affordable housing development in the city. The “linkage fee” tax is controversial, with lawmakers questioning if the fees generated are enough to actually impact the lack of low-income housing within the city. Seattle passed a similar tax law in November 2017. The legislation aims to encourage owners who rent out a spare bedroom and discourage investors who buy entire buildings for use as short-term rentals. Finally, New York City passed regulations in July 2018 which requires Airbnb, and other similar companies, to provide information about the properties listed for rental within the city. However, Airbnb sued in federal court claiming that the requirement to provide information to the city violated the company’s fourth amendment right against search and seizure. The law was set to take effect in February 2019, however the Judge granted a preliminary injunction in favor of Airbnb saying, “The city has not cited any decision suggesting that the government appropriation of private business records on such a scale, unsupported by individualized suspicion or any tailored justification, qualifies as a reasonable search and seizure.”

Jessica A. Hartman is a member of the Boston University School of Law Class of 2020.

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Raising the Blinds – Gaining Meaningful Insight into Pharmaceutical Pricing through Legislation

February 7th, 2019 in Analysis, Federal Legislation, Legislation in Court, Lobbying

Rising healthcare costs are a growing concern across the United States; in 2016 U.S. health care spending was $10,348 per person – or 17.9 % of the nation’s Gross Domestic Product (GDP). To counter this alarming rise in healthcare costs, states are addressing one of the largest factors in rising healthcare costs – high drug prices. 

Many factors contribute to the high price of healthcare in our country, some of which are natural to an aging populace due to the baby boom of the 1950’s as the proportion of the population that is 65 and over is projected to experience a large increase in the coming years. An increase in costs is natural with a larger number of consumers – addressing this change is an important, but avoidable, challenge to overcome.

One avoidable factor of increasing healthcare costs is rapidly increasing pharmaceutical prices. Variance in drug prices may be geographic; based on where the drug is sold , or whom the drug is being sold to (pharmacy v. government). Many factors contribute to price differences, but an important factor are Pharmacy Benefit Managers (PBMs) as an intermediate in the market. States have been working to roll back the PBM layer of the market for  the pharmaceutical industry.

Pharmaceutical pricing has long been the target of legislators, but with a lot of talk and a surprising lack of action. Drug pricing is  discussed in both major party’s campaign platforms of the major parties and has been featured prominently in speeches by President Trump, and has featured in initiatives by previous administrations. There has been an uptick of legislation passed in the past decade, at all levels of government, with state action against pharmacy benefit managers and President Trump’s signing the Know the Lowest Price Act and the Patient Right to Know Drug Prices Act.  A common thread in the legislation is increased transparency because a big factor in the high drug prices — and medical care generally—is the lack of information for consumers and purchasers. Since 2015, California, Oregon, Louisiana, Nevada, Vermont, Connecticut, and Maryland imposed reporting requirements on pharmaceutical manufacturers who increase prices over an established threshold in a set time period. For example, California requires reporting when a drug that costs more than $40 and its wholesale acquisition cost (WAC) increases by more than 16% over two calendar years.  The WAC is similar to a “list” price for pharmaceuticals to wholesalers and direct purchasers. The WAC, however, does not include discounts or rebates offered by pharmacy benefit managers.

The new transparency offers insight to price increases; if there are no legitimate reason for the increase other than higher profits due to market control, state officials, drug customers and the public can take action.

The states with transparency statutes have imposed different methodologies with manufacturers reporting to different government officials such as the Department of Health and Human Services, creation of new departments, or to the state’s Attorney General.

Oregon currently requires the most detailed reporting; manufacturers must report to the Department of Consumer and Business Services the following:

  1. Name, price of drug and net increase in price (in %) over previous calendar year
  2. Length of time on market
  3. Factors contributing to price increase
  4. Name(s) of any generic version(s) of the drug
  5. Research & Develop Costs from Public Funds
  6. Direct costs to Manufacturer
  7. Total sales revenue for drug over prev. calendar year
  8. Profit from drug over previous calendar year
  9. Drug's price at release and yearly increases over the past 5 years
  10. 10 highest prices paid for the drug during past year outside of the US
  11. Any other info relevant to price increase
  12. Supporting documentation

In contrast, California’s requirements provide for advance notice of price increases and unearthing the reasoning for the increase. The California law requires manufacturers to report (A) Date of increase, current WAC, and future increase in WAC (in dollar amounts); and (B) The change or improvement, if any, that necessitates the price increase. Purchasers then have notice of any forthcoming price changes and if the increase is warranted.  California also requires a report for new drugs if its price exceed $670—the 2017 Medicare Part D threshold.  California’s reporting scheme has been a model for other states.

