Political Intrusion in the Judiciary: The Ninth Circuit vs. the President

Matt Schneider

The Constitution envisaged the judicial branch of the federal government as a nonpartisan arbiter of the legality of laws passed throughout the land, as a body that superseded the political winds of the time. However, with the advent of sharp political polarization in the last few decades, the judicial branch has often been dragged down through the partisan mud, with political actors seeing the court system more as a tool for their own policy goals. Under the current administration, the politicization of the judiciary has taken the form of an assault on the Ninth Circuit Court of Appeals.

On April 26th, the President told the Washington Examiner that his political opponents were using the court for “judge shopping” and that “what’s going on in the 9th Circuit is a shame” [1]. Additionally, a day earlier, the White House Chief of Staff Reince Priebus claimed that the court was “going bananas” [2]. Finally, Senator Ted Cruz has called the actions of the Court “lawless,” while also stating that the breakup of the court was “a possibility” [3, 4].

What events have led to such an all-out assault by the administration and its allies on a circuit court of appeals? Well, mainly, the court has served as the most significant impediment to the rollout of President Trump’s agenda in recent months. In particular, the court has blocked two of the President’s most controversial campaign promises: The court ruled as unconstitutional both the ban on travelers from the Middle East—seen by the Court as running “contrary to the fundamental structure of our constitutional democracy” in February—and the attempt to defund so-called “sanctuary cities,” by attaching immigration-related language to federal grants in April [5,6].

The court, which covers seven states in the West, Hawaii, Alaska, as well as Guam and the Northern Mariana Islands, handles over 12,000 cases at the appellate level each year [7,8]. The court has been seen by many in conservative circles as an example of judicial activism run amok and a way for left-leaning groups to win an appeal in a federal court [9]. Republicans have also pointed to the fact that the court has a 79% rate of its decisions being overturned at the Supreme Court as evidence of its straying from the laws of the land [10]. Additionally, other Republicans have argued that the court, which sees one-third of all federal appeals, is too crammed with litigation to rule effectively and efficiently [11,12].

Many of these arguments fall short when considered within context. First, there is no evidence that the Ninth Circuit has struggled to handle the amount of cases it is sent. Indeed, the Court has actually instituted several mechanisms by which to systematically screen cases for consideration and devote resources and judges to consider cases [13]. Second, the Supreme Court reverses the opinions of lower courts at a rate of 70%, which is not that much lower than the rate for the Ninth Circuit [14]. Finally, and perhaps most importantly to those crying for change in the Ninth Circuit fail to realize that breaking up the Court will probably not have much of an effect on the types of rulings passed down by the Ninth Circuit. The judges will still serve on the bench either in the Ninth Circuit or in another circuit court, and the current majority of judges appointed by Democratic presidents (18 of the 25 at the Ninth Circuit) will prevent any ideological shift [15,16]. Instead, any restructuring might lead to the production of two liberal courts instead of just one [17]. Given these circumstances, it seems that most of the ire with the court derives from its ability and willingness to challenge the policy priorities of the administration.

So, what legal means do the President and his allies in Congress have to redress some of their grievances with the Ninth Circuit? Certainly, an executive action signed unilaterally by the President will not suffice; indeed, Congressional approval of legislation aimed at restructuring the Ninth Circuit is needed for any such change to be implemented [18]. However, despite Republican majorities in both houses of Congress, conservatives will still need to face a Democratic caucus more than willing to use its filibuster to oppose such a partisan move. However, despite the odds against such an action, four Republican bills introduced to the House and Senate in recent months have been proposed, some of which seek to establish a 12th Circuit Court that that does not include California [19]. For real change to occur, the President would need to appoint more conservative judges, a possibility only if the Ninth Circuit is expanded to include more judges [20].

Even if the Republican White House and Congress could get past these obstacles, it would be unclear if the American people could support such a measure. History tells us no. Such a blatant attempt to change the judicial landscape to better favor a President’s partisan ends would incur rabid opposition from the public, as it has in the past. The most memorable example of such judge cherry-picking was President Franklin Delano Roosevelt’s court-packing plan in 1937, in which he sought to reshape the Supreme Court so that he could appoint more judges sympathetic to his New Deal legislation. That endeavor failed because of the obviousness of its partisan nature, and it would not be surprising if any attempt to change the Ninth Circuit Court would fail for the same reason.

 

Works Cited

[1] Westwood, Sarah. “Exclusive Interview: Trump ‘Absolutely’ Looking at Breaking up 9th Circuit.” Washington Examiner. N.p., 26 Apr. 2017. Web. 30 Apr. 2017. <http://www.washingtonexaminer.com/trump-absolutely-looking-at-breaking-up-9th-circuit-court-of-appeals/article/2621379&gt;.

[2] Fabian, Jordan. “Priebus Calls 9th Circuit ‘Bananas,’ Says Administration Will Prevail on Sanctuary Cities.” The Hill. N.p., 26 Apr. 2017. Web. 30 Apr. 2017. <http://thehill.com/homenews/administration/330572-priebus-calls-ninth-circuit-bananas-warns-admin-will-prevail-on&gt;.

[3] “Cruz: Court’s Travel Ban Decision Lawless.” CNN. Cable News Network, 23 Feb. 2017. Web. 30 Apr. 2017. <http://www.cnn.com/videos/politics/2017/02/23/ted-cruz-cpac-judicial-activism-immigration.cnn&gt;.

[4] Hensch, Mark. “Cruz: Breaking up 9th Circuit Court ‘a Possibility’.” The Hill. N.p., 27 Apr. 2017. Web. 30 Apr. 2017. <http://thehill.com/homenews/senate/330935-cruz-breaking-9th-circuit-court-a-possibility&gt;.

[5] Zapotosky, Matt. “Federal Appeals Court Rules 3 to 0 against Trump on Travel Ban.” The Washington Post. WP Company, 09 Feb. 2017. Web. 30 Apr. 2017. <https://www.washingtonpost.com/world/national-security/federal-appeals-court-maintains-suspension-of-trumps-immigration-order/2017/02/09/e8526e70-ed47-11e6-9662-6eedf1627882_story.html?utm_term=.dd6cd0fd61f6&gt;.

