Using 1115 Waivers to Fulfill the Affordable Care Act’s Promise

July 30th, 2015 in Analysis, Federal Legislation

In the last few months Montana has taken substantial steps toward joining Iowa, Arkansas, Michigan, and Indiana as states that are to fulfilling the promise of Affordable Care Act by expanding their Medicaid programs through special waivers. The Affordable Care Act (ACA) was designed to drastically reduce the number of uninsured people in the United States by providing access to affordable health insurance to all Americans. Despite struggles with implantation, and continuing legal threats, the ACA has been largely successful at expanding access to health insurance to middle class Americans. However, it has fallen woefully short of providing the same access to low-income Americans.

The ACA was designed to have Medicaid provide insurance for low income Americans. Medicaid is a public

The Ether Dome Massachusetts General Hospital, 1846

The Ether Dome
Massachusetts General Hospital, 1846

insurance program that is partnership between the states and the federal government.  Each state runs a unique Medicaid program within the parameters set by the federal government and with substantial financial support from the federal government. The ACA required states to expand Medicaid to all Americans whose family incomes fell below 133% of the poverty level. The federal government would pay for the first three years of the expansion and then 90% of the costs for all of the following years. States that refused to expand would have faced potentially serious financial repercussions for their current Medicaid programs. In 2012, Supreme Court ruled that the possible repercussions for states choosing not to expand Medicaid were too sever and therefore “coercive” and ruled unconstitutional.

The Court’s decision made the Medicaid expansion optional for states. Political opposition to the ACA, and President Obama, in both state legislatures and in governors’ offices has caused over a dozen states to choose not to expand Medicaid. Based on a belief that states would expand Medicaid programs the ACA only provides subsidies for purchasing health insurance to individuals above the poverty level. Now there are an estimated 4 million people living below the poverty line without access to Medicaid or health insurance subsidies. Meanwhile people with higher incomes are given government assistance in the form of insurance subsidies.

In response to this coverage gap, or to try to take advantage of the overwhelmingly good deal the Medicaid expansion represents for states, many states whose leaders were/are politically hostile to “Obamacare” have found an alternative method to expanding Medicaid. Working with the Centers for Medicaid and Medicare Services (CMS). Indiana, Arkansas, Iowa, and Michigan states have utilized an §1115 waiver to negotiate expansions that a structurally different than those envisioned by the ACA. Montana is the latest state to try to join them.

Named after Section 1115 of the Social Security Act §1115 waivers have been part of the Medicaid program for decades. They serve as a means for states to experiment with new demonstration projects, which are supposed to be evaluated to determine their effectiveness. Waivers allow states to negotiate with CMS to design a feature of their Medicaid program that does not have to conform to all of the rules established by the federal government. Prior to the ACA states had used §1115 waivers to change benefits packages, utilize non-emergency cost sharing, and expand managed care in Medicaid. The §1115 waivers are not a carte blanch to ignore all of the rules that govern Medicaid programs. CMS has set out formal rules governing the waiver process and cannot waive core requirements of the program and they are required to be budget neutral.

Each of the states that have expanded their Medicaid programs through and §1115 waiver have negotiated a slightly different arrangement with CMS. Arkansas is enrolling Medicaid expansion enrollees in qualified health plans on its state health insurance marketplace and utilizing the federal Medicaid funding to pay for those enrollees insurance premiums. Iowa used two §1115 waivers to set up a similar premium support model for beneficiaries over 100% of the poverty level and enroll those under 100% of the poverty level in Medicaid managed care.  The plan covers 190,000 previously uninsured Iowans.

States seeking to expand through a § 1115 face more obstacles than just negotiating with CMS.  Like a traditional Medicaid expansion and §1115 waive still requires legislative approval, and the legislative process is fraught with political pitfalls.  Just ask the Governors of Utah and Tennessee. The Utah House of Representative and Utah Senate failed to reach a deal this session after they rejected the Governor’s original proposal.  A special Tennessee Senate panel rejected  a proposal the Governor had spent months negotiating with CMS.  Fortunately, for low-income citizens of Montana their plan already has preliminary legislative approval.

While the jury remains out on the effectiveness of the §1115 waiver expansions compared to the traditional Medicaid expansion one thing is certain low-income people have better access to health insurance in states that have implemented §1115 expansions than those in states that have no expansion. Hopefully, Montana can avoid the conflicts that have stalled Utah and Tennessee’s’ proposals, and hopefully both of those states keep trying to find comprises that results in expansions. The ACA unintentionally created a coverage gap that affects the most vulnerable citizens. But states have the tools to close the gap. All states should pursue a Medicaid expansion of some sort because beyond being sound policy, Americans should not have their insurance status determined by their zip code.


1436458956Timothy Murphy anticipates graduating from Boston University School of Law with a Health Law concentration in May 2016.

But Do They Have Standing? The House and the ACA

July 30th, 2015 in Analysis, Federal Legislation, Legislation in Court

Over the last year a considerable amount of ink and column inches have been spent on the House of Representatives of the United States’ (the House) lawsuit over President Obama’s decision do delay enforcing portions of the Affordable Care Act (ACA). At least a portion of that ink was spent on the absurdity of a lawsuit to enforce a provision of a law that the Speaker reportedly hates that the House has voted to repeal multiple times. But additional tweets, posts, and columns were dedicated to the more concrete legal question in the suit: Does the House of Representatives have standing to sue the President for failure to enforce the law? Or, is the Speaker wasting valuable taxpayers money as well as judicial and administrative resources on a political stunt.

