Tuesday, June 30, 2015

Michigan v. EPA - Supreme Court Strikes Power Plant Regs

Michigan v. EPA - Supreme Court Strikes Green House Gas Regs as Irrational

Judicial modesty is a virtue embraced principally in dissent, it seems.  Congress directed the EPA to study the problem of power plant emissions, a major source of pollution because coal burns inefficiently.  The EPA is an agency with substantial scientific expertise.  But, according to the Supreme Court's conservative majority the EPA irrationally failed to consider costs in its calculus.

In the minority's view Justice Scalia's opinion is a dressed up version of the usual talk show laments  - EPA out of control, etc.  The four dissenters, speaking through Justice Elena Kagan, declare:

Despite that exhaustive consideration of costs, the Court
strikes down EPA’s rule on the ground that the Agency
“unreasonably . . . deemed cost irrelevant.”  On the majority’s theory, the rule is invalid because EPA
did not explicitly analyze costs at the very first stage of
the regulatory process, when making its “appropriate and
necessary” finding. And that is so even though EPA later
took costs into account again and again and . . . so on. The
majority thinks entirely immaterial, and so entirely ignores,
all the subsequent times and ways EPA considered
costs in deciding what any regulation would look like.
That is a peculiarly blinkered way for a court to assess
the lawfulness of an agency’s rulemaking. I agree with
the majority—let there be no doubt about this—that EPA’s
power plant regulation would be unreasonable if “[t]he
Agency gave cost no thought at all.”   But that is just not what happened here.

Monday, June 29, 2015

Remembering President Wilson's Purge of Black Federal Workers

President Woodrow Wilson - Democrat, progressive - Princeton history professor, envisioned the League of Nations as a means to world peace.  That is his principal image among Americans.  But there is another side: racist.  The Virginian segregated the Army, purged African Americans from federal jobs.  Josh Marshall has the story. - gwc

Remembering President Wilson's Purge of Black Federal Workers

by Josh Marshall

The 1912 presidential election featured not only a historic fissure in the Republican party, it also featured two candidates associated with the Progressive Movement, Wilson and renegade Republican and former President Theodore Roosevelt running on the Progressive Party ticket. Wilson is known and still honored as a Progressive reformer on the domestic front and his foreign policy is still referenced as the embodiment of idealistic foreign policy engagement, putting democracy rather than realpolitik at the center of policy formulation. Yet to say that Wilson was a disappointment on civil rights is a colossal understatement.

Thursday, June 25, 2015

Disparate ImpactHousing Litigation Survives Supreme Court Challenge : SCOTUSblog

We dodged another bullet today in the Texas Fair Housing Act case.  Writing for the 5-4 majority Justice Anthony Kennedy held to his very formalistic view of racial discrimination but found his way to the plaintiffs side.  Generally only intentional race-based choices satisfy him as improper.  He allows for some flexibility but is deeply skeptical otherwise, as Lyle Denniston notes at Scotusblog.  But today the weight of precedent put in his hands the swing vote that allowed "disparate impact" cases to survive.  He frames the issue thus:

In contrast to a disparate-treatment case, where a
“plaintiff must establish that the defendant had a discriminatory
intent or motive,” a plaintiff bringing a disparate impact
claim challenges practices that have a “disproportionately
adverse effect on minorities” and are otherwise
unjustified by a legitimate rationale. Ricci v. DeStefano,
557 U. S. 557, 577 (2009) ... The question presented for the Court’s determination
is whether disparate-impact claims are cognizable
under the Fair Housing Act (or FHA) 42 U. S. C. §3601 et seq. 
Important is his recognition of the weight of history (documented by the Innovative Communities Project amicus brief) legal segregation, white flight, and the redlining of places like the one I grew up in - the archetypal suburb Levittown where unenforceable covenants to sell only to "Caucasians" were in every deed:
De jure residential segregation by race was declared
unconstitutional almost a century ago, Buchanan v. Warley,
245 U. S. 60 (1917), but its vestiges remain today,
intertwined with the country’s economic and social life.
Some segregated housing patterns can be traced to conditions
that arose in the mid-20th century. Rapid urbanization,
concomitant with the rise of suburban developments
accessible by car, led many white families to leave the
inner cities. This often left minority families concentrated
in the center of the Nation’s cities. During this time,
various practices were followed, sometimes with governmental
support, to encourage and maintain the separation  of the races. 
Valerie Schneider offers a first look at today's decision. - gwc

Symposium: The sweetness of the status quo: The Court upholds over forty years of precedent : SCOTUSblog

by Valerie Schneider (Assistant Professor, Howard University School of Law.)

