Category: Federal Legislation
The Demise of the EU-U.S. Safe Harbor Agreement
Maximillian Schrems, an Austrian law student, is at the center of a monumental shift in data relations between the United States and the European Union; a shift that revolves around a clash in philosophies regarding data privacy.
The EU views privacy as a fundamental human right. The U.S. does not. Americans seem willing to relinquish control of personally identifying data, as long as the data is protected and used responsibly. When a company does not protect personal data, Americans express their displeasure in the form of civil litigation rather than legislation.
In comparison, the EU codified data privacy rights in 1995 in Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, P. 31) (“Data Protection Directive”). This directive provides strong data privacy rights for EU citizens. Most notably, each EU citizen has the right to, at any time, revoke previously given consent to obtain or use personally identifying data, access their own personally identifying data, and correct that personally identifying data.
Because of these stronger data privacy rights, the transfer of personally identifying data from the EU to the U.S. concerns many EU citizens and policy makers. The primary fear, which was intensified by the Edward Snowden revelations, is that U.S. companies will not respect EU Data Privacy Laws.
European Union
Court of Justice
Under the Data Protection Directive, companies can legally transfer data from the EU to the U.S. by obtaining consent from the data owner, entering into data protection agreements, creating binding corporate rules, or implementing model clauses. These methods are far from ideal, however. They are expensive and subject U.S. companies to the jurisdiction of EU Data Privacy Commissions.
As e-commerce, remote work, and social media grew in popularity, the digital transfer of personal data became a regular part of daily life and existing data transfer methods proved unwieldy and burdensome. In response, the U.S.-EU Safe Harbor Agreement (“Safe Harbor”) addressed these concerns by creating a streamlined process for U.S. companies to comply with the Data Protection Directive. Companies that self-certify with the FTC under Safe Harbor agree to abide by the principles of EU data privacy laws but are under FTC jurisdiction instead of EU jurisdiction.
While Safe Harbor addresses the concerns of U.S. companies, many in the EU criticize Safe Harbor as ineffective, maintaining that the self-certification process and lack of substantive enforcement renders Safe Harbor meaningless. In addition, classified documents made public by Edward Snowden in 2013 indicate that certain U.S. intelligence services allegedly tap into the central servers of major U.S. Internet companies and access personal data. By comply with U.S. law and allowing the government access to this data, companies cannot also adhere to the data privacy principles agreed to under Safe Harbor.
This very concern prompted Maximillian Schrems to file a complaint with the Irish Data Protection Commissioner regarding his personally identifying data collected by Facebook. As a Facebook user for over seven years, Mr. Schrems contends that a portion (if not all) of his data was transferred from Facebook’s Irish subsidiary to Facebook data servers located in the U.S.
The Irish Data Protection Commission originally rejected Mr. Schrems’ complaint, citing the Safe Harbor agreement as sufficient evidence that Facebook provided adequate levels of protection for the personally identifying data transferred to the U.S..
While Facebook is Safe Harbor certified, Mr. Schrems maintains that the Snowden revelations prove that U.S. law and policy are such that it is impossible for a company to simultaneously comply with Safe Harbor standards and U.S. law. As such, Mr. Schrems appealed his case to the High Court of Ireland.
On Sept 23, 2015 Advocate General Yves Bot (“AG Bot”) issued a strongly worded opinion in Maximillian Schrems v. Data Protection Commission (case C-362/14), urging the Court of Justice of the European Union to suspend the existing Safe Harbor Agreements.
Less than two weeks later, the Court of Justice of the European Union did just that. On October 6, 2015 the Court invalidated Safe Harbor, declaring that Safe Harbor compromises the fundamental right to privacy, denies the right to judicial protection, and prevents enforcement of EU laws.
Effective immediately, the Court of Justice’s ruling creates very real problems for any U.S. company that relies on Safe Harbor to transfer data from the EU to the U.S. As of October 6, both future and all past data transfers completed under Safe harbor are illegal.