After it appeared the suit might go away because the plaintiff lacked council, it appears that an initial

Johns Hopkins Hospital Dome Baltimore, 1889

Johns Hopkins Hospital Dome
Baltimore, 1889

resolution to the question of the House’s standing may be in the works. The Administration has filed a motion to dismiss the suit based on the plaintiffs’ lack of standing.  Both sides have summited briefs in support of their position and District Court Judge Rosemary M. Collyer held a motion hearing for May 28, 2015.  Soon we will find out at least initially if the House has standing to sue the Administration.

If you are not a law student, lawyer, or a political junkie you probably have two questions. One, what is the House suing the Administration for and two what is standing? The two questions are actually significantly intertwined. First standing is the term that federal courts used to describe who is able to bring a suit before them by determining what constitutes a case or a controversy. The constitution only permits federal courts to hear “cases and controversies.” Absent a case or controversy federal courts lack the power to decide the issues of a case.

Typically standing requires first that the plaintiff suffers a particularized injury-in-fact, not a generalized grievance suffered by everyone. Second, that the injury must be “fairly traceable to the defendant’s allegedly unlawful conduct.” Finally, the injury must be redressable by the relief requested by the plaintiff.  However, the Supreme Court has allowed members of legislatures to also assert special institutional injuries, if the challenged action amounts to the nullification of a their vote. The Court articulated the standard in Raines v. Byrd. In Raines Members of Congress filed a suit challenging the constitutionality of the recently enacted line item veto. The Court found that the injury did not amount to vote nullification, but in doing so described what would count as such nullify a law or appropriation that has been properly enacted or the enforcement of a law that has been improperly enacted. The Court also gave significant weight Members in Raines retained their legislative power and could repeal the act in question if they had the political support.

In the suit pending before the Judge Collyer the House asserts that the Administration’s decision to delay enforcing the employer mandate portion of the ACA, and the manner in which the Administration provided for cost sharing reductions under the ACA has injured the House itself. The House’s complaint alleges  “[t]he actions of the defendants… injure the House by, among other things, usurping its Article I legislative authority.” This very deftly is an attempt to avoid normal standing requirement by asserting the special type of institutional injury the Court recognized in Raines. However, like the plaintiffs in Raines the House’s alleged injury falls short of the threshold of vote nullification.

Administration has done nothing to nullify a congressional vote under the standard articulated in Raines.  As the Court described in vote nullification is a very specific institutional injury. The House seeks to extend this narrow injury to any administration of the law with which it disagrees. This would not only be a massive expansion of what constitutes and injury for standing, but would ultimately endanger the Presidents authority to administer the law under the Article II take care clause.

The House also maintains the same type of legislative remedies that the plaintiffs in Raines had at their disposal. In fact, because in this action the House itself is the plaintiff rather than a small collection of members in Raines it maintains functionally more substantial legislative remedies. Article I provides Congress with the ability to enact legislation, the power to control appropriations, and in the most extreme cases to bring official charges of impeachment. Any and all of these powers provide an avenue for redress that is more appropriate than involving the court system. In fact the House has utilized its legislative power to try to repeal the ACA and restrict funding for the administration of the law. The only legislative power the Speaker Boherner is unwilling to pursue is impeachment, not because the House has cannot do so, but because of the political consequences.

The Houses argument for standing also seems to rely on an assumption that if it is not granted standing then the constitutional dispute “must be resolved by the fortunes of politics.”  The relative merits of political or judicial resolution of constitutional issues notwithstanding (that would take another blog post to tackle… or an entire book), this argument relies on two incorrect assumptions; that private parties lack standing to challenge the action and that the requirements of standing can be waived by courts in the interest of public policy. Neither of these assumptions is true.

It is easy to imagine how another party having standing to challenge the Administrations actions. Any person whose employer has chosen not to provide health insurance to her would have standing.  This uninsured individual would have to show that their employer’s decision not to offer health insurance was caused by the Administration’s failure to enforce the penalty. While this may be a difficult case to prove, it is completely conceptually possible and perhaps even likely to happen in the future.

The second assumption is that the standing requirement is a policy choice and not a constitutional constraint on federal courts ability to hear cases. While my personal beliefs are to the contrary, a strong argument could be made the allowing the House to have standing to bring actions such as this would be a beneficial public policy.  But the federal courts are not able to make that choice. The Supreme Court has repeatedly emphasized that the standing requirements are based on the constitution not public policy. Granting an exception in this case on a public policy rational would overturn a century of case law concerning the standing requirement.

It is extremely difficult for Congress to ever meet standing requirements, and the House has almost certainly not met them in this lawsuit.  The entire endeavor has been a phenomenal waste of taxpayer money, judicial resources, and all of the time and ink that we have spent covering it. But maybe that was the House’s intention all along; grabbing favorable newspaper headlines not judicial decisions.
1436458956 Timothy Murphy anticipates graduating from Boston University School of Law in May 2016 with a concentration in Health Law.

Sad Display On Senate Floor

July 27th, 2015 in Legislative Operations, Opinion

By:  Special Correspondent Webster

On July 24, 2015, Senator Ted Cruz (R-Texas) brought Congress to a new low accusing Senate Majority Leader Mitch McConnell (R-Kentucky) of lying during a floor speech.  Speaking about trade treaties and the reauthorization of the Export-Import Bank, a current Tea Party boogieman, Cruz publicly discussed several private conversations with the Majority Leader at a Republican Caucus and in McConnell’s Office.

It is widely believed that McConnell agreed to attach the Export-Import reauthorization to "must-pass" legislation in order to win support from Sen. Maria Cantwell (D-Wash.) for a trade package earlier this year.   Cruz voted for the trade package because he “believes in free trade,” but was aghast that a compromise had been reached somewhere along the line that would allow the Export-Import Bank be reauthorized.