Today’s opinion in Texas Department of Housing and Community Affairs v. Inclusive Communities Project left intact over forty years of fair housing jurisprudence in which eleven circuits have assumed or decided that disparate impact claims are cognizable under the Fair Housing Act. Though, as both the Court and scholars have acknowledged, disparate impact claims are hard to win, disparate impact liability remains an important tool for combating discriminatory housing decisions where race-based intent is absent.

The Inclusive Communities Project brought suit over how the Texas Department of Housing and Community Affairs distributes tax credits for low-income housing. The Department’s policy, the group claimed, causes almost all affordable units to be built in racially segregated low-income areas, providing minorities with few opportunities to move to integrated or wealthier areas. Though the creators of the tax credit policy had no racial intent, according to the Inclusive Communities Project the results of the policy confined minorities to segregated areas.

Importantly, today’s opinion, like some lower court opinions, acknowledges that decision makers may need to consider race in some circumstances in order to ensure compliance with the Fair Housing Act. Towards the end of its decision, the Court notes that remedial orders in disparate impact cases should be designed, where possible, to eliminate racial disparities through race-neutral means. That said, to eliminate the disparate impact of some housing policies, the Court acknowledges, “race may be considered in certain circumstances.” Mere awareness of race in attempting to address the ills of racial segregation does not, according to the Court “doom that endeavor at the outset.”

This acknowledgement – that some degree of racial awareness may be required to remedy policies that have a discriminatory disparate impact based on race – puts to rest concerns that the Court would declare disparate impact analysis unconstitutional under the Fourteenth Amendment. It also reflects the basic reality of our day. Without analyzing current patterns of segregation, how can municipalities implement policies that avoid disparate impacts? Without acknowledging the racial impacts of decisions, how can courts implement remedies that have a realistic chance of addressing insidious disparate impacts where they exist? The Court recognized today that in order to effectuate the broad purpose of the Fair Housing Act, we cannot simply close our eyes to the racial impacts of seemingly race-neutral decisions.

In the area of housing, more, perhaps, than in any other area, governmentally sanctioned racism drives our current reality. Through federal loan policies, local discriminatory zoning practices, court-enforced racially restrictive covenants, and other methods, the United States government created ghettos and then confined African Americans to those areas. We constructed this country on a faulty foundation of racism, and the hard-won civil rights laws of the 1960s and 1970s, including the Fair Housing Act, were aimed at repairing the structure of our society. Today’s decision acknowledges that all of tools the Fair Housing Act provides are required to repair that foundation.

The decision, of course, is not a total win for fair housing advocates. It contains a number of warnings to would-be litigants and to lower courts. Kennedy notes, for example, that the type of facts presented by this case are disfavored because, according to Kennedy, such cases put courts in the uncomfortable position of second-guessing housing authorities’ policy decisions. Under the facts of the current case, Kennedy worries that the housing authority could be subject to disparate impact liability whether it chose to place its affordable units in wealthy suburbs or in the inner city. In contrast, suits targeting “zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without sufficient justification” Kennedy writes, reside at the “heartland” of disparate impact jurisprudence.

Plaintiffs Verdict in Gay Conversion Case - Ferguson v. Jonah

Jonah v. Ferguson was brought under the New Jersey Consumer Fraud Act for "gay conversion therapy". The Act provides for "ascertainable losses" - e.g. the money spent on the fraudulent treatment. Demonstrated losses are trebled, and counsel fees can be awarded in favor of the prevailing party. They are likely to greatly exceed the proven losses. - gwc

Verdict for Plaintiffs on almost all counts. All votes were unanimous (7-0)

The only no votes were (Referring to the July Verdict Form linked below):

Question 9 & 10 (Plaintiffs Michael Ferguson) as to defendants Arthur Goldberg and JONAH, Inc.; Yes as to Alan Downing.

Question 13 & 14 (Plaintiff Bella Levin) No as to Alan Downing; Yes as to defendants Arthur Goldberg and JONAH, Inc.