[6] Phillips, Amber. “California Is in a War with Trump on ‘Sanctuary Cities.’ It Just Won Its First Major Battle.” The Washington Post. WP Company, 25 Apr. 2017. Web. 30 Apr. 2017. <https://www.washingtonpost.com/news/the-fix/wp/2017/04/25/california-is-in-a-war-with-trump-on-sanctuary-cities-and-it-just-won-its-first-major-battle/?utm_term=.e3116cc7da4b&gt;.

[7] “What Is the Ninth Circuit?” Ninth Circuit Court of Appeals. Web. 30 Apr. 2017. <https://www.ca9.uscourts.gov/judicial_council/what_is_the_ninth_circuit.php&gt;.

[8] Feuer, Ben. “The Republican Case for Breaking up the Notoriously Liberal 9th Circuit Makes No Sense.” Los Angeles Times. Los Angeles Times, 19 Mar. 2017. Web. 30 Apr. 2017. <http://www.latimes.com/opinion/op-ed/la-oe-feuer-9th-circuit-20170319-story.html&gt;.

[9] Hensch, Mark. “Cruz: Breaking up 9th Circuit Court ‘a Possibility’.”

[10] Feuer, Ben. “The Republican Case for Breaking up the Notoriously Liberal 9th Circuit Makes No Sense.”

[11] Wheeler, Lydia. “Trump’s Hands Are Tied on 9th Circuit.” The Hill. N.p., 28 Apr. 2017. Web. 30 Apr. 2017. <http://thehill.com/homenews/administration/331108-trumps-hands-are-tied-on-9th-circuit&gt;.

[12] Phillips, Amber. “Can Trump ‘absolutely’ Break up a Federal Court That’s Standing in His Way?” The Washington Post. WP Company, 28 Apr. 2017. Web. 30 Apr. 2017. <https://www.washingtonpost.com/news/the-fix/wp/2017/04/28/can-trump-absolutely-break-up-a-federal-court-thats-standing-in-his-way/?utm_term=.4f82c8fa53ad&gt;.

[13] Feuer, Ben. “The Republican Case for Breaking up the Notoriously Liberal 9th Circuit Makes No Sense.”

[14] Ibid.

[15] Ibid.

[16] Westwood, Sarah. “Exclusive Interview: Trump ‘Absolutely’ Looking at Breaking up 9th Circuit.”

[17] Wheeler, Lydia. “Trump’s Hands Are Tied on 9th Circuit.”

[18] Phillips, Amber. “Can Trump ‘absolutely’ Break up a Federal Court That’s Standing in His Way?”

[19] Ibid.

[20] Phillips, Amber. “Can Trump ‘absolutely’ Break up a Federal Court That’s Standing in His Way?”

 

Failures of the Financial CHOICE Act of 2016

Jee Young Kim 

Introduced in September 2016 by House Financial Services Committee Chair Rep. Jeb Hensarling (R-TX5), the Financial CHOICE Act, H.R. 5983 (FCA), seeks to deregulate the country’s financial sector. It is seen as the Republican response to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). Signed in 2010, Dodd-Frank introduced new regulations in order to prevent another financial crisis. Among other provisions, Dodd-Frank created the Consumer Financial Protection Bureau (CFPB) as well as the Financial Stability Oversight Council (FSOC). The primary role of the CFPB is to create and enforce consumer financial regulations on both banks and non-bank institutions. It seeks to increase transparency and fairness for financial products and services, with emphasis on protecting consumers.[1] The FSOC identifies the economy’s level of financial risk and has the ability to oversee individual institutions that may be engaging in excessively risky behavior.[2] Through the establishment of such agencies, along with other regulations – such as increased required reserves for banks – Dodd-Frank has prevented financial institutions from enjoying the same level of freedom they had before the 2007/8 financial crisis.

The FCA – which currently remains as a bill – proposes to amend several provisions of Dodd-Frank. For example, it seeks to repeal the “Volcker Rule,” which prohibits banks from proprietary trading with risky assets and from sustaining certain relationships with investment funds, such as hedge funds or private equity funds.[3] In this way, the FCA aims to eliminate the safeguards against the risky behavior that contributed to the financial crisis. The Volcker Rule is only one of many Dodd-Frank regulations that the FCA is targeting.[4]

Many supporters of the bill argue that the FCA will correct Dodd-Frank, which they see as excessively restrictive on the financial sector. According to the House Financial Services Committee, Dodd-Frank “directs federal regulators to burden job creators and the economy with more than 400 new rules and mandates.”[5] Supporters also point out that the Congressional Budget Office estimates Dodd-Frank to take $27 million from the economy.[6]

The FCA, however, should not be passed. One major reason is that it helps to create a dangerously speculative financial environment. As mentioned above, Dodd-Frank created the CFPB, which is a necessary agency that protects the general public. Although it has been subject to some controversy because of its relative independence from the congressional appropriations process (it gets much of its funding from the Federal Reserve’s revenues), this financial autonomy most likely is helpful rather than harmful for consumers. Instead of worrying about politics in Congress and appeasing the lawmakers that could potentially control its budget, size and even its mission, the CFPB can more effectively focus on its main objective, which is to make sure U.S. consumers are not taken advantage of. Opponents argue that the transparency of the CPFB is an issue given the nature of its funding. It is important to note, however, that measures that ensure the agency’s transparency and accountability do exist. The CFPB director’s biannual testimony before Congress and the cap on the CFPB’s non-appropriated funding are some examples. The FCA nonetheless aims to restrict the authority of the CFPB. For one, it wants to subject the agency to the traditional appropriations process. It also seeks to repeal the agency’s power to declare certain abusive acts as unlawful and proposes to increase the threshold for depositories that come under the CFPB’s supervision from $10 billion to $50 billion.[7] Curtailing the influence of the CFPB could lead to dangerous outcomes. The general public will receive less protection, and financial institutions will have less resistance when engaging in the types of behavior that we all saw could lead to disastrous economic outcomes on a global scale. The agency has already returned almost $12 billion of relief to 29 million consumers.[8] It has also played an integral role in holding Wells Fargo accountable for its illegal practice of opening unauthorized accounts.[9] The CFPB is an important agency that has so far shown that it can do much good for consumers. Therefore, limiting its authority is not a wise move to make.