First, Cruz detailed a discussion that took place in a Republican Caucus. When Cruz asked Sen. Ted Cruz (R-Texas)

McConnell whether there was a deal in place for the Bank, “The majority leader was visibly angry with me that I would ask him such a question,” Cruz said. "The majority leader looked at me and said, “There is no deal, there is no deal, there is no deal.” Cruz went so far as to compare this denial to that of Peter the night before Christ was crucified.

Cruz reports that after lunch his staff said that McConnell was lying, but that he believed McConnell, “What I told my staff that afternoon, I said, well I don't know if that's the case or not. But I don't see how when the majority leader looks me in the eyes and makes an explicit promise... I don't see how I cannot take him at his word.”

Later, Cruz detailed a private conversation with McConnell in his office where the Majority Leader allegedly denied there was a deal on the Bank to move the Trade Bill forward.

In the end, there was such a deal, which Cruz declared to be a “corrupt deal,” and explicitly accused the Senate Majority Leader of lying to him,  “Well, we now know that when the majority leader looks us in the eyes and makes an explicit commitment that he is willing to say things that he knows are false,” said Cruz.  "That has consequences for how this body operates,” he continued. "If you or I cannot trust what the majority leader tells us, that will have consequences on other legislation, as well as on how this institution operates."

“Today is a sad day for this institution,” said Cruz at the beginning of his speech.  So true—but not in the way Sen. Cruz intended.

First, give up the Jesus imagery—you are not the Son of Man.  McConnell’s “betrayal” of Cruz here rises to the level of Peter denying Jesus to the crowd on Holy Thursday?  Honestly?

Second, shame on Ted Cruz for what he did to his staff.  Although I have never met them, I am willing to bet they are young, smart, and ambitious professionals who hope to have a long career either in government or working to influence the government from the private sector.  Washington is, and always will be, a small town.  It was his staff who first said the Majority Leader, one of the most powerful Republicans in the country, was lying?  They persisted despite their Boss saying he believed Mitch McConnell?  Cruz strongly implied that McConnell was lying in his speech, but the only time the word was explicitly used, it came from his staff?  Ted Cruz is not long for Washington.  He is not going to be the next President and he clearly does not want to be part of the US Senate, given his bomb throwing as opposed to crafting legislation and working to oversee the government.  His staff, however, are just starting careers in Washington, and the Republican establishment is going to have long memories.  The member-staff relationship is a sacred one—sometimes stronger than the member’s marriage.  What is said in the office is sacrosanct.  A staffer who reveals what is said (without authorization) to an outsider can, and should, be fired. The member owes the same duty to his staff.

Third, Cruz decided to make public conversations he had in a caucus—which is assumed to be confidential; as well as a private meeting with McConnell, which I am sure all parties knew was private, or Mitch would not have closed the door to his office.  Airing dirty laundry on C-Span is petulant and coarse.

Fourth, Cruz is not the first, nor will he be the last, to use a Senate seat to run for the White House; still one does not have to denigrate the former to win the latter.   Frankly, I am not sure why so many senators even want to be President.  Those senators who have tried for the White House—but lost—have discovered that the Senate can be a true font of power  and a “bully pulpit” that, over time, far outstrips the influence of a President. Thurmond, Humphrey, Goldwater, Kennedy, Dole, Hatch, McCain—they were (and in the case of the last two, still are) giants.  Each of these men was probably a far better senator after their presidential ambitions were set aside.  Incendiary comments like these demonstrate that Cruz has no interest in making the Republic a better place through a seat in the Senate. He is smart, Ivy educated, a great debater, and has been entrusted with a Senate seat by the people of Texas.  Even if he has a change of heart after his soon-to-be-failed Presidential quest, the bridges to his fellow Republicans will be burned and bridges to the Democratic Senators will never be attempted.  How sad.

Fifth, as the list above shows, this correspondent has no issue with strong points of view or personalities.  In my time, I have been condemned for difficult positions.  The Senate is enriched by strong points of view and challenging the other 99 members as legislation is crafted. In fact, Senate rules empower that minority of view and ensure that it will be heard and have a chance to influence every issue that comes through the chamber.  Courageous stands on principle make the Senate a special place— but that is not what Cruz did here.  With that immense power, comes a great measure of responsibility.  Even in the US Senate, one person cannot stop the will of a supermajority of their colleagues.  The Congress must respond to the issues of the day and do so in a reasonable amount of time.  The peculiar rules of the Senate demand civility and decorum.  Further, the Senate— and this is a difficult point for the Tea Party types to accept—requires compromise to accomplish the work of the nation.  Was there a “corrupt deal” in place when McConnell made his assurances to Cruz?  I don’t know.   I do know that the Senate Majority Leader has to manage a lot of moving parts: his caucus, the Senate as a whole, the House, the Administration, his party, not to mention his constituents back home—all at the same time.  Things change, and deals must be made to accomplish what the leader thinks is right.  The caucus chose McConnell as their leader because they felt he could do what was right for the caucus, the Senate and the country.  Circumstances change in Washington on a daily basis.  When they do, that is not the same as lying.  In addition, compromise is what grown-ups do in every facet of their lives— only children expect to get their way every time.

Finally, Cruz chose to use incendiary language on the Senate Floor.  The Constitution’s Speech or Debate Clause guarantees Cruz free speech on the Senate floor, but just because he can say something does not mean he should.  There are few things that can be said on the floor and on the record that legislators find abominable and foremost is that a colleague “lied.”  Senate rules state that no senator “in debate shall, directly or indirectly, by any form of words impute to another senator or to other senators any conduct or motive unworthy or unbecoming a senator.”  Cruz’s statement is even worse than when an Irish legislator told another to “Fuck off.”  It calls into question the Leader’s integrity—something he needs to run the Senate, and negotiate with the House and President.