Adding to the confusion is the fact that the European Commission and U.S. authorities are in the process of negotiating Safe Harbor reforms. The Court of Justice’s decision to invalidate Safe Harbor full stop creates an abrupt and unexpected obstacle for these negotiations. The ambiguity surrounding the legal and political future of personal data transfer from the EU leaves U.S. companies, operating under Safe Harbor, a choice between a limited set of less than ideal options:
- Immediately cease all data transfer and update current systems and processes to comply with the EU Data Protection Directive. While being extremely disruptive to business, it may also be difficult to completely shut off all forms of data transfer (such as employee information needed for hiring and payroll) between the U.S. and the EU.
- Continue operating as normal while concurrently developing new systems, hoping that the EU delays enforcing the Data Protection Directive and allows formerly Safe Harbor certified companies an opportunity to update systems and processes in order to comply with the Data Protection Directive outright. While the business may not suffer the full effects of a shutdown, a potentially substantial risk of legal proceedings exists.
- Implement an interim solution that ceases all non-essential transfers of personal data and focuses on ensuring compliance for critical data transfers, while waiting for the European Commission and U.S. authorities to continue their Safe Harbor reform negotiations. Relying on a diplomatic solution is a gamble that some companies may be willing to take. If a satisfactory solution cannot be worked out politically, then there is always Option 4.
- Cease all business in the EU that may result in the transfer of personal data from the EU to the U.S.. This response to the Court of Justice’s ruling may seem extreme, but for smaller businesses it may end up being the most economically rational response if the cost of compliance is greater than the benefit of doing business in the EU.
None of these options are ideal and each one presents significant challenges and uncertainty for U.S. companies. Not only will the initial expense of updating technological systems and business processes be expensive and time consuming, but the potential of increased oversight, auditing, and regulatory action imposed by EU Data Commissions will also result in a rise in the daily operating costs of any company that transfers personal data from the EU to the U.S.
The full extent of the damage caused by the demise of Safe Harbor remains unknown, but one thing is certain: this change in data relations between the U.S. and the EU signals a substantial increase in the cost of doing business in and with the EU.
Deborah J. Hinck is a Colorado native who has recently adopted Boston, Massachusetts as home. She received her B.S. with a double major in Electrical Computer Engineering and Applied Mathematics from the University of Colorado and her M.A. in Communications from the University of Washington. Deborah is expected to graduate from Boston University with a Juris Doctor in Spring 2017. She is interested in technology law and policy, including intellectual property, digital privacy, and digital security. Deborah hopes to contribute in these areas in the future.
Road to Approval: Congressional Hurdles For President Obama’s Trans-Pacific Partnership Agreement
President Obama’s second term has been defined by increased usage of his foreign policy powers. Whether or not one approves of the agreements with Cuba and Iran, among others, these agreements will have enormous implications for the United States and members of the international community. On October 5, 2015, President Obama announced his administration’s newest agreement: the Trans-Pacific Partnership (TPP). The TPP, a partnership between the United States, Japan, and ten other Pacific Rim nations, promises to be the largest regional trade accord in history. The key features of the agreement include improving market access, advancing living standards around the world, promoting innovation and trade, and integrating economies across the Asia-Pacific region. The TPP is set to positively impact “40 percent of the global economy.” Before taking effect, however, each of the twelve nations must ratify the agreement. For President Obama, this means presenting the text to Congress for approval.
The Constitution confers upon the president the ability to make treaties, so long as he has “the Advice and Consent of the Senate.” This consent exists when two-thirds of Senators present concur (Article II, section 2) to the treaty. However, Presidents throughout history have preferred making international agreements through executive agreements rather than treaties. Executive agreements, as opposed to treaties, allow a president to bypass Senate approval. Although the president’s ability to make such agreements is nowhere mentioned in the Constitution, the Supreme Court has upheld their legality. See United States v. Belmont, 301 U.S. 324, 330 (1937) (holding that the Executive, as the sole organ of the government, has the authority to sign non-treaty agreements without the advice and consent of the Senate). Executive agreements, however, do not have the same legal status as treaties, unless they are ratified by the Senate. Executive agreements exist either as sole-executive agreements, made by the president alone if he is acting within his exclusive powers, and congressional-executive agreements, made by the president and authorized by Congress.