The House Financial Services Committee criticizes Dodd-Frank by saying that it “reaches far beyond Wall Street and does not address the real causes of the crisis [and] continues the bailouts by enshrining “too big to fail” into law, placing taxpayers at risk for trillions of dollars of future bailouts.”[10] The House Financial Services Committee argues the FCA is needed because Dodd-Frank does not resolve the real issues of the economy. However, what exactly does the FCA plan to do with these problems? Its solution to taxpayer-funded bailouts is to prevent the FSOC from designating certain institutions as “too big to fail.” This designation is what places such institutions under additional regulations. Simply prohibiting the designation does not automatically lead to the end of government bailouts. Such public expenditure may nonetheless be necessary if an institution’s bankruptcy puts the health of the economy at risk. By placing such institutions under more stringent regulations, however, FSOC acts preemptively to decrease the chances of those bankruptcies. But the FCA instead plans to remove such designations. Such a change will only allow these institutions to more easily engage in risky behavior, which makes bankruptcies and the consequent bailouts all the more likely. Supporters of the FCA base their arguments on the need to address the real issues. Yet, their proposed resolution is not the answer to those problems.

Dodd-Frank is not perfect, but the FCA is not the solution. Despite the bill’s shortcomings, Jeb Hensarling has announced that a new version is scheduled to be released soon.[11] Considering the Republican-led Congress as well as Trump’s presidency, the passage of some version of the bill seems highly likely.

 

[1] “Consumer Financial Protection Bureau” Federal Register. https://www.federalregister.gov/agencies/consumer-financial-protection-bureau.

[2] “H.R. 5983 (114th): Financial CHOICE Act of 2016” govtrack. https://www.govtrack.us/congress/bills/114/hr5983/summary#oursummary.

[3] “The Financial CHOICE Act: Policy Issues” Congressional Research Service. https://fas.org/sgp/crs/misc/R44631.pdf.

[4] “H.R.5983 – Financial CHOICE Act of 2016” Congress.gov. https://www.congress.gov/bill/114th-congress/house-bill/5983.

[5] “Oversight of Dodd-Frank Act Implementation” Financial Services Committee. http://financialservices.house.gov/dodd-frank/.

[6] “H.R. 5983 (114th): Financial CHOICE Act of 2016” govtrack. https://www.govtrack.us/congress/bills/114/hr5983/summary#oursummary.

[7] “The Financial CHOICE Act: Policy Issues” Congressional Research Service. https://fas.org/sgp/crs/misc/R44631.pdf.

[8] “Consumer Financial Protection Bureau: By the numbers” Consumer Financial Protection Bureau. https://files.consumerfinance.gov/f/documents/201701_cfpb_CFPB-By-the-Numbers-Factsheet.pdf.

[9] “Consumer Financial Protection Bureau Fines Wells Fargo $100 Million for Widespread Illegal Practice of Secretly Opening Unauthorized Accounts” Consumer Financial Protection Bureau. https://www.consumerfinance.gov/about-us/newsroom/consumer-financial-protection-bureau-fines-wells-fargo-100-million-widespread-illegal-practice-secretly-opening-unauthorized-accounts/.

[10] “Oversight of Dodd-Frank Act Implementation” Financial Services Committee. http://financialservices.house.gov/dodd-frank/.

[11] “Revised Financial CHOICE Act to Come Soon” DSnews. http://www.dsnews.com/daily-dose/03-23-2017/revised-financial-choice-act-come-soon.

Conflict of Interest Laws: Business Ties Under the New Administration

Ava Kazerouni SFS 2019

Upon confirmation of his winning the election, questions have arisen regarding Trump’s relations to his businesses and how it will affect his role as president. In the past, most presidents were career politicians, thus the matter of maintaining business ties have been of little importance. Presidents who did have businesses in the past, such as Carter and George W. Bush, made sure to separate themselves from those businesses upon election [1].

Trump, however is much more heavily invested in these businesses, as they are the basis of his career. Though it would seem likely that there would be laws regulating government officials, especially the president, from maintaining business ties once acting as commander in chief, there is actually little regulation in this regard [2]. There are regulations for the legislative and judicial branches, however, laws regarding the president are much more vague and are not as fully developed [3].

Though he has handed the reigns of the Trump Organization to his children, he is still able to exert influence over the organization, and he has given those same children considerable influence in the White House. However, because most of the organization is dealing with domestic business, there is no regulation written in law to prohibit Trump from having ties to it [4]. The absence of these regulatory laws could be because Trump’s business experience is unprecedented for a United States president, but the oversight might be reconsidered in the changing political climate and the recent election. A president being able to exert influence over personal business matters can become dangerous, as it will undoubtedly influence political and economic decisions.

The only possible legal prohibition regarding Trump’s businesses would be due to his foreign investments. Section One, Article Nine in the Constitution, called the Emoluments Clause, has received attention recently by groups hoping to prevent Trump from maintaining his business connections during his presidency [5]. The clause states, “no Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Thus presidents are not permitted to receive any foreign gifts [6].

The group that is suing Trump is claiming that these “gifts” can be interpreted as a payment for an exchange of services, and not just actual presents from a foreign government [7]. If the court system agrees with them, it will restrict Trump’s many businesses from providing services to foreign governments, something that it has done repeatedly. Trump’s lawyers are claiming that on the contrary, a gift is different from a payment for a service provided by Trump’s company, and Trump himself has denied any illegal actions by his company [8].