Cruz made his speech and probably wanted to score a few cheap points against “the establishment” to fire up his Presidential campaign supporters.  Sadly, his words diminish a great institution.

Daniel_Webster_-_circa_1847 Webster is a special correspondent for Dome.

Analyzing Indiana’s Religious Freedom Restoration Act

July 24th, 2015 in Legislation in Court, State Legislation

Within the past few months, Indiana’s Religious Freedom Restoration Act (RFRA), Senate Bill 101, has generated a lot of controversy. Governor Mike Pence signed the contentious bill into law on March 26th. This move was met with simultaneous outrage and praise. According to Time, the supporters characterize the bill as a measure to “make sure the government doesn’t impinge on the religious liberty of Hoosiers.” However, critics claim it is a thinly veiled attempt to make discrimination against the LGBTQ population based on religious belief a legal practice. Acknowledging the controversy a week later, Governor Pence signed a revision to the Religious Freedom Restoration Act, Senate Enrolled Act 50, which made it explicit that the law did not allow for discrimination based on traditionally protected classes. This post will analyze the criticisms aimed at the bill as originally signed by Governor Pence, consider whether the fix passed by the legislature addresses the critics concerns, and explore any issues that remaining in the updated legislation.

The Problem

Indiana passed the RFRA with intentions to protect the citizens of Indiana from the government

Indiana Statehouse Indianapolis, 1888

Indiana Statehouse
Indianapolis, 1888

infringing on their religious beliefs. The RFRA provides that “a governmental entity may not substantially burden a person’s exercise of religion . . . .” unless government shows that the burden is “in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” Not so bad, right? Indiana isn’t the only state to have a RFRA. And in fact, it appears to be almost identical with the federal RFRA. However, there are several important differences between the acts, and therein lies the problem. While the substantial burden test in the two laws (furtherance of a compelling governmental interest by the least restrictive means) is identical, Indiana’s law allows “[a] person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened . . . may assert the violation . . . as a claim or defense . . . regardless of whether the state or any other governmental entity is a party to the proceeding.” (Emphasis added to show a departure from the federal RFRA). Furthermore, the federal RFRA provides that a “person” may use the RFRA as a claim or defense, however, the Indiana RFRA expands that definition to include individuals, churches and religious groups, and even corporations. As Garrett Epps at The Atlantic correctly points out, this difference in language is quite significant and is at the heart of the situation that critics of the bill fear: discrimination from a store owner against… anyone.

Epps points out two cases worth mentioning: Elane Photography v. Willock and Burwell v. Hobby Lobby Stores, Inc. First, in Elane Photography, a same sex couple sued a photography company because the company only photographed traditional weddings due to the owner’s religious convictions. The photography company argued that New Mexico had enacted a RFRA which allowed them to invoke the RFRA as a defense against the claim. However, the Supreme Court of New Mexico disagreed. In what appears to be a straight forward issue in the case (the issue was treated in about one page in the majority opinion), the court held that the RFRA “was not meant to apply in suits between private litigants,” only suits where the government was a party. Indiana’s law purposefully contains language (“regardless of whether the state or any other governmental entity is a party to the proceeding”) explicitly designed to prevent the courts in Indiana from reaching a conclusion like the one reached in Elane Photography. Second, in Hobby Lobby, the Supreme Court held that for-profit closely held corporations can make use of the federal RFRA. In Indiana’s RFRA language, it is made clear that any corporation, not just a closely held one, can utilize the state’s RFRA.

The Solution

            After Governor Pence signed Indiana’s RFRA into law, there was a huge public backlash against the legislature and the state of Indiana. After much public pressure, the legislature passed a “fix” to the RFRA which the governor signed into law. This fix does two things. First, it makes it explicit that the RFRA is not to be used by a “provider” as a basis or as defense to “refus[ing] to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member . . . of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service. . . .” It accomplishes this feat by adding the preceding language as a section of the bill. Second, it clarifies that that “provider” includes individuals and businesses but not churches, religious organizations, or religious officials acting on in a religious function. The definition is significant because it essentially allows religious institutions to refuse to offer services based on one of the protected classes named earlier in the legislation fix. Governor Pence claims that by signing this fix, he makes it clear that he has Indiana’s best interest in mind while passing this bill and that he hopes “every person feels welcome and respected [in Indiana] . . . .” Some, like Angie’s List CEO, think that the fix “is insufficient,” while others argue that the fix goes too far and “amounts to wholesale repeal of the [RFRA].” The reality is somewhere in the middle.

Governor Pence and the Indiana’s legislature’s “fix” does address the civil rights concerns, but probably does not do enough to carry out the intended purpose of the law and is very unclear. First, if the Indiana legislature really wanted to fix the law in a way that avoids these problems, they have not only a federal model, but statutes in 19 other states (save Texas and Arkansas which suffer from similar defects as Indiana’s law) to borrow from without wading into territory that could allow; or even encourage, discrimination. Rather than amending the engrossed bill with a clause that prevents the RFRA from being used as an affirmative defense to discrimination, the state legislature should have owned up to its mistake, started from scratch, and used clearer, more moderate language.

Second, the fix still doesn’t address a fundamental logical flaw with the RFRA. While the fix does outlaw RFRA fueled discrimination per se, a private party can still use this law when sued by another private party. Removing this clause would still achieve the religious freedom that Indiana is looking to give by protecting citizens from governmental interference with their exercise of religion while also not unfairly infringing on the rights of others in the name of personal belief.