The TPP is an example of a congressional-executive agreement, and will need to be approved by a simple majority vote in both the House and Senate. However, before this vote happens, numerous procedural matters need to take place, according to the Congress-enacted Trade Promotion Authority. First, which has already occurred, negotiators from TPP countries must review the text of the agreement before the official text is released. Second, once the text was finalized, President Obama, on November 5, 2015, informed Congress that he intends on signing the TPP, which triggered a 90-day notice during which Congress may review the text (the public only gets 60 days to review the text). Third, once the 90-day period finishes in early February 2016, President Obama may sign the agreement. Fourth, once signed, President Obama must wait another 30 days before submitting the legislation to Congress. Fifth, since President Obama was given “fast-track authority” by Congress, Congress would not be able to make any amendments to the signed agreement, instead only being given the opportunity to reject or concur to the TPP. Thus, if everything goes according to President Obama’s plan, a vote could be held as early as March 2016. However, the House Ways and Means and Senate Finance committees could offer suggestions for changes during the 30 day period preceding final submittal to Congress. This could push the vote date back, potentially past the 2016 Presidential elections.
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Tokyo, Japan 1936
The lengthy timeline for the TPP is likely realistic given the changes that will be proposed by the numerous proponents and opponents of the TPP. Depending on whose voice is louder, the TPP could be quickly approved by Congress or could theoretically be stalled until President Obama is no longer in office. Thus, it is important to analyze the points being put forth by the two groups.
Proponents of the TPP claim that TPP’s reduction in tariffs will make U.S. products more affordable abroad, which will increase U.S. exports dramatically. Second, the TPP will make the United States a more important player in a region that has long been tied with China. For this reason, it is no surprise that China has been excluded from the TPP Third, the TPP promises to impose “strict guidelines on environmental and labor standards”, which include wildlife-trafficking. Interestingly, the TPP proponents consist of bipartisan supporters, including Vice President Joe Biden and Republican Representative Kevin Brady, the new Ways and Means Committee Chairman, who stated that “[d]one right, this agreement will open a billion middle class customers to American goods and services.”
Although proponents are numerous, a fact which allowed for the approval of “fast-track authority” earlier this year, the President will need to convince opponents of the TPP in order to ensure passage of this agreement. Opponents, which include Presidential hopefuls Donald Trump and Bernie Sanders, are concerned over various points of the TPP. First, opponents claim that the TPP will have a massive impact on a large percentage of workers around the world because it could increase competition for low-wage positions. Second, opponents are concerned over protection of intellectual property of pharmaceutical companies, which has long been ignored abroad. Proponents, however, argue that the TPP will establish uniform rules on corporations’ intellectual property.
Although, thus far, everything seems to be going right for the Obama administration’s TPP, opponents are sure to stand in the way. Notably, U.S. Senator Orrin Hatch has stated that “[w]hile the details are still emerging, unfortunately I am afraid this deal appears to fall woefully short.” Whether this opposition statement stems from actual disagreement with the TPP or from dislike of the Obama administration, however, is hard to know. While opponents point to the TPP’s labor provisions as reasons to reject the TPP, other provisions seem to outweigh this potentially negative consequence. The TPP pushes for innovation, increased trade, and includes much needed protections for wildlife and the environment.
Though the TPP is sure to face intense debate in Congress, President Obama will likely do everything in his power to ensure the agreement’s passage. The approval of this massive economic agreement would cement President Obama’s place in history and would surely add to his legacy as a foreign policy-oriented President.