Maryland’s approach was more severe, with a provision banning “price gouging” of generic drugs. An “unconscionable price increase” of any “essential off-patent or generic drug” is illegal and  Maryland can levy a fine and take action to reverse the price change. The state did not include any limitation of the law to drugs that have come into or passed through Maryland.

The generic drug lobby, the Association for Accessible Medicines, challenged the law and the Fourth Circuit Court of Appeals struck down the law as an unconstitutional regulation of interstate commerce. Maryland has petitioned the Supreme Court to revisit the case.

The Pharmaceutical Research and Manufacturers (PhRMA), one of the largest pharmaceutical lobbying groups, has sued California alleging the law, like Maryland’s, is unconstitutional. Because California’s law is informational—and does not allow forced price changes—it is likely constitutional. In fact, PhRMA’s initial complaint was dismissed, and subsequently filed an amended complaint on Sept. 18, 2018.

It will be imperative for states seeking to regulate pharmaceutical manufacturers to observe where courts determine the extent of reporting they may require when they go after a manufacturer for increasing the price of their drug. For the time being, it appears that information-gathering may be the easiest available avenue for states seeking to curtail increases in drug prices. Seeking justifications and reasoning for large increases in drug prices may create a barrier for pharmacuetical companies seeking to impose unsubstantiated increases in drugs. Going further towards affirmative control of pricing appears to be off limits to states going as far as Maryland, but more careful structuring of the controls to the specific state may be permissible.

 

Drew Kohlmeier is a student in the Boston University School of Law Class of 2020 and is a native of Manhattan, KS, graduating with a degree in Biology from Kansas State University in 2016. Drew decided on Boston for law school due to his interest in health care and life sciences, and will be practicing in the emerging companies space focused on the life sciences industry following his graduation from BU.

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Automatic Vote Registration is a Necessary Step in the Right Direction to Increase Voter Turnout

February 7th, 2019 in Analysis, State Legislation

In 2016, Donald Trump won the electoral vote, and therefore the presidency, because of fewer than 80,000 people spread over 3 states; about the same population as Scranton, Pennsylvania. While there are many ways to analyze this narrow margin, the most important may be that elections can be decided by a small number of votes. This fact makes it increasingly important that governments ensure every eligible citizen has the ability to conveniently vote. When 80,000 people can decide a national election, any obstacle that inhibits citizens from voting can drastically change who our representatives are. One recent effort in several states is automatic voter registration.  While not the solution to all voting problems, it is a worthwhile first step towards greater voter turnout.

In 2015, Oregon became the first state to adopt automatic voter registration.Since then, 12 more states and the District of Columbia have enacted similar legislation. Most recently, in August of 2018, Massachusetts Governor Charlie Baker signed an automatic registration bill into law. Automatic voter registration laws change the traditional opt-in registration methods into opt-out plans. The Massachusetts law, for instance, requires automatic registration for anyone who completes a transaction with the Department of Motor Vehicles (DMV) or signs up for state healthcare (MassHealth), unless they opt-out of registration . The law will take full effect in January 2020,  in time for the next presidential election.

Because automatic voter registration is a relatively new design model, the research into whether or not it actually increases voter turnout is limited. However, the initial research from the Center for American Politics (CAP) seems positive. According to early numbers, of the 272,000 people in Oregon who were registered through the automatic system, more than 1/3 of them (approximately 98,000 people)voted in the 2016 election . This same data also suggests that Oregon's automatic registration law has created a potential pool of voters who are more representative of the age, income, and ethnicity of the state’s residents. At the very least, there is clear and conclusive evidence to confirm that automatic voter registration will definitely increase the number of people who have the option of voting in the next election. Since 2016, Oregon’s registration rates have quadrupled at state DMV offices. There have been similar results in Vermont where, after only six months of its new system, registration rates rose 62% from the previous year . While the effect remains to be seen in Massachusetts, officials estimate that approximately 680,000 new voters will be registered because of the bill.

Despite these promising results, automatic voter registration has not been without its critics. Opponents are concerned about various issues such as fraud, duplicate registrations, and accidental enfranchisement for undocumented immigrants. Proponents believe that these concerns, however, are largely unfounded. To combat the risk of fraud and duplicate registrations, many states conduct their automatic registration through multiple governmental agencies that can all supply and confirm correct identifying information (such as changed addresses or last names). The Massachusetts law allows registration through two different agencies and also requires the state to link with the Electronic Registration Information Center (ERIC); a third-party nonprofit that will update and report changed voter information to the state. Concerns of accidental registration of undocumented immigrants are most heightened in places such as California, which allows undocumented residents to obtain drivers licenses while also providing automatic registration through the DMV. Election officials in California, however, state that all automatic registrations in California are cross referenced with voter eligibility databases the ensure that this fear cannot come to fruition.