1436370540Michael Whittington is from Arlington, Texas and received his philosophy degree from the University of Texas at Arlington. He is set to graduate from Boston University School of Law with a Juris Doctor in Spring of 2016. Michael hopes to work with legislation in some capacity regardless of the path his career takes after law school.

Take Two: Texas’s Voting ID Act is Challenged Again

July 24th, 2015 in Federal Legislation, Legislation in Court, State Legislation

A Texas voter identification law is back in the spotlight after the Fifth Circuit Court of Appeals recently  heard arguments on whether the law is unconstitutional and violates the Voting Rights Act by discriminating against low income and minority voters.

The 2011 law requires voters to show photo identification (there are a few, limited exceptions) when voting in person. The law requires a voter to present one of the seven forms of approved photo ID when voting and the ID must be current or expired for no more than 60 days.  Further, the name on the ID must be exactly the same or “substantially similar” to the registered voter name; otherwise the voter can only cast a provisional ballot and must return within six days of the election to further verify his/her identity. Voters without an acceptable photo ID can apply for an election identification certificate, but to obtain the certificate they must verify their identity with additional documents, which cost money. The current law affects more than 600,000 Texan voters who lack an approved ID.

Texas’s voter ID law is now one of the strictest in the country and part of a growing trend by states,

Texas State Capitol Austin 1888

Texas State Capitol
Austin 1888

which proponents argue is necessary to prevent voter fraud. Currently, 32 states have voter identification laws in force. These include both photo ID (16 states) and non-photo ID (16 states), with a variety of requirements and limitations. Opponents, often Democratic leaning groups, argue that the laws target the poor, minorities, college students, and other groups who tend to vote for Democratic candidates.

In March 2012, the Department of Justice (DoJ) prevented the law from taking effect under the Voting Rights Act. Sections 4(b) and 5 of this 1965 law require “covered jurisdictions,” which includes Texas, to preclear any changes to their voting laws before they can go into effect. A covered state must prove the voting change does not have the purpose or effect of denying the right to vote based on race, color, or membership in a language minority group. The DoJ determined that Texas failed to show that the law would not have a discriminatory effect on Hispanics and other minorities or that there is a significant voter impersonation problem which the law seeks to correct. A unanimous three-judge panel of the D.C. Circuit Court confirmed the department’s conclusions that Texas law violated the Voting Rights Act because it would impose “strict, unforgiving burdens on the poor, and racial minorities.” In June 2013, however, the U.S. Supreme Court struck down  the Voting Rights Act’s coverage formula (Section 4(b)), which made the preclearance requirement (Section 5) moot.  As a result of Shelby County, the Supreme Court vacated  the district court’s ruling, allowing the law to go into effect.

In August 2013, the DoJ sued Texas again, but this time argued that the Texas law violates Section 2 of the Voting Rights Act, which applies to non-preclearance states and prevents the same discrimination as Section 5. On October 9, 2014, a district court judge agreed and found the law unconstitutional. The 147-page opinion states that the law “has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose.” The court further held that the law creates “an unconstitutional poll tax.”  The Fifth Circuit, however, permitted the law to remain in effect, which the Supreme Court affirmed, due to the timing of an upcoming election.

The fate of the law is now with the Fifth Circuit, which will determine whether the law is discriminatory. Despite being among the most conservative circuits in the nation, it is likely the Fifth Circuit will uphold the lower court’s decision invalidating the law because the state presented little evidence showing the need for the law or disproving that the law was enacted for discriminatory reasons. In-person voter fraud is rare and there was little evidence showing requiring a photo ID would prevent this. In the ten years preceding the Texas law, during which 20 million votes were cast, only two people were convicted of in-person voter fraud. The state claimed the law would help prevent people from voting under deceased voters’ names, but failed to present any evidence showing this actually occurs. Further, mail-in voter fraud is more prevalent and the law allows individuals without a photo ID to vote this way.

During oral argument, the court criticized the state for relying on the fact that no smoking gun exists to prove the law was enacted with a discriminatory purpose. Judge Haynes, a Republican appointee, noted that requiring the plaintiff to provide a written or oral statement that says the law was enacted with the purpose to discriminate is unlikely and unrealistic. Rather, plaintiffs can prove discrimination with strong circumstantial evidence. The state argued that because there is no evidence minorities were unable to vote, the law was not discriminatory. However, if the law was enacted with a discriminatory purpose the number of people affected by it does not matter. It is still unconstitutional.

Finally, the underlying documents required to obtain the “free” election identification certificate have a cost and this creates a plausible argument that the state is establishing a poll tax, which is unconstitutional. The court did also discussed remanding the case back to the lower court for further consideration to look at the law in light of newly filed bills that would expand the acceptable forms of photo ID or to look at the last election, which was conducted under the law, to get an idea of the law's impact.

Even though the current law’s future is uncertain, the Texas Legislature recently considered additional voting ID requirements. The proposed legislation, House Bill 1096 introduced by Rep. Jim Murphy (R-Houston), would require the address on a voter’s ID to match their voter registration address. Rep. Murphy claims the measure will ensure that voters will reside and vote in the same precinct. Opponents of the law argue this is another measure to target and suppress poor, minority, elderly and disabled voters. The bill was approved by the House on May 8 and sent to the Senate for consideration. The Senate Committee on State Affairs held a public hearing on May 18, which included supporting testimony from the Harris County Republican Party Ballot Security Committee and opposing testimony from the Texas NAACP and the Texas Democratic Party. The committee reported the bill favorably (voting 7-2) to the Senate. The bill was scheduled for a full Senate vote before the legislative session ended, but was ultimately never voted on and died.