Whether this lawsuit will win or not is yet to be determined, however, it is clear that the nation is entering a new political climate. Due to this unprecedented election, the nation is attempting to reconcile its thoughts on a president with such a different background than what has come to be expected since the founding of the country. This attempt is manifesting itself in a push for increased regulation on an executive who seems determined to increase his own powers.

[1] Julie Bykowicz, “Why Conflict of Interest Laws Apply Differently to the President,” PBS News Hour (November 30, 2016), http://www.pbs.org/newshour/rundown/conflict-interest-rules-apply-differently-president/

[2] Bykowicz

[3] Bykowicz

[4] British Broadcasting Company, “Donald Trump: A List of Potential Conflicts of Interest,” (January 10, 2017). http://www.bbc.com/news/world-us-canada-38069298

[5] James Dennin, “One Clause in the US Constitution Could Put Trump’s Foreign Business Connections in Jeopardy,” Business Insider (November 22, 2016). http://www.businessinsider.com/donald-trump-business-connections-us-constitution-2016-11

[6] Fahrenthold, David and Jonathan O’Connell, “What is the ‘Emoluments Clause’? Does it Apply to President Trump?” The Washington Post (January 23, 2017).

[7] Fahrenthold, David and Jonathan O’Connell

[8] Fahrenthold, David and Jonathan O’Connell

The practice of appointing any attorney at the state bar as a public defender

Rachel Linton SFS 2019

The Bill of Rights gives every American accused of a crime “the right to an attorney.” What that means today, as a result of 1963 Supreme Court decision Gideon v. Wainwright, is that anyone accused of a crime who cannot afford an attorney can have one appointed to them by the court.

In many jurisdictions, however, that “can” is called into question—because there are simply too many cases and not enough attorneys. As far back as 2007, 73% of county public defenders offices exceeded the maximum recommended number of cases. In 2013, then-Attorney General Eric Holder admitted that the public defense system was in “a state of crisis.”[1]

What does this mean for the accused?

In New Orleans, that means that when a case is called, a lawyer from the public defender’s office simply reports, “Your honor, we do not have a lawyer for this person at this time.” Last January, the New Orleans Public Defender’s office had such a large backlog that they stopped taking cases.[2]

This left many poor individuals without attorneys, a situation for which the state of Louisiana does have a solution. Unfortunately, this solution can cause as many problems as it solves. Any attorney at the state bar in Louisiana can be assigned a pro bono case of public defense. This can occur regardless of whether they’re still a practicing attorney—or whether they’ve ever practiced criminal law. In one case covered by NPR’s This American Life, an accident and injury lawyer who hadn’t practiced criminal law in thirty years was assigned a criminal case.[3]

Louisiana is far from the only state struggling to meet the demands for public defense. In 2014, a study determined that Missouri needed an additional 270 public defenders to adequately serve the needs of the population. By late 2016, every public defender in Missouri had more than a hundred cases at any time—and sometimes more than 200. In August of 2016, public defender Michael Barrett raised the profile of the issue by attempting to assign a case to Missouri Governor Jay Nixon. Nixon had previously vetoed caseload caps and blocked funding for public defense.[4]

By September of last year, the American Civil Liberties Union (ACLU) had filed lawsuits in Louisiana, Michigan, California, Washington, and Montana alleging that the poor were being offered inadequate legal defense.[5] With attorneys in Washington state spending less than an hour per case due to their workload, “inadequate” seems to be entirely too mild a term.1

Professor Ellen Yaroshefsky said the New Orleans criminal justice system was a “processing system” rather than a “justice system” as a result of the public defense crisis2—and New Orleans is far from alone. Without dramatic overhauls, “criminal justice” will remain a misnomer in many states—especially for the poor.

[1] Van Brunt, Alexa. “Poor people rely on public defenders who are too overworked to defend them.” The Guardian, 17 June 2015.

[2] Bunton, Derwyn. “When the Public Defender Says, ‘I Can’t Help’.” New York Times, 19 Feb. 2016.

[3] Zax, David. “This American Life.” 595: Deep End of the Pool. If You Cannot Afford an Attorney, Some Random Dude Will Be Appointed to You. 26 Aug. 2016. Web.   8 March 2017.

[4] Domonoske, Camila. “Overworked And Underfunded, Mo. Public Defender Office Assigns Case — To The Governor.” NPR, 4 Aug. 2016.

[5] Greenblatt, Alan. “Overworked and Underfunded, Public Defenders See Some Light.” Governing, 20 Sep. 2016.

Equally Protected, but Unequally Identified: State Voter ID Laws and their Constitutionality

Gaia Mattiace   COL 2018

In recent months issues of voter ID laws and their constitutionality have become ever more prevalent and controversial. However, laws requiring voters to bring a form of identification in order to cast their ballot have been in place since the 1950s, when South Carolina became the first state to require voter IDs.[1] In recent years the topic has become highly politicized with many Republicans purporting that voter ID Laws protect and preserve the integrity of the electoral process and Democrats, on average, claiming that these laws put unnecessary restrictions on legal voters and make the system less democratic. The constitutionality of these laws remains up for debate, as recent developments in court cases across the country have shown. Throughout the years the court has remained starkly divided as to the extent to which states can restrict voters. The coming years promise to bring even greater dissent in light of the political climate and recent rulings at the district and circuit levels. It is therefore instrumental for us to understand the legal background that surrounds the current political debate.

While Article I, Section 4 of the Constitution provides states with the right to decide “the times, places and manner of holding elections,” the Fourteenth and Fifteenth Amendments deny states the ability to restrict their voters’ rights.[2] The Fourteenth Amendment dictates that no state can “deny to any person within its jurisdiction the equal protection of the laws,”[3] and the Fifteenth Amendment affirms that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”[4] The Voting Rights Act of 1965 (VRA) banned literacy tests and put in place special provisions to protect against voter disenfranchisement in regions of the country where discrimination had manifested itself to the highest degree.[5] While the VRA did not deal with the problem of poll taxes, Harper v. Virginia Bd. of Elections (1966) ruled this voting restriction to be unconstitutional. In Harper the court ruled that, “A State violates the Equal Protection Clause of the Fourteenth Amendment, whenever it makes the affluence of the voter or payment of any fee an electoral standard.”[6] Both these sections of the constitution and rulings such as Harper set the stage for the complex and tumultuous history of voter ID laws.