Proponents of automatic voter registration argue that while the potential negative side effects of these laws are negligible, the benefits are huge. Automatic registration is a small, but highly effective, tool to help protect the most vulnerable from having their voting rights infringed upon. One important example of this can be found in the state of Georgia. Georgia has had automatic voter registration through the Department of Driver Services (DDS) since September of 2016. Prior to adopting automatic registration, the state required voter applications to meet extremely strict  “precise match” requirements.  Under these precise match requirements, applications ccould be held or rejected if they did not precisely match the information the state already had on file for that person. Applications were held up for trivial issues such as missing hyphens or a signature that looked slightly different. In 2016, The Secretary of state ended these precise match requirements just as the state began implementing automatic voter registration.

Georgia Capitol
Atlanta, 1889

During the 2018 midterm election Secretary of State Brian Kemp reinstated the practice of requiring precise match’s for voter registration and absentee ballots. This requirement caused widespread rejection of absentee ballots and mailed in voter registration applications-- more than 53,000 ballots and applications because of precise match reasons. While 32% of residents in Georgia are black, approximately 70% of the rejected applications were from black residents. This seemingly suggests that one of the greatest issues with automatic voter registration is simply that it doesn’t do enough on its own to prevent voter suppression.

While automatic registration can effect great change in terms of the number of people who are registered to vote, it is only a beginning, and not an end, to improve the problem of voter suppression and voter turnout. The decision whether or not to vote is almost as personal as the decision of who to vote for. All citizens should have the right to choose whether they want to vote in any particular election. When state laws and policies make it difficult for people to register, the government ends up taking the decision out of the hands of too many Americans. The move towards easier registration is an important one. For a country whose elections are decided by so few votes, it’s imperative that anyone who wants to vote, gets to.

Ashley Zink anticipates graduating from Boston University School of Law with a Juris Doctor in May 2020.

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Of Migration and Refugees: The Failure of Republican Deterrence Policy

February 7th, 2019 in Federal Legislation, Legislative Oversight

Despite two years of the Trump administration’s get-tough-on-refugees policy, the latest statistics continue to show record numbers of migrants crossing the U.S. border, with 16,658 family members in September, the highest one-month total on record and an 80 percent increase from July.This is just the latest in the periodic reports showing that Trumps immigration policy has failed, which should prompt questions both about why it has failed, as well as why Trump continues to insist on such a patently immoral approach to policy. Since at least 2014, Republicans have pushed for draconian treatment of border-crossers on the theory that such treatment will deter people from entering the United States. However, deterennce ignores the reasons why people are fleeing their home countries, and thus predictably fails, suggesting that the G.O.P. has adopted the policy in order to appeal to a segment of the voting public whose fear and hate have been amplified by right-wing propaganda.

Shortly after taking office, Trump quickly began to make good on his campaign promises to get tough on immigration, reversing what he termed Democrats’ soft approach. These policies included the end of Obama’s Deferred Action for Childhood Arrivals program, the end of Temporary Protected Status for hundreds of thousands of people, and the implementation of harsh treatment of immigration detainees at the border, including family separation, prolonged detention of asylum-seekers, the use of prisons as “detention” facilities, and a concentration of resources to increase prosecute border-crossers (and significant evidence of over-enforcement). The goal of such policies is apparently rooted in a belief that such policies will deter migrants from attempting to enter the United States, notwithstanding the lack of evidence that such deterrence is effective.

BBC.Com

These policies should be seen as derivative of the rhetoric of Republican critics of President Obama’s initial response to the so-called “surge” of children crossing the border in 2014. In early June, Obama originally declared the situation a humanitarian crisisand directed officials to apprehend and provide care, including housing and medical treatment, and legal aid. However, with right-wing propaganda outlets such as The Daily Caller whipping up fear of the children at the border, Republican politicians seized on the opportunity to make the humanitarian crisis into a political one. Claiming the crisis was due a failure of the Obama administration, politicians such as House Judiciary Chair Robert Goodlatte suggested that the solution was simply an end to “Obama’s lax immigration enforcement policies” and rigorous enforcement of the immigration laws. And, by the end of June, the Obama administration, feeling the pressure from the right, shifted gears and adopted a policy of deterrence. This crackdown included increased enforcement and wide-spread use of detention centers, as well as an information campaignto send a clear message to potential migrants so that they understand the significant dangers of this journey and what they will experience in the United States. This created little political traction for Democrats, as Republicans insisted that it was too little, too late, and that draconian deterrence measures were necessary.