Ascertainable Losses:
Benji Unger (Question 4) $17,950
Chaim Levin (Question 8) $650
Michael Ferguson (Question 12): $1,050
Bella Levin (Question 16): $4,000
Jo Bruck (Question 20): $500

Jury Interrogatories
<p>Courtesy of <a href="http://equalitycasefiles.org/">Equality Case Files</a><p style="text-align:center !important;"><a href="http://files.eqcf.org/private-ferguson-v-jonah-trial-blank-jury-verdict-form/"><iframe src="http://files.eqcf.org/wp-content/uploads/2015/06/Ferguson-v-JONAH-Jury-Verdict-Form-final-6-24-15.pdf" border="0" width="776px" height="707px" /></a></iframe></p></p>

Jury Interrogatories
<p>Courtesy of <a href="http://equalitycasefiles.org/">Equality Case Files</a><p style="text-align:center !important;"><a href="http://files.eqcf.org/cases/ferguson-v-jonah-trial-jury-instructions/"><iframe src="http://files.eqcf.org/wp-content/uploads/2015/06/Ferguson-v-JONAH-Jury-Instructions-final.pdf" border="0" width="776px" height="707px" /></a></iframe></p></p>

Affordable Care Act Survives Supreme Court Scare - King V. Burwell

Prof. Julius Cohen taught Legislation in my first semester in law school.  Surprisingly the subject went into disfavor in later years, only to be revived recently.  We learned canons of construction.  Among the first was to construe a law not literally but so as to effectuate the legislators intent.  That rule had its origins in the seventeenth century when the Parliament raised the New Model Army and went to war against the Royalists, culminating in parliamentary supremacy with the Glorious Revolution of 1688.
Our Constitution sought to diffuse power, creating an often dysfunctional system.  In the 1930's the Supreme Court found in Congress's power to regulate commerce among the states the  power to overcome the small government view of federalism that James Madison and the much overrated Thomas Jefferson heralded.  Babbit-like resentment of the costs imposed by federal regulation have been a cornerstone of modern conservatism.  It has led them to embrace state's rights and a sharply limited view of the Supreme Court's powers.  But as conservative ideological preeminence grew in the past forty five years the denunciation of "judicial activism" became a ritual cry but not an operating principal.

When the Affordable Care Act became law conservatives saw an opportunity to undermine the commerce clause jurisprudence which is the jurisprudential foundation of the modern regulatory state.  In 2011 they came very close to a win in Sebelius v. National Federation of Independent Businesses.  Five justices, including the Chief Justice,concluded that the ACA was not authorized under the commerce clause.  "Obamacare" was saved by C.J. John Roberts opinion that the tax power authorized the insurance requirement.

When King v. Burwell was accepted by the Supreme Court the entire legislative structure was put at risk - over what appeared to be a drafting error.  But there is little more appealing to a lawyer than the words of a statute.  And here the words called for an "exchange established by the State" as the portal through which federal health insurance tax credit subsidies would be allocated.  The justices faced the question: what will prevail: the words of the provision or an expansive, saving construction of the entire Act, whose sprawling 2000 pages sent a general message that Congress's intent was to subsidize health insurance for low and moderate wage earners.   The dilemma for (it proved) Justices Roberts and Kennedy was that construction of the phrase in context meant a green light for a law the structure of which was unconstitutional, in their view.  Construing Congressional intent requires discipline of the judge because today's Congress is led by men who have voted dozens of times to repeal the entire ACA.
Such a choice is inevitably driven by the jurist's view of the desirable outcome.  But that view is a broad one.  There are competing canons of construction: the literal approach and the overall purpose approach.  A judge may consider  the impact of a decision, not just adherence to the canon of construction that one must be bound by the words of the statute.  Searching for implied intent is an invitation to abandon the words, and seek one's own preferred meaning.  In Justice Scalia's view that is what the majority has done. The ACA should be called "Scotuscare" now he cried.  Antonin Scalia certainly knows how to coin a word.  But his ability to govern is suspect.  The wisdom of the King V. Burwell majority's ruling in my view is that deference to legislation requires recognition of drafting failures, and an appreciation that a major regulatory measure like the ACA creates new classes of expectations - such as the expectation of millions that their health insurance will continue to be made affordable thanks to public largess.  - gwc

Supreme Court Allows Nationwide Health Care Subsidies - The New York Times
by Adam Liptak
The question in the case, King v. Burwell, No. 14-114, was what to make of a phrase in the law that seems to say the subsidies are available only to people buying insurance on “an exchange established by the state.”

Continue reading the main story


Supreme Court Decision on Health Care Subsidies

The Supreme Court ruled that President Obama’s health care law may provide nationwide tax subsidies to help poor and middle-class people buy health insurance.