Jeffrey Butensky moved from Argentina to Plantation, Florida and graduated from the University of Florida with a double major in Linguistics and Anthropology. He anticipates graduating from Boston University School of Law with a Juris Doctor in Spring 2017. Although Jeff has a diverse set of legal interests including corporate law, bankruptcy, and immigration, Jeff also hopes to be involved with legislation one day.
Legislating a Disaster: Congressional and Tribal Responses to the Gold King Mine Spill
On August 5, the Animas River in La Plata County, Colorado suddenly turned a bright and unnatural shade of orange as an estimated three million gallons of toxic wastewater spilled from the abandoned Gold King Mine. Local, State, and Tribal governments scrambled to react as the wastewater brought a sudden spike in levels of arsenic, lead, and other dangerous metals. In response to the spill, access to the river has been closed indefinitely and three states (Colorado, New Mexico, and Utah) and two tribes (The Navajo Nation and the Southern Ute Tribe) have declared states of emergency. The wastewater spill—a result of heavy machinery usage near the mine—was ironically caused when Missouri-based EPA contractor Environmental Restoration LLC accidentally breached the mine during an attempted clean-up effort. The spill has not only caused a potentially devastating environmental impact, and put strain on already limited water resources, but also stands to curb tourism, one of the area’s largest economic sectors after the closure of the area’s once profitable mines. Acting to address the crisis, bills have been filed in the House and the Senate, which seek to hold the EPA responsible for costs and harm related to the spill. Additionally, Navajo Councilman Jonathan Hale has filed a tribal bill asking the Navajo Nation to formally adopt a resolution asking the United States President to hold the EPA responsible for the negative impacts of the spill on the Navajo Nation.
The Gold King Mine Spill Recovery Act of 2015:
In response to the ongoing Gold King Mine crisis, Senator Tom Udall (D-NM), along with Senator Martin Heinrich (D-NM) and Senator Michael Bennet (D-CO), introduced S.2063, the Gold King Mine Spill Recovery Act of 2015, on September 22. The bill would impose liability for “any damage to, or loss of, property, or a personal injury or death” under the Federal Torts Claims Act (“FTCA”) for any “injured person,” defined as any individual, tribe, state, business, or other non-Federal entity that suffered injury as a result of the Gold King Mine spill. The bill defines allowable damages under the FTCA as instances of property, business, and financial loss. The bill also waives the maximum amount limitation for FTCA claims related to the Gold King Mine spill and empowers the Administrator of the EPA to provide compensation for an FTCA claim related to the Gold King Mine spill in an amount greater than $25,000 without prior written approval of the Attorney General. The bill further instructs the EPA to create the Gold King Mine Spill Response Program, which includes monitoring and disclosure requirements related to the rivers effected by the Gold King Mine Spill. Finally, the bill would amend Title I of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to address mining related issues by instructing the agencies in charge of aspects of the bill to assess and develop plans related to potentially dangerous mine sites and to disclose to potentially affected states, towns, and tribes before engaging in certain activities that could result in hazardous material discharge. S.2063 is currently pending before the Senate Judiciary Committee.
On September 24, Representative Ben Ray Lujan (D-NM), along with four co-sponsors from New Mexico and Colorado, introduced a bill substantively similar to S.2063 in the House. H.R. 3602 is currently pending before the House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice.
Navajo Nation Bill:
In addition to Congress’s bills, the Navajo Nation is also considering legislation to address the Gold King Mine spill. Delegate Jonathan Hale, chair of the Navajo Council’s Health, Education, and
Navajo Nation Council Chambers
Window Rock, Arizona
Human Services Committee, has filed a bill before the Navajo Nation Council, requesting that the Navajo Nation formally resolve to urge the President of the United States to hold the EPA accountable for their negligence. Legislation 0326-15’s background cites both the immediate harms that Navajo Nation citizens have suffered—including some Navajo citizens having to haul water hundreds of miles to avoid drinking from potentially contaminated sources on the reservation—and the uncertainty surrounding potential future harms that could serve to cause ongoing harm to the Navajo people and government for years. The bill also stresses the importance of the government-to-government relations between the US and tribal governments and the trust relationship and fiduciary duties created by the Treaty of 1849 and the Treaty of 1868. While passing this bill would not substantively change Navajo policy, it would create a strong statement from the legislative branch of Navajo government that the Nation believes the United States should accept full responsibility for the negative effects their negligence has imposed on the Navajo government and people. This bill follows other emergency legislation introduced to the Navajo Council, requesting that over a million dollars be allocated to monitoring and research related to the Gold King Mine spill.