So what are voter ID laws and why do they matter? Currently 32 states have voter ID laws, 17 of those states require a photo ID, rather than deeming some other form of identification acceptable. Seven states are “strict” photo ID states, which means voters must take additional steps if they lack a photo ID on Election Day. These voters cannot simply cast a provisional ballot that is then verified by electoral officials. Those in favor of voter ID laws argue that they are useful in preventing voter impersonation, while those opposed see it as an unnecessary burden on voters, as there is little evidence of this kind of fraud occurring frequently.[7] Why do voter ID laws pose a constitutional question? The equal protection clause requires that no state regulation weigh differentially on citizens of the state. Requiring photo identification can pose a hurdle for those who are low income, sick, disabled, cannot afford the travel and time necessary to obtain a photo ID, or those with religious objections to having their pictures on their identification card. The question then is: do voter ID laws pose a significant burden on these individuals by unequally disadvantaging or disenfranchising them?

In 2006 Indiana became the first state to implement a strict photo ID law. The law precluded individuals without a government issued photo-ID from voting.[8] The constitutionality of such strict photo-ID laws was brought into question in Crawford v. Marion County Election Board (2008).[9] The case of Crawford challenged the statute on its face, meaning that they claimed that the statute, as it stood, was unconstitutional in every possible application, and therefore had to be struck down. Using the standards set forth in the case of Harper, Judge Stevens, writing for the majority, ruled that the requirement of a photo ID did not constitute an “invidious” restriction “unrelated to voter qualifications.” The ruling, however, did not set a universal rule on voter ID laws, since it did not set a line or standard. “Rather than applying any ‘litmus test’ that would neatly separate valid from invalid restrictions,” Stevens and the majority opinion stated that they preferred to “evaluate the interests put forward by the State as justifications for the burden imposed by its rule, and then make the ‘hard judgment’ that our adversary system demands” on a case-by-case basis.[10] This notable ambiguity in the final judgment left the question of whether and to what extent states can enforce voter ID laws up for debate and has led to the uncertainty and controversy that perseveres today. Ultimately, in this particular case, the majority ruled that Indiana had an imperative to institute the requirement in order to foster election modernization, prevent voter fraud, and safeguard voter confidence. Two different dissents were written, one by Justice Souter, who was joined by Justice Ginsburg and the other by Justice Breyer.[11] Souter’s dissent cited Burdick v. Takushi (1992) in saying that, “a State may not burden the right to vote merely by invoking abstract interest,” as there was no concrete evidence of type of voter fraud the law was intended to prevent. [12]

We see two different standards being established and cited: Stevens, along with the majority, claimed that, as long as the law serves a purpose relevant to the state’s interests of maintaining fair elections and is not “invidious” in setting its boundaries, it is valid. Souter on the other hand, argued that states cannot set qualifications that set additional burdens unless the issue is something that is tangible and visible. [13] Souter also emphasized the case-by-case basis required in consideration of such cases, saying, “We have avoided pre-set levels of scrutiny in favor of a sliding-scale balancing analysis.” [14] According to the precedent set in Burdick, this sliding scale depends on the significance of the burden the regulation places on people’s First and Fourteenth Amendment rights and the number of people affected. Souter went on to enumerate the various burdens voters had to undergo to obtain a voter ID including: travel costs and fees, the challenge of obtaining a birth certificate if one lacks one, and the problem of having to sign an affidavit within 10 days for one’s provisional vote to count in the absence of a photo ID. In addition, Souter pointed to the District Court’s approximation that 43,000 Indiana voters lacked photo IDs at the time, as evidence of the photo ID law’s widespread impact, particularly on poor voters. [15] Ultimately, the prerogative of preventing voter fraud was valued as more pressing than the burden placed on Indiana voters by the requirement, therefore the law was left in place.

More recently, Shelby County v. Holder (2013) seemed to crack the door open even further for voter ID laws throughout the country. Section 5 of the Voting Rights Act of 1965 requires certain districts, which are determined by using a formula laid out in Section 4(b) from enacting changes to their election law without authorization from the Attorney General or the Washington D.C. District Court, to ensure that they did not impact any individual’s ability to vote, based on his or her race or minority status. In Shelby County the Supreme Court found that Section 4 of the Voting Rights Act was unconstitutional, on the grounds that the formula was outdated and unjustified due to current conditions. Justice Ginsburg dissented, arguing that the Fourteenth and Fifteenth Amendments provide Congress with the power to enact provisions such as those held in the Voting Rights Act.[16] Without this pre-clearance requirement, several states, previously affected by Section 4, moved to change their voting laws and adopted stricter ID requirements.[17] Although the Shelby County v. Holder decision paved the way for stricter voter ID laws, it did not weigh in on the constitutionality of such laws, leaving us still with the question of whether setting these requirements is a valid way for states to exercise their power, or if it sets states up for voter disenfranchisement akin to the poll tax or the literacy test.