The reality is that migration to the United States from Central America is largely driven by push factors forcing people out of their home countries, not pull factors luring them to the United States, which explains the lack of evidence for the efficacy of deterrence. As a worker at a migrant shelter in Tucson, Arizona is reported as explaining, Why would you undertake such a dangerous journey? When youve got a gun to your head, people threatening to rape your daughter, extort your business, force your son to work for the cartels. What would you do?While Trump insists on depicting migrants from Central America as gang-members, or even soldiers “sent” by their home countries in a mythical war on American interests, it is probably best to think of human beings fleeing their nations because of violence as asylum-seekers.

The Refugee Act of 1980 defines refugees and asylum-seekers to be those who are persecuted, or have a well-founded fear of persecution[,] on account of race, religion, nationality, membership in a particular social group, or political opinion.The law also provides a right to any alien within the United States to seek asylum, requiring those seeking such status to cross the border. Trump appears to see asylum, one of the basic pillars of human rights law, as a loophole to be exploited by evildoers, and is seeking to close that loophole,if not through legislation, then through deterring those seeking safe-harbor. Trump’s Justice Department, has moved to exclude domestic violence and gang targeting as bases for establishing persecution based on membership in a particular social group, overturning Board of Immigration Appeals precedent. On a moral level, there seems little reason to distinguish between the persecution faced by political dissidents in totalitarian regimes, and that faced by victims of the reign of terror perpetrated by gangs in Central America. Certainly, the pervasive fear of violence under both regimes is what drives people to seek safety in other countries. It is this push-factor, the pervasive violence faced by many Central Americans in their home nations, that is driving migration to the United States, and no amount of deterrence, short of recreating the violence of their home nations at the American border, will change the minds of those who feel forced to flee for their lives.

NBC News

That said, as Trump is able to feed on fear and hate in order to build political power with his Republican base, it is unlikely that evidence-based policy arguments about the efficacy of deterrence policy will make much headway towards a reconsideration of said policy. Perhaps a congressional re-imagination made possible by the new Democratic House majority will lead to legislative changes prompting a humane response to what is at base a humanitarian crisis. The House leadership’s recent refusal to appropriate money for what many consider a boondoggle border wall suggests that Democrats are eager to pass sensible border policy rather than acquiesce to Trump’s grandstanding. Congressional mandates that the executive branch again consider domestic violence and gang intimidation as possible bases in the determination of asylum would be a start. Shifting resources from detention centers to asylum officers and immigration judges, thereby treating asylum-seekers as asylees and not felons would help as well. And, in the long-run, Congress should consider how best to address the push factors causing people to flee for their lives in the first place.

 

Dan Ordorica anticipates earning his Juris Doctor from Boston University School of Law in May 2019.

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Can Single-Payer Really Happen?

February 7th, 2019 in Analysis, State Legislation

Healthcare is on the frontlines of legislative debates— the U.S. has the most expensive care and reports the poorest outcomes of all rich democracies (RDs). Several states have proposed legislation to innovate healthcare access and to safeguard against the destruction of the ACA. One “old idea” that recently  gained momentum is single-payer, and for New York (NY), it may become a reality, with its fate resting with the new legislature. To date, only one state has briefly “experimented” with single-payer – Vermont, and it failed due to gross underestimation of its costs. In NY, a landmark study that evaluates the viability of NY’s single-payer bill, known as the New York Health Act (NYHA), conducted by RAND, detailed benefits and setbacks of the proposed legislation, and public reaction was mixed. Despite the not so encouraging findings, lessons can still be learned from this report.

Single-payer, coined as “Medicare for all”, is a health insurance system in which a single public agency organizes healthcare financing, ideally covering all types of essential healthcare services. Delivery of care itself, however, would remain largely private in a single-payer system.

Proposals for single-payer in the U.S. are not new. The earliest version came in 1943 by Senators Robert Wagner (D-New York), James Murray (D-Montana), and Representative John Dingell, Sr. (D-Michigan), known as the Wagner-Murray-Dingell Bill (and subsequently endorsed by President Truman in 1945). The post-World War II bill proposed funding health care through payroll and income taxes. The bill became entangled with the Cold War , was vilified as socialized medicine by its opponents, and was discarded. The idea was revived in the 1950s, when it was nearly impossible for an aging population to get private health insurance. The elderly advocated for subsidized coverage since they are no longer able to afford their care, and hospitals advocated for it to ensure that the healthcare services they provide were paid for. The result: Medicare was enacted in 1965— the first form of single-payer insurance in the U.S.