When the Fifth Circuit rules on this matter, the decision should serve as a road map for the many other states who have changed or are planning to change their voting laws on the grounds of preventing fraud.


1436458928Amanda Hesse is from Princeton, New Jersey and graduated from American University with a dual major in Law & Society and Public Communication. She anticipates graduating from Boston University School of Law with a Juris Doctor in Spring 2016. During Summer 2015, Amanda will intern at the Southern Poverty Law Center in Jackson, Mississippi, where she will focus on juvenile justice and prison conditions reform.

Unconstitutional Budget Cuts – the Illinois Pension Controversy

July 10th, 2015 in Analysis, Budget & Appropriations, Legislation in Court, State Legislation

Across the country, state governments are facing financial crises and seeking to devise effective ways of saving costs. In Illinois, lawmakers have recently found themselves in conflict with the Illinois Supreme Court over a 2013 budget-related pension reform law. On May 8, 2015, the Court found the law unconstitutional, compelling legislators to go back to the drawing board and find alternative means of balancing the budget.

Illinois State Capitol Springfield 1868

Illinois State Capitol
Springfield 1868

With the aim to reduce expenditures, the 2012-2013 Legislature passed  “An act concerning public employee benefits,” meant to address “atypically large debts and structural budgetary imbalances” and an extremely low—and potentially falling— credit rating.  Also, the state’s public pension system was considered the most underfunded of any in the United States. The General Assembly expressed hope that the Act would “lead to fiscal stability for the State and its pension systems.”  The key provisions of the Act were:

1) terminate automatic, compounded annual cost-of-living increases for retired persons;

2) increase the retirement age for current public employees; and

3) reduce the salary amount that can be used for the calculation of pension benefits.

The Illinois State Constitution, however, includes specific pension provisions for public employees; Article 13, Section 5 describes the pensions in Illinois as a binding contract "which shall not be diminished or impaired.”

Various employee groups, retirees, and unions challenged the Act by asserting their constitutional rights. The Illinois Retired Teachers Association sued first in December, 2013, with a labor coalition named We Are One joining in the litigation a month later. The labor coalition boasted over 621,000 members, including: the Service Employees International Union (SEIU) Local 73, the Illinois AFL-CIO, the Illinois Federation of Teachers, the Illinois Nurses Association, the Illinois Police Benevolent and Protective Association, the Associated Fire Fighters of Illinois, and others. The We Are One complaint asserted that the Act violated the Illinois Constitution’s Pensions Clause and resulted in "an unconstitutional diminishment and impairment of the pension amount a member receives,” as well as violations of the Constitution’s Contracts Clause and Takings Clause.

After the Illinois Circuit Court found the pension law to be unconstitutional, the State appealed to the Illinois Supreme Court. Several amicus curae, including those submitted by professors specializing in constitutional and contract law, social service providers and the City of Chicago, supported the law and argued in favor of its legitimacy. Like the state, they argued the state’s sovereign police power enabled it to reduce the pension benefits as a way of addressing the current budget emergency.

The Illinois Supreme Court, however, unanimously voted to strike down the pension reform law. The court found that the Act violated the Pension Clause despite the financial difficulty placed upon the state with the public pension program:

“For as long as there have been public pension systems in Illinois, there has been tension between the government’s responsibility for funding those systems, on the one hand, and the costs of supporting governmental programs and providing governmental services, on the other.” Nevertheless, the court firmly concluded that the law was unconstitutional, writing that “there is simply no way that the annuity reduction provisions in Public Act 98-599 can be reconciled with the rights and protections established by the people of Illinois when they ratified the Illinois Constitution of 1970 and its pension protection clause.”

The court was also unconvinced by the State’s primary affirmative defense – that the pension reform law was a valid exercise of the State’s police power in a state of emergency.  Citing the cyclical nature of the economy, the Court asserted that the State has faced fiscal struggle before and cannot lower or terminate expenditures that the Illinois Constitution protects. As one potential alternative, lawmakers have submitted legislation to confront the state debt by amending the Illinois Municipal Code. This law would allow cities in Illinois to file Chapter 9 bankruptcy petitions under the national Bankruptcy Code.

The Illinois pension reform controversy may hold an important lesson for other legislatures struggling to balance the budget, especially since six other states have constitutional protections for public pensions. If the Illinois Supreme Court’s decision is any indication of how other state courts might react, legislators would be advised to keep state constitutionality in mind when developing budget-related bills; the judiciary will likely not be receptive to economic arguments when used as justification for violating an unambiguous constitutional clause. Facing such provisions, lawmakers may ultimately be drawn to amending the state constitution as a strategy, which Illinois Governor Rauner reportedly plans to pursue in the next year.

1436458928-3Chloe Noonan is from Monterey, California and graduated from Sarah Lawrence College with concentrations in Modern Languages and International Studies. She anticipates graduating from Boston University School of Law with a Juris Doctor in Spring 2016. During Summer 2015, Chloe will intern at the Lawyers’ Committee for Better Housing in Chicago, Illinois, where she plans to focus on affordable housing preservation and eviction defense for low-income tenants.

Déjà Vu for a Computer Programmer: A New York Statute’s Language Saves Him Again

July 10th, 2015 in Federal Legislation, Legislation in Court, News, State Legislation

A former Goldman Sachs computer programmer who had a federal jury conviction for illegally taking proprietary computer code from his employer overturned in 2012 was found guilty again—only to have the conviction reversed again by a judge. The verdict came in a New York state prosecution, People v. Aleynikov. This high profile case not only inspired a character in Michael Lewis’s book Flash Boys, but it also provides an interesting example of how a statute’s text can play a pivotal role in a case’s outcome.