Although these Supreme Court decisions seem to have loosened the restrictions on states in terms of voter ID laws, there has been a recent flurry of activity by district courts that has tightened the reigns on voter ID laws, ensuring that they not be excessively restrictive. A Texas 2011 voter ID law required that voters bring only certain acceptable forms of identification to the polls, such as a Texas Driver’s license, a U.S. military identification card, a U.S. citizenship certificate with a photo, a U.S. passport, a license to carry a concealed handgun or an Election Identification Certificate (which requires forms of ID including a driver’s license, or a birth certificate for an individual to obtain it). Without one of these proofs of identification, a voter could cast a provisional ballot, but he or she would have to bring the appropriate identification within six days.[18] This law has widely been considered one of the nation’s strictest voter ID laws. Section 5 of the VRA initially blocked the law, but subsequent to Shelby County v. Holder, Texas began enforcing the law. In 2014, the District Court of Corpus Christi struck down the law on the basis that it disproportionately affected African American and Latino voters. The Texas 5th Circuit Court of Appeals considered the constitutionality of Texas’ voter ID laws in Veasey v. Abbott (2015) and affirmed part of the district court’s ruling. The majority wrote, “The record shows that drafters and proponents of SB 14 were aware of the likely disproportionate effect of the law on minorities, and that they nonetheless passed the bill without adopting a number of proposed ameliorative measures that might have lessened this impact.”[19] However, the circuit court rejected the claim that the law imposed an unconstitutional poll tax. [20] Therefore, the law was found in violation of the Fifteenth Amendment, but not the Equal Protection Clause of the Fourteenth Amendment. On January 23, 2017 The Supreme Court declined to hear the appeal from Texas in order to reinstate its strict voter ID law. Chief Justice Roberts issued a statement explaining that the Supreme Court might consider subsequent cases regarding the issue of voter ID laws after lower courts have made more considerations on the topic.[21]

After the ruling in Shelby County v. Holder North Carolina enacted several changes to its election laws including a strict photo ID law, the elimination of same-day voter registration, reduction of the number of early voting days, and a cessation of pre-registration for 16 and 17 year olds in the state. The law was contested both at the district level and at the 4th Circuit court of appeals, which unanimously struck down the restrictive laws. In the case of North Carolina State Conference of the NAACP v. McCrory (2016) the majority wrote, “The new provisions target African-Americans with almost surgical precision… and, in fact, impose cures for problems that did not exist. Thus, the asserted justifications cannot and do not conceal the state’s true motivation.”[22] Again ruling on the state’s violation of the 15th Amendment.

We can see the history of voter ID law cases forming a trend, particularly in regards to “strict” voter ID laws and voter ID laws that require photo identification. Judges have been hesitant, and even reticent, to say that requiring an ID is a violation of the equal protection clause of the Fourteenth Amendment, or that in other words it is like a poll tax or a literacy test, preventing voters of certain socioeconomic strata from voting. However, judges have been ready to recognize instances in which these laws challenge their intent by their implementation, or cases in which they make elections more unfair and less democratic (instead of ensuring the fairness and authenticity of elections as voter ID laws claim to do) by disenfranchising minority voters, in accordance with the requirements established in the Fifteenth Amendment and the VRA. The question remains if more restrictive laws that do not result in the disproportionate disenfranchisement of minorities in particular, but, on average, create hurdles for voters of lower socioeconomic backgrounds, will become a problem to be addressed by the courts. Furthermore, within the sphere of a new political landscape, we may see the courts reconsidering cases where voter ID laws were struck down, particularly in light of claims of widespread voter fraud coming from the executive branch. It is essential then to bear in mind not only court precedent and the real life consequences that certain voter ID laws can have on voter turnout, but also our constitutional and legal foundations, and how they have set the stage for a more democratic and participative union.

[1] “Voter ID History .” National Conference of State Legislatures . N.p., 18 Apr. 2016. Web. <http://www.ncsl.org/research/elections-and-campaigns/voter-id-history.aspx&gt;.

[2] U.S. Constitution. Art. I Sec. 4.

[3] U.S. Constitution. Amend. XIV.

[4] U.S. Constitution. Amend. XV.

[5] “History Of Federal Voting Rights Laws.” History Of Federal Voting Rights Laws | CRT | Department of Justice. N.p., 8 Aug. 2015. Web. <https://www.justice.gov/crt/history-federal-voting-rights-laws&gt;.

[6] Harper v. Virginia Board of Elections. 383 U.S. 663. Supreme Court of the United States. 1966. Supreme Court Collection. Legal Information Inst., Cornell U. Law School, n.d. Web. 16 Jan. 2012.

[7] “Voter ID Identification Requirements | Voter ID Laws .” National Conference of State Legislatures . N.p., 25 Sep. 2016. Web. <http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx&gt;.

[8] Lee, Steven, and Sarah Smith. “Everything You’ve Ever Wanted to Know About Voter ID Laws.” ProPublica. N.p., 9 Mar. 2016. Web.

[9] Greenhouse, Linda. “In a 6-to-3 Vote, Justices Uphold a Voter ID Law.” The New York Times. N.p., 29 Apr. 2008. Web.

[10] Crawford v. Marion Country Election Bd. 553 U.S. 181. Supreme Court of the United States. 2008. Supreme Court Collection. Legal Information Inst., Cornell U. Law School, n.d. Web.

[11] Crawford v. Marion Country Election Bd. 553 U.S. 181. Supreme Court of the United States. 2008.

[12] Crawford v. Marion Country Election Bd. 553 U.S. 181. Supreme Court of the United States. 2008.

[13] Crawford v. Marion Country Election Bd. 553 U.S. 181. Supreme Court of the United States. 2008.

[14] Crawford v. Marion Country Election Bd. 553 U.S. 181. Supreme Court of the United States. 2008.

[15] Crawford v. Marion Country Election Bd. 553 U.S. 181. Supreme Court of the United States. 2008.

[16] “Shelby County v. Holder.” Oyez, https://www.oyez.org/cases/2012/12-96.

[17] Fuller, Jaime. “How has Voting Changed since Shelby County v. Holder?” The Washington Post. N.p., 7 Jul. 2014. Web.

[18]Veasey v. Abott. 796 F.3d 487. 5th Cir. 2015.

[19] Ford, Matt. “A Victory for Voting Rights in Texas,” The Atlantic. N.p., 20 Jul. 2016. Web.

[20] Ford, Matt. “A Victory for Voting Rights in Texas.” The Atlantic.

[21] Liptak, Adam. “Supreme Court Won’t Hear Appeal from Texas on Voter ID Case.” The New York Times. N.p., 23 Jan. 2017. Web.