Single-payer is gaining popularity once again. According to a Reuters poll, 70% of Americans support some form of single-payer coverage. Why? First, with the implementation of the ACA, there was a national momentum for states to expand their healthcare coverage. The health exchange created by the ACA made coverage accessible for many middle-income families and individuals. On the Medicaid side, progressive states elected to expand their eligibility coverage for individuals earning up to 138% of the federal poverty level in exchange for a 50% match in federal subsidies, a benefit many states enjoy. The most appealing provision of all is the mandated coverage of pre-existing conditions. With the all Republican take-over of the federal government in 2016, many Americans worried about what would happen to their coverage. Over the next two years, the ACA underwent congressional budget cuts, but despite efforts by Congress and President Trump,  the ACA has grown in popularity with the general public.

In NY, the concept of single-payer was first introduced in 1992 by Assembly member Richard Gottfried (NY-D). The goal of NYHA is to provide universal insurance coverage with no cost-sharing for New Yorkers, regardless of legal status, and would cover almost all comprehensive services. Bill proponents expect increased access to care and reduced costs by removing high administrative overhead costs and reducing unjustifiably high prescription drug costs. Much like the Wagner-Murray-Dingell Bill, NYHA would be funded through payroll and income taxes. Since 2015, the NYHA has passed the Assembly floor four times. Although 31 state senators co-signed the bill, it has been stopped in the Senate by just one vote. This may now change with the Democrats taking back the Senate majority, although the cost may be a deterrent.

Despite the national and legislative enthusiasm, New Yorkers have been skeptical of single-payer reform. According to a 2018 Mercury Public Affairs poll, only 33% support the bill. Over 60%, however, said they would support increased subsidies to assist low and middle-income families. Why the opposition? The number one reason of 66% polled: taxes would pose a high burden.

The RAND study assessed “near-term” and “long-term” impacts of the bill. Overall, it found that single-payer would be viable, but with big caveats. The system would expand health care access, all while generating an estimated $15 billion in net savings (3.1%) on healthcare costs by 2031. Still, near-term are where the problems lie. From the political side, this would require the federal government to issue a waiver to redirect all federal and state funds to NYHA. Just weeks prior to this report, the Centers for Medicare & Medicaid Services called California’s similar proposal “unworkableand indicated similar waivers would not be approved. On the fiscal side, health care reform comes with a steep price: $139 billion in additional state tax revenue would be needed by 2022, that is 156% more than what is currently being collected. This amount would be amassed through payroll and income tax that would supplant the employer contribution and premiums and out-of-pocket costs. RAND applied a generic tax schedule based on three income brackets. For low-income families, they would be taxed 6.1% of their payroll income and 6.2% for non-payroll income by 2022. For middle-income families, the rates would range from 12.2% to 12.4%, and for high-income, their tax rate would increase up to 18.3% - nearly three times of what they are paying now. Moreover, Medicaid and Essential Plan (i.e. the NY Health Exchange) enrollees would pay more to get healthcare coverage. Assembly member Gottfried praised the study and suggested that they can adjust taxes accordingly so that high income families would pay more in taxes in order to help low and middle-income families afford their care. These tax hikes would exceed the combined costs of what New Yorkers are currently paying in taxes and healthcare benefits—explaining the bill’s unpopularity. Using the RAND report as a guide, it is likely that the state legislature will explore mechanisms to help finance their proposal in the upcoming session.

New York State Capitol
Albany 1899

While single-payer hasn’t had much luck in the U.S., universal care payment methods, including single-payer, have been successful in other RDs. Regardless of each RD’s financing method, there is one consistent feature of success: national political will to implement it. Imagine if the politics of the cold war did not interfere with establishing a national health insurance plan? Would it have been possible to implement a streamlined and efficient plan? If our culture would have capitalized on the Medicare momentum, would we accept a collective sense of community regarding our healthcare? Vermont tried to implement single-payer with little success due to gross budget underestimations and faint national support. The RAND report sheds light on the cost of single-payer and suggests that there needs to be federal political will to support it. Let these findings and other evidence guide lawmakers as the search for a modest solution continues. Perhaps Wagner’s vision may still be a solution.

Sarah Zahakos is working toward a PhD in Health Law, Policy & Management at the Boston University School of Public Health.

AHRQ T32 Research Fellow
Training in Health Services Research for Vulnerable Populations
Grant # 2T32HS022242

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