According to the facts in his federal appeal, Sergey Aleynikov worked as a computer programmer for

New York State Capitol Albany 1899

New York State Capitol
Albany 1899

Goldman Sachs from 2007-2009 where he developed complicated code for the company’s high frequency trading (HFT) system. He left the company in June 2009 to go work for a start-up trading company. However, on his last day, he uploaded more than 500,000 lines of code from Goldman Sachs’ HFT system to a server in Germany. When he arrived home, he downloaded the code to this personal computer and copied some of the files to other devices. On July 2, 2009, he traveled to attend meetings at his new company and took a flash drive with him containing some of the source code. The next day he was arrested. He was charged with violating the federal Economic Espionage Act (EEA) and the National Stolen Property Act (NSPA). After only a few hours of deliberation, a jury found Aleynikov guilty of violating both acts. However, on appeal, the Second Circuit reversed both verdicts and held that Aleynikov’s behavior did not violate either the EEA or the NSPA.

What caused the reversal despite a seemingly confident jury? The language of both statutes. Aleynikov argued that the computer code was not a “product” that was “produced for or placed in interstate commerce” as required by the EEA and that the computer code was not a “good” or “ware” under the NSPA because it was a purely intangible product. The Second Circuit agreed and adopted these fairly narrow readings of both statutes when it determined that Aleynikov’s behavior did not violate either act.

Starting with the EEA charge, the court did not resolve the question of whether intangible computer code is a “product” because it determined that Goldman’s HFT system was not “produced for” or “placed in” interstate commerce (discussion at U.S. v. Aleynikov, 676 F.3d 71 at 82). The court read these words as requirements for a person to be found guilty of violating the EEA after relying on both the act’s plain language and legislative history (discussion at pages 79-80). The court ultimately held that an internally used computer program that a company has no intention of selling was not “produced for” or “placed in” interstate commerce (discussion at page 82).

The court did address whether computer code qualified as a “good” when it looked at the NSPA because the term is undefined in the statute (discussion at page 76). The court heavily relied on precedent, including the Supreme Court’s decision in Dowling v. United States, to determine that a “good” must be a tangible piece of property taken over state lines and because code is purely intangible it does not fall under the NSPA (discussion at page 77). In Dowling, the Supreme Court held that the NSPA “clearly...contemplate[s] a physical identity between the items unlawfully obtained and those eventually transported.” (discussion at Dowling v. U.S., 473 U.S. 207 page 216). The Second Circuit also relied on similar decisions by the Tenth, Seventh, and First Circuits to conclude the NSPA does not cover the theft of intangible things and therefore, Aleynikov is not guilty of violating the act. (discussion at U.S. v. Aleynikov, 676 F.3d 71 pages 77-78).

However, the story does not end there. After his federal charges were overturned, the Manhattan District Attorney’s office decided to prosecute Aleynikov under state law. Aleynikov was charged with two counts of unlawful use of secret scientific material and one count of unlawful duplication of computer related material. The jury recently issued a split verdict and found Aleynikov guilty on one of the secret scientific material charges. The jury could not reach a decision on the second scientific material charge, and acquitted him on the duplication charge (which is a bit odd since both charges require a finding that the protected material was reproduced). For the purposes of a potential appeal, it is important to focus on the secret scientific material statute to determine whether it is likely an appeals court will overturn Aleynikov’s guilty verdict.

The statute states a “person is guilty of unlawful use of secret scientific material when...he makes a tangible reproduction or representation of such secret scientific material by means of writing, photographing, drawing, mechanically or electronically reproducing or recording such secret scientific material.” (emphasis added). Similar to the federal case, because the New York statute fails to define “tangible” or whether computer code qualifies as a tangible item, the jury was required to make this decision to determine whether Aleynikov’s transferring of source code to a flash drive violated the law. The jury spent over a week deliberating and had to have the jury instructions re-read several times before the instructions were eventually provided in writing. The jury also sent the presiding justice over a dozen notes asking for clarity on the meaning of the law, which suggested the statute is unclear.  As the New York Times reported, even the justice who presided over the case expressed concern about whether Aleynikov’s actions fell within the statute. Despite the long deliberation and some odd twists and turns (including avocadogate), the jury ultimately decided Aleynikov violated the law. In July, 2015, however,  the conviction was overturned by the New York State Supreme Court. Justice Daniel Conviser said prosecutors “did not prove [Aleynikov] committed this particular obscure crime.”

This case is interesting because it highlights the difficulty jurors and judges face when interpreting statutes—especially in light of advancing technology. The federal and state statutes were drafted prior to the creation of much of the technology involved in this case. After the Second Circuit’s ruling on the EEA, Congress actually amended the statute’s language.

Given the judge’s disagreement with the jury in this case, the New York statute’s language is ambiguous and clearly a barrier to prosecutors bringing future criminal charges.  Like Congress, the New York Legislature will have to make amendments to the current statutes, or create a new statute that reflects current technology—and hope the language remains relevant for more than a few months.


1436458928  Amanda Hesse is from Princeton, New Jersey and graduated from American University with a dual major in Law & Society and Public Communication. She anticipates graduating from Boston University School of Law with a Juris Doctor in Spring 2016. During Summer 2015, Amanda will intern at the Southern Poverty Law Center in Jackson, Mississippi, where she will focus on juvenile justice and prison conditions reform.