Given the realities of election-year politics, action on the Congressional bills will likely be slow; if it happens at all. However, given the high-profile nature of the spill, it is possible that the efforts to aid the effected parties could gain traction. Notable is the close coordination between the House and the Senate on the Gold King Mine Spill Recovery Act. While the bills are certain to be changed during the committee process, when introduced both the House and the Senate versions of the bill were nearly identical, with only minor punctuation and word-substitution differences. Further, while the Navajo bill would not actually change any Navajo policy, an officially legislated call on President Obama to have the US government accept responsibility for the harm the EPA negligently caused on the Navajo Nation would be a strong show of political pressure. Due to the widespread harm caused by the spill, it is clear Congress needs to act. Without decisive Congressional action, cleanup efforts will be slow and litigation could drag on for years, if not decades. Additionally, while the Navajo Nation is currently limiting their approach to essentially shaming Congress into action, they should consider a more substantive push. The Navajo Nation may have openings to sue the government, and even barring that may find other more forceful approaches to ensuring their citizens are protected from the effects of the spill. While the Navajo government has devoted one million dollars to study the spill’s effects, this may fall short of actual research needs—not to mention the expensive clean-up costs. While progress remains slow for now, decisive action is needed.
For the latest information on the House and Senate bills be sure to follow their development on www.congress.gov and for the latest on Navajo Nation legislation visit http://www.navajonationcouncil.org/legislation.html.
Tyler L. Spunaugle is from Miami, Oklahoma and graduated from Dartmouth College majoring in both Philosophy and Native American Studies. Tyler is scheduled to graduate from Boston University with a Juris Doctor in Spring 2016, with active participation in two of BU's clinics. After graduation, Tyler will be working as a staff attorney for the Government Accountability Office in Washington, DC.
Legislators of the Year 2015
In our inaugural Legislator of the Year Award, the staff of Dome is pleased to recognize Rep. Elijah Cummings (D- MD) and Speaker Paul Ryan (R-WI).
Elijah Cummings
Rep. Elijah Cummings really earned this award in April and May during and after the riots in his home town of Baltimore protesting the death of Freddie Gray. The Freddie Gray case was one of the true low points in a year filled with low points concerning race relations and the conduct of police officers around the country. Incident after incident made minority communities feel besieged in their own neighborhoods by an apparently aggressive, militarized and racist police force. For their part, the police have an extraordinarily difficult job and often feel unduly criticized when force is used in dangerous circumstances and when the officer legitimately feels threatened. This fissure in our society deepened and widened this year and is a complex social problem that will likely take years to fully understand and address.
Still, during one of the darkest moments of the spring, Rep. Cummings took a leadership role and provided not only a voice of reason, but rallied his community to act in a thoughtful and positive manner to seek justice and reform.
He called for peaceful protests that would lead to change while praising the restraint of the Baltimore Police. He pushed for a stop to the violence that tore at Baltimore and helped clear the streets during a mandatory curfew. He also lent an eloquent voice to a community seeking justice. At Mr. Gray’s funeral Rep Cummings spoke directly to Gray’s mother, "For me, I am in the twilight years, but I am telling you we will not rest, we will not rest until we address this and see that justice is done. … We will not fail you.” Rep. Cummings welcomed a Federal probe into the Baltimore Police, hoping the investigation would lead to improved relations between the police and the community, “The community needs the police and the police need the community to solve crime.”