[22] Walsh, Mark. “Appeals courts are dismantling stricter voter ID laws.” ABA Journal. N.p., 01 Nov. 2016. Web.

Antitrust Laws and Blocked Mergers: Private Healthcare Amid the Obamacare Repeal

Kelsey Yurek     COL 2019

On January 23, 2017, the U.S. District Court blocked the merger of Aetna and Humana, two well-known healthcare companies. [1] Both companies provide Medicare options across the country and work in conjunction with the federal government to administer these services through private corporations. The Court ultimately ruled that the acquisition would be unlawful and violate federal antitrust laws.

Today, three federal antitrust laws make up the core parameters which generally determine unlawful mergers and business practices: the Sherman Act (1890), the Federal Trade Commission Act (1914), and the Clayton Act (1914). [2] Overall, these laws aim to “protect the process of competition for the benefit of consumers, making sure there are strong incentives for business to operate efficiently, keep prices down, and keep quality up.” [3]

From the Court’s perspective, this merger would have prevented consumers from having the ability to obtain plans such as Medicare Advantage. Medicare Advantage typically provides insurance to working families and individuals as well as seniors. [4] By blocking the merger, the Court sought to either maintained or increased the competition between Aetna and Humana and achieved that which the antitrust laws aim to do—keep quality up and prices down.

The trial proceeded in relatively quick succession from the initial complaint. The Justice Department, the District of Columbia, and eight states first sued to stop the merger in July 2016. [5] The following month, Aetna announced that it would pull its services from most states where it was serving individuals through Obamacare. [6] Prior to the lawsuit, Aetna had originally intended to further expand its services to additional states once acquiring Humana. Now, however, it remains unclear whether or not the decision will ultimately impact the direction they take.

With the current repeal of Obamacare underway, this raises the question of whether additional citizens could potentially lose healthcare due to the blocked merger. It seems as if this loss is precisely that which the government looked to avoid. The decision will “save customers and taxpayers up to $500 million per year” and avoid the divestment of “290,000 Medicare Advantage customers to Molina Healthcare.” [7] Despite this, if Aetna does indeed pull its services from all but 10 states due to the litigation over Humana, then it may impact many more Americans than just that. [8]

Granted, this is not the first nor will it be the last time that a court has blocked a merger and there are consequences for consumers. With that, cell phone companies and airlines do not comprise a basic need that so many Americans are lacking. This case, in particular, has further ignited the question of where our healthcare system is headed and how law and government will continue to interact with it over the next four years.

 

Works Cited

[1] “U.S. District Court Blocks Aetna’s Acquisition of Humana.” The United States Department of Justice. N.p., 23 Jan. 2017. Web. 31 Jan. 2017. <https://www.justice.gov/opa/pr/us-district-court-blocks-aetna-s-acquisition-humana&gt;.

[2] “The Antitrust Laws.” Federal Trade Commission. N.p., n.d. Web. 31 Jan. 2017. <https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/antitrust-laws&gt;.

[3] Id.

[4] Id.; “U.S. District Court Block Aetna’s Acquisition of Humana.”

[5] Hiltzik, Michael. “Smoking Gun? Aetna Threatened to Quit Obamacare If the Government Blocked Its Humana Merger.” Los Angeles Times. Los Angeles Times, 17 Aug. 2016. Web. 31 Jan. 2017. <http://www.latimes.com/business/hiltzik/la-fi-hiltzik-aetna-obamacare-20160817-snap-story.html&gt;.

[6] Id.; “Smoking Gun? Aetna Threatened to Quit Obamacare If the Government Blocked Its Humana Merger.”

[7] Id.; “U.S. District Court Block Aetna’s Acquisition of Humana.”

[8] Id.; “Smoking Gun? Aetna Threatened to Quit Obamacare If the Government Blocked Its Humana Merger.”

The Democratization of Injustice: How Judicial Elections Affect the Judiciary’s Ability to Protect Minority Rights

Chad Gasman ’20

Diane Watson, a former United States Representative from California’s 33rd District, argued in front of the entire House of Representatives that “the judicial branch has often been the sole protector of the rights of minority groups against the will of the popular majority” [1]. This idea is the driving force behind much of the judiciary—that because the will of the public, through tyranny of the majority, can conflict with the rights of the minority, the courts exist as a check on this public will. However, this check is only effective in-so-far as the court is removed from needing to respond to the will of the public; this distance from popular opinion that the court has enjoyed is under considerable threat in the status quo, as judicial elections for state-level judgeships are becoming increasingly politicized. These judicial elections threaten the very principles of judicial independence that keep the courts fair and impartial. Because judicial elections tie judges to public opinion rather than legal precedent, they degrade the ability for the judiciary’s to preserve the rights of the minority.

Judicial elections, at their core, have one major problem—the electorate is simply too uneducated to make a proper decision as to who should best serve on the bench. In fact, in 2014 the average voter couldn’t even name the three branches of government; according to an Annenburg survey, only 36% of Americans could list the executive, the legislature, and the judiciary [2]. If the average voter couldn’t even list the judiciary as a separate branch of government, there is little hope that the voting populace of America is capable of making rational decisions about judicial elections that are based on judicial philosophies that few outside of the judiciary understand.

Additionally, the way in which these elections are held does little to mitigate this ignorance. The Los Angeles County judicial elections are a key example of this failure to mitigate public ignorance. In June of 2014, with 26 candidates running for 12 judicial seats in the County, voters were tasked with making important, yet minute, distinctions among a plethora of candidates. However, the candidates had little opportunity to distinguish themselves on the ballot: “candidates only get to use three words for their job title” on the ballot [3]. Without meaningful information, voters “tend to vote based on factors that have little or no bearing on a candidate’s qualifications … there have been instances of qualified sitting judges with foreign-sounding last names being defeated by less-qualified or unqualified challengers with Anglo-Saxon-sounding names” [4].