A Win for Common Sense, A Loss for Agency Deference: ACLU v. Clapper

July 8th, 2015 in Analysis, Federal Legislation, Legislation in Court

Edward Snowden shocked the world when he leaked highly classified and confidential information in June 2013 regarding government authorized surveillance of telephone calls in the United States. The American Civil Liberties Union then filed suit against James Clapper, the Director of National Intelligence. The district court returned a verdict in favor of the government concluding that “the NSA’s bulk telephony

Texas State Capitol Austin 1888

Texas State Capitol
Austin 1888

metadata collection program is lawful.” Of course, the ACLU appealed. On May 7th 2015, the 2nd Circuit Court of Appeals reversed the district court’s decision and concluded that “the program exceeds the scope of what Congress has authorized. . . .” Among the many administrative law issues that the court considered, the court debated and discussed the scope of the term “relevant” as used in § 215 of the PATRIOT Act in relation to the breadth of the metadata collection program.

The Metadata Program and § 215

            According to the appellate court opinion, the metadata program was a sprawling endeavor by the government to require telephone companies to provide “‘on an ongoing daily basis’” information to the NSA regarding calls where at least one party was located in the United States. Section 215 authorizes the government to request “an order requiring the production of any tangible things . . .” to investigate terrorism. Further, the law (50 U.S.C § 1861) stipulates that the request should “include a statement of facts . . . that the tangible things are relevant to the authorized investigation . . . .” (emphasis added). One question before the court was whether the data gathered from NSA’s very broad metadata collection program constituted something that was relevant to an authorized investigation.

The Arguments on Authorization

            One of the cruxes of the opinion is whether Congress authorized the NSA to act in such a broad fashion. If the court determined that “relevant” included the NSA’s broad data gathering program, then the NSA would be acting within the bounds that Congress laid out for them in § 215. The government contended that relevance “is an extremely generous standard.” The court noted that the government compares the standard of relevance meant to be used in this context to the standard of relevance used in grand jury investigations. That is to say the government could require dissemination of records in order to search for the information that would help prevent future terrorist attacks. The court observed that this analogy is even supported by the legislative history behind § 215. On the other side, the ACLU argued that “relevance is not an unlimited concept, and that the government’s own use (or non-use) of the records obtained demonstrates that most of the records sought are not relevant to any particular investigation.” They asserted that the government is not seeking the records “to review them in search of evidence bearing on a particular subject . . .” but instead wants create a “vast data bank, to be kept in reserve and queried if and when some particular set of records might be relevant to a particular investigation.” Ultimately, the court concluded that “relevant” had a more narrow definition than the government argued, therefore the NSA’s metadata collection program is unlawful.

The Courts Careful Balancing Act

Despite compelling arguments from the government, the court reached the right conclusion. The court recognized that the government used legislative history effectively in its argument and references discussion from the 2006 PATRIOT Act reauthorization debate where Senator Kyl likened the scope of the § 215 relevance standard to the standard that has been effective during a grand jury investigation while prosecuting other crimes. However, the court ultimately used this legislative history and testimony against the government. The judge notes that according to Morissette v. United States, when Congress acts to enact a term of art into law that has a commonly recognized legal meaning, like relevance in this case, then it also adopts all of the ideas that have developed and defined that law over the years. The case holds that there is an important distinction between a specific act investigated by the grand jury and the broad demands of the government in requesting telephone metadata. Further, the court pointed out that this metadata bank isn’t even useful until the government has a reason to search through it, which is fundamentally different from the traditional use of document gathering in a grand jury setting. This is a good use of legislative history by the court because, while the government did have clear intentions of adopting this standard, their use of this floor debate in construing the term “relevant” cuts against them under the Morissette standard.

Additionally, the court utilized the dictionary definition to interpret the statute. The court reasoned that the government reads the term “authorized investigation” out of § 215 by gathering the information and then using it when a need arises. The Oxford English Dictionary defines “investigate” as: “[t]o search or inquire into; to examine (a matter) systematically or in detail; to make an inquiry or examination into.” The court found the definition of “investigate” contemplates the specificity of a particular investigation. This is a good use of textualism as a cannon of statutory interpretation. It is the words in the statute that were enacted, not the overarching policy goals that the public did not even know about until they were controversially leaked. Based on this court’s reasoning, the text of the statute does not support an overbroad metadata collection program and, therefore, the NSA’s metadata program exceeded the scope of relevant as used in § 215.

A Win for Common Sense, A Loss for Agency Deference

While the term “relevant” was construed correctly, and the construction is likely to sit well with the general public, there is an argument to be made that the court should not have interfered with what the NSA clearly thought was a proper construction of the term. The NSA was tasked with implementing measures to combat terrorism. It then designed a program and followed the proper procedures to obtain authorization to carry out the plan. Now the program is getting all kinds of negative backlash. This seems to run counter to the theory of agency deference due to its place in the Constitutional order (Chevron) and agency expertise (Mead). However, the court walked a tight rope and made good use of the traditional tools of statutory interpretation in deciding that the government’s program was over broad given the statute use of the term “relevant.” As such, the Second Circuit reached the correct conclusion: the NSA was not authorized to conduct this broad metadata collection because the information was not relevant to an investigation.

Now that Congress has reformed the collection of metadata through the USA FREEDOM Act, the statutory interpretation in ACLU v. Clapper may be §215’s lasting legacy.

1436370540Michael Whittington is from Arlington, Texas and received his philosophy degree from the University of Texas at Arlington. He is set to graduate from Boston University School of Law with a Juris Doctor in Spring of 2016. Michael hopes to work with legislation in some capacity regardless of the path his career takes after law school.