When something like this happens, a community typically looks to and rallies around local leaders—pastors, city councilors and mayors. Congressmen, with big districts, focused on federal issues, and spending much of their time in Washington, are naturally not as close to a particular neighborhood or constituency. It is a great testament to Rep. Cummings that when Baltimore needed a reassuring—yet outspoken—presence, they turned to him.
Earlier this month the first prosecution of a police officer involved in the Gray Case ended in a mistrial. Even before the decision, Rep. Cummings again called for calm, “Our future as a more just community will depend more upon our own actions than it will upon the decision of Officer Porter's jury.”
Mr. Gray’s death could have resulted in politicians scoring cheap political points by whipping up the crowd. Fortunately, Baltimore has been blessed with Rep. Cummings who at once is a stabilizing force for the community while also calling for much needed reform.
Rep. Cummings could have been a Legislator of the Year for service to his community, but he also played a crucial role as an opposition leader in the House. He continued to be a key voice on the House Committee on Oversight and Government Reform, playing the foil to Chair Jason Chaffetz (R-UT). More importantly, he agreed to serve as the Ranking Member on the House Select Committee on Benghazi. This never-ending inquiry seems to be nothing more than an attempt to hurt Hillary Clinton’s presidential campaign. The Committee reached its lowest point on October 22, 2015 when Chair Trey Gowdy (R-SC) kept Secretary Clinton on the witness stand for a ridiculous 11 hours. Rep. Cummings was outstanding throughout; pointing out the needless badgering of the witness by his fellow committee members and countering the political—and at times outrageous—lines of questioning.
Some of his constituents want Rep. Cummings to run for the Senate. The Senate’s gain would be the House’s loss—the House needs his leadership now more than ever.
Paul Ryan
This must have been a shocking autumn for the young representative from Wisconsin. Not that he ascended to a position of great power in Washington; the talented Rep. Ryan has always been headed in that direction. His intelligence, creativity and work ethic propelled him first to the chair of the Budget Committee and more recently to the Ways and Means Committee. In many ways he has been the true policy driver of the Republican Party in the Capitol during a time of thoughtless ideology and bumper sticker level political attacks. Speaker Ryan has already been the GOP’s vice presidential pick, and likely was headed to leading the ticket at some time in the future.
And then John Boehner stepped down as Speaker.
Mr. Boehner finally had enough of the backstabbing “Freedom Caucus” and his inability to get any sort of legislation—even essential spending and debt limit bills— through his own chamber without a major struggle because the bills were not ideologically pure enough for a semi-secret cabal of representatives. Then the “Freedom Caucus” refused to support Mr. Boehner’s logical successor Rep. Kevin McCarthy (R-CA). With the subsequent disarray, the caucus turned to a reluctant Rep. Ryan to take the gavel.
Speaker Ryan was right to be reluctant for a multitude of reasons:
First, he was never on the “leadership track,” training to be Majority Leader or Speaker. There is a reason people apprentice with leadership, and why the Austin-Boston Connection was so successful for so many decades. Leadership must deal with the Senate and the President and protect the House while making reasonable compromises. Leadership must skillfully interact with the press and craft a message that—again—protects and benefits the House membership. Leadership must devote considerable time to what David Hawkings calls “the member services dark arts.” Much of this will be new to Speaker Ryan, who has devoted his legislative career to committee work.
Second, the problems that took down Speaker Boehner will only grow. The “Freedom Caucus” is newly emboldened and will continue to hold a sword over the Speaker’s head. Outside groups will no doubt start calling him a RINO or Squish every time he makes a compromise. The Republican Caucus will continue to be a fractured and difficult to manage, especially in an election year. The new Speaker, therefore, will have all the challenges that made Speaker Boehner happily give up the gavel.
Finally, this was not part of his personal plan. Until this autumn, Speaker Ryan had an excellent chance to be a serious presidential contender in the not too distant future. Will he still have that chance after a stint as the Speaker? He will suffer many slings and arrows from both sides of the aisle. And history has not been kind—only James K. Polk successfully used the Speakership as a stepping stone to the Presidency, and only after being governor of Tennessee in between.