Chief Justice Roberts wrote that the words must be understood as part of a larger statutory plan.
“In this instance,” he wrote, “the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he added. “If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”

Wednesday, June 24, 2015

How The South Lost The War But Won The Narrative

Statute of the treasonous General Robert E. Lee,
Monument Avenue, Richmond, VA
In For Cause and Comrade:  Why Men Fought and Died in the Civil War the great historian James M. McPherson explores letter of soldiers on both sides.  The title conveys the thesis.  It was, as Kevin Philips calls it, a cousins war.  People fought to defend what they believed in and for their comrades and tribesmen.  In that sense there was honor on both sides.  Former Sen. Jim Webb makes this point.
But the modern use of the Confederate battle flag has nothing to do with that.   It is part of the southern legend, the trail of heroes - the justification of the Jim Crow laws, of racial segregation, of white supremacy.  If any good comes from the Emanuel A.M.E. Church massacre it will be the beginning of the end of the lionization of the justly defeated cause. - gwc
How The South Lost The War But Won The Narrative
by Tony Horwitz

***With the Civil Rights struggle, scholars of the Civil War era gave new emphasis to race and slavery, and this trend has continued ever since. The evidence is overwhelming that Southern states seceded and fought to maintain slavery. Don’t believe me; believe the words of secessionists and Confederate leaders. Among the most often cited is Confederate vice-president Alexander Stephens who in 1861 declared the Founders “fundamentally wrong” in judging all humans equal. “Our new government is founded upon exactly the opposite idea; its cornerstone rests upon the great truth, that the negro is not equal to the white man; that slavery—the subordination to the superior race—is his natural and normal condition.”

The same view was expressed by the secessionist conventions in Southern states that published their reasons for leaving the Union. The authors sometimes couched their declarations in Constitutional arguments about sovereignty, but left no doubt about the state right at issue. Mississippians bluntly declared, “Our position is thoroughly identified with the institution of slavery—the greatest material interest of the world.” Texans cited a Northern “crusade” against the “beneficent and patriarchal system of African slavery,” and Texans’ conviction that bondage “should exist in all future time.”

There are countless such statements, scores of scholarly works documenting the cruelties of the slave economy and how much it was bound up with Southern life and politics. Most textbooks follow suit. Yet the prevailing popular view of the Civil War still reflects a strong Southern bias: that the Confederacy fought for vaguely defined “states’ rights,” and its battle flag isn’t intrinsically racist, it’s an anodyne emblem of Southern “heritage.”

I’m not very optimistic that the debate over South Carolina’s flag will bring a deeper reckoning. Furling the statehouse flag may bring temporary relief to South Carolinians, but what we truly need to bury is the gauzy fiction that the antebellum South was in any way benign, or that slavery and white supremacy weren’t the cornerstone of the Confederacy. Only then, perhaps, will we be able to say that the murdered in Charleston didn’t die in vain, and that the Lost Cause, at last, is well and truly lost.

11 myths about gun control

11 myths about the future of gun control, debunked after the Charleston shooting http://gu.com/p/4axgm?CMP=Share_AndroidApp_Blogger

BP Spill Costs Could Reach $68 billion


Saturday, June 20, 2015

Gun Control: The Public Health and Rational Basis Review

OTHERWISE: Gun Control: The Public Health and Rational Basis Review

The gun control battle must be fought over what constitutes proper regulation since compulsory disarmament has been taken off the menu in Heller. 

Thursday, June 18, 2015

Deepwater Horizon claimant assistance centers closing | New Orleans CityBusiness

Deepwater Horizon claimant assistance centers closing | New Orleans CityBusiness

The Deepwater Horizon claimant assistant centers, including the one on Veterans Boulevard in Metairie, will close Friday as the program moves into a different phase, administrator Patrick Juneau said today.
The centers were established to help with the intake of claims during the program’s first three years.
“Since the deadline to file claims was June 8, the program is now entering into a different phrase,” Juneau said. “We are now putting our resources into the review of claims. We knew as the program continued, we would come to the day when the claimant assistance centers are no longer needed for the intake of claims.”
Juneau said the toll-free help line is still operational. If claimants have questions about their claims, they can call toll-free, (866) 992-6174. For TTY assistance, call (888) 584-7624.
Claimants can also email their questions to questions@dhecc.com.

Read more: http://neworleanscitybusiness.com/blog/2015/06/17/deepwater-horizon-claimant-assistance-centers-closing/#ixzz3dQSr2ePd