And yet Speaker Ryan put all of that aside and took the gavel. He put the House and the Congress above himself and his personal ambition. Congress desperately needs the stability he will bring, and therefore, Speaker Ryan is a very worthy Legislator of the Year.
Using 1115 Waivers to Fulfill the Affordable Care Act’s Promise
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
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.
Timothy 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
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
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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 House’s 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.
Timothy Murphy anticipates graduating from Boston University School of Law in May 2016 with a concentration in Health Law.
Take Two: Texas’s Voting ID Act is Challenged Again
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,
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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.
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.
Déjà Vu for a Computer Programmer: A New York Statute’s Language Saves Him Again
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
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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.
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
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
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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 Court’s 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.
Michael 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.
How Halbig v. Burwell Ruined Obamacare
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The Affordable Care Act should have been a win. It is an important bill with a pressing human rights agenda: to make healthcare available to all despite economic status. It was a bill full of promise and hope. It could advance our country and our political landscape. It could free our healthcare system from the tyranny of insurance companies. It could display to the rest of the world that we are progressive human beings and not merely capitalists bent on increasing our economic superiority at the cost of our own citizens. It was Obama’s signature bill, and a rare realization of lofty campaign promises. Then came Halbig v. Burwell, and all that optimism pretty much went down the drain. Instead of fulfilling its constitutionally prescribed role as objective arbiter, the D.C. Circuit Court displayed a galling about of political acumen, jumping headfirst into the ideological warfare of the capital.
Under the Affordable Care Act (the "ACA"), the health care system in America was restructured and transformed. All Americans were, for the first time, promised health care coverage despite socio-economic status or other restrictions, such as pre-existing conditions. Insurance companies no longer had unbridled power to determine who had access to coverage and, therefore, who could receive affordable medical assistance. Instead, individual citizens could secure medical insurance through government-established insurance exchanges. By offering subsidized insurance to those beneath a certain economic threshold, these exchanges attempted to deliver on the ACA's promise to provide insurance to those who previously could not afford to purchase it.
Such subsidies are essential to the overall success of the ACA, as they form one of the three foundational pegs upon which the ACA was built. These three core aspects of the ACA are: (1) a requirement that insurance companies stop denying coverage to those with pre-existing conditions; (2) the individual mandate, which requires all Americans to receive health insurance through either a private company or a government exchange; and (3) subsidies to make insurance affordable to those who otherwise could not afford it. Without any one of these parts, the ACA would crumble. The system works like this: in order to insure that insurance companies give insurance to those with pre-existing conditions without charging them more than their healthy counterparts, those healthy individuals must be induced to purchase coverage through the individual mandate, and a subsidy must be granted to assist lower-income individuals upon whom the individual mandate could be a hardship. The ACA will, therefore, collapse upon itself if subsidies are not granted to low income individuals.
Of course, the ACA was destined to be politicized. The current DC climate is hyperbolically divided. The difficult reality is that there is no room on the Hill for idealist legislation. All that currently matters in Washington is the civil war between republicans and democrats. The real problem arose when republicans decided to strike against the ACA through the judicial system, thereby highlighting how much our supposedly objective system of justice truly acts as a political arm of the other, stronger branches of government. Halbig v. Burwell perfectly represents the depressing state of the modern court: big-name cases aren't decided on the strength of the issues but are predestined for a particular verdict based on the current political landscape and the personal beliefs of the judges hearing the case. Was anyone really surprised when a three-judge panel comprised of two conservatives and one liberal released a 2-1 decision practically crippling the ACA? How could they be?
To be fair, the legislative interpretation held forth by Judges Griffith and Randolph isn't entirely ridiculous. The plain text of the ACA does seem to draw a distinction between insurance exchanges established by the state and those created instead by the federal government, and the provision concerning subsidies could therefore only refer to those insurances established by the states themselves. My difficulty with this reading of the ACA lies with the very foundation of textualism (a pretty purely conservative form of statutory interpretation) and the ways in which it contradicts the responsibilities I feel courts have when examining a piece of legislation.
First, here are some things judges shouldn't do: interpret a statute based on their own political beliefs; cherry-pick whatever method of statutory interpretation that gives them the result they want; read a statute in a way that blatantly contradicts the legislature's purpose for passing it.
And some things judges should do: interpret a statute in a truly objective manner; consistently use one form of statutory interpretation, preferably not strict textualism; read a statute in the way that is most consistent with the legislative intent while also carefully considering whether the statute violates the Constitution (a side issue which deserves a blog post of its own: the absurd inanity of the doctrine of constitutional avoidance).
Looked at with these standards in mind, Halbig v. Burwell is almost a complete disaster. Through Halbig, the D.C. Circuit managed not only to condone but also embrace the idea that courts are political weapons. They aren't fooling anybody with their textualist jargon because textualism itself is little more than a smokescreen for the conservative agenda. If the judicial system operated as a truly objective body, Halbig would read as a very different opinion (indeed, it would read instead as the much preferable King v. Burwell, decided mere hours after Halbig). I reiterate: courts should serve as impartial bodies that ensure statutes are executed in accordance with legislative purpose without violating the Constitution. Halbig, therefore, is a slam-dunk for the government. The entirety of the ACA crumbles if federally established exchanges cannot grant subsidies. Congress knew this when it drafted the statute. The D.C. Circuit judges knew this when they heard the case. It is indisputable that finding against the government is effectively vetoing the ACA, and it is unacceptable for a court to possess this sort of power, particularly a court that feigns objectivity and political insulation.
My proposed solution is simple. Cases such as Halbig should be decided by examining the history around the statute as well as the purpose of the bill. There is a lot of commentary on the slippery nature of legislative history and the theoretical problems identifying legislative purpose, but all of this criticism misses the point. Even with its complications, purposivism is the best method of statutory interpretation because it leaves the political act of legislating with Congress and away from the judicial branch, which has no business making policy decisions masked as adjudicative ones. Particularly in Halbig, there can be no doubt as to the legislative purpose, so why are we allowing our judges to pretend otherwise and violate their duties and responsibilities with thinly veiled acts of partisanship? Why do we insist on having faith in our highest courts to objectively reach fair decisions when they continuously prove unable to separate their political minds from their professional responsibilities?
Thanks to Halbig v. Burwell and analogous cases, the ACA is no longer a piece of legislation aimed at solving a social problem. It is a victim of the war between conservatives and liberals, and a symbol of just how degraded and deranged our entire national political system has become. The courts, which have the unique power to elevate legal discussion in this country above mere ideological rabble, have abandoned us to the politicians. Worse still, our most powerful and trusted judges have shown themselves to be nothing but politicians themselves. Wrongfully decided decisions like Halbig are found in all levels of the federal judicial system, all the way up to the Supreme Court (you need only look at a Scalia opinion to see how easy it is to forward the conservative agenda through textualism). We need to stop kidding ourselves that the judicial branch is anything more than a useful tool of the legislative and executive branches, a tool they use to re-fight battles they already lost on the floor of Congress.
When the D.C. Circuit rehears Halbig en banc, it has an opportunity to remedy its earlier mistake and uphold the ACA. I hope it does. This isn't because I'm a liberal who supports the ideals behind the ACA but because I recognize the importance of letting our legislative body legislate without interference by the judicial branch. Judges promise to uphold the law, not to destroy it, and it's about time they lived up to their promise.
Alex Forney is from Myrtle Beach, South Carolina and graduated from Brown University with a major in English literature. He anticipates graduating from Boston University School of Law with a Juris Doctor in Spring 2016. During Summer 2015, Alex will work for Ropes & Gray where he plans to focus on representing businesses in general commercial litigation.