When voters look past these rather arbitrary factors, they are not making decisions based on a judicial philosophy or legal issues; rather, they are relying on information they receive from paid advertisements to make their decisions in judicial elections. Even before Citizens United allowed nearly unlimited spending in campaigns, special interests were spending millions of dollars in advertising on local judicial elections. In fact, according to Adam Skaggs, between 2000 and 2009, “an estimated $93.6 million was spent on television advertising by candidates and interest groups hoping to sway judicial contests” [5]. Melinda Gann Hall also found that television advertising is used during a campaign, the airings of “attacks in particular” have increased substantially [6], and that, more and more, voters “may prefer policy talk by judicial candidates” as opposed to discussions of jurisprudence and pressing legal issues [6]. More importantly Hall also found that “attack airings mobilize voters” in judicial elections, making them incredibly effective at swaying the vote in a particular candidate’s favor [7].

The problem with judicial elections ultimately lies in the fact that voters who are uneducated about legal issues will turn to other determinants to make their decision. The determinants are overwhelmingly and incredibly politicized, as attack advertisements that center on policy tend to be. As such, justices are elected not based on their legal merits, but based on how well they conform to the public opinion surrounding particular policy issues.

Notably, studies have found that elections can alter the decision-making of elected judges and justices on the bench. One such study, conducted by Lambda Legal in 2016, found that “elected judges are less likely to support gay rights than are appointed ones” [8]. The statistics themselves are particularly striking, as “State Supreme Courts whose justices were elected in partisan elections supported gay rights 53 percent of the time,” a number that grew “to 82 percent for appointed systems” [9]. This suggests that justices that are elected act significantly more like politicians than jurists, making decisions that take into account public opinion and politics in addition to legal precedent as opposed to only taking legal precedent into account. While it is not a damning condemnation of elected justices, this statistic at the very least reveals that elected justices could be influenced by public opinion enough to change the way that they rule. This goes against the characteristics of an ideal judge that Chief Justice John Marshall, arguably the country’s first great jurist, espoused—that a judge ought to be “perfectly and completely independent” [10].

The implications of a court that rules off of public opinion rather than legal precedent are dangerous and far-reaching. Even just the aforementioned example of the disparity around protection of LGBTQ rights ought to be enough to raise some alarms among political and judicial scholars, as this example alone shows that the rights of a minority group potentially stem not from the Constitution or from law, but from the public’s will to grant them those rights. In numerous cases where the courts have found that a right exists and that it deserves protection from government intrusion, the public has often disagreed with the jurists who made the decision. The gay marriage decisions—Hollingsworth v. Perry, United States v. Windsor, and finally Obergefell v. Hodges—all experienced significant public backlash, and in perhaps the most explicit example of the court as a block against public opinion, the interracial marriage decision in Loving v. Virginia was written when roughly 70 percent of Americans disapproved [11].

It is clear that public opinion is often antithetical to the rights of the minority, with the courts being the independent actors who serve to protect the latter. However, as judicial elections become increasingly politicized, and as judges are bound, more and more, to the will of the public rather than to the Constitution, the ability of the court to protect the minority is weakened. Ultimately, electing judges and justices degrades their ability to be impartial and independent defenders of the rights of the minority.

Now, arguments have been made for the necessity of keeping judges and justices accountable to the people. One particularly compelling argument in favor of judicial elections is that judges, particularly Supreme Court justices (on the state and federal level), act as policymakers in some regards. David Pozen argues that even the Supreme Court has acknowledged that “judges do engage in policymaking at some level” (2008, p. 274). If these justices do, in fact, act in similar capacities to other policymakers, such as legislators or executive officials, then there is merit to the necessity of their election. People ought to have their voice heard when it comes to policy that affects them, whether that policy comes out of the legislative chambers or comes from a judicial bench. However, this view of the judiciary ignores their role as a check to policymaking, rather than as the primary policymakers. The courts that make up the judiciary are the last line of defense against unconstitutional laws and regulations, and that is their primary role, not policymaking.

The judicial system was established with the purpose of being the fair and impartial arbiter of the law, and has seen this role expanded to being the vanguard of constitutional rights against unnecessary government encroachment. They are, at their very core, not meant to be responsive to the people; rather, they are meant to serve as a check on public opinion itself. Judicial elections, which unnecessary entangle the courts with public opinion, leave them unable to perform their primary duty of independently interpreting the law and applying it fairly and justly. Unable to do so, the court’s ability to protect the rights of the minority is dangerously diminished.

 

Notes

[1] 150 Cong. Rec. 13, 17253 (2004) (statement of Rep. Watson).

[2] Ilya Somin, What No One Talks About During Election Season: Voter Ignorance, Forbes (Nov. 3, 2014, 3:08 PM), http://www.forbes.com/sites/realspin/2014/11/03/what-no-one-talks-about-during-election-season-voter-ignorance/#3e9c90b23a22.

[3] Jessica A. Levinson, Op-Ed: Why Voters Shouldn’t be Electing Judges, LA Times (May 8, 2014, 5:31 PM), http://www.latimes.com/opinion/op-ed/la-oe-levinson-end-judicial-elections-20140509-story.html.

[4] Id.

[5] Adam Skaggs, Buying Justice: The Impact of Citizens United on Judicial Elections (Brennan Ctr. for Justice ed., 2010).

[6] Melinda G. Hall, Attacking Judges: How Campaign Advertising Influences State

Supreme Court Elections 94 (Stanford Law Books ed., 2015).

[6] Id. 93.

[7] Id.

[8] Adam Liptak, Judges Who Are Elected Like Politicians Tend to Act Like Them, NY Times (Oct. 3, 2016), http://www.nytimes.com/2016/10/04/us/politics/judges-election-john-roberts.html?_r=0.

[9] Id.

[10] Id.

[11] Molly Ball, How Gay Marriage Became a Constitutional Right, The Atlantic (Jul. 1, 2015), http://www.theatlantic.com/politics/archive/2015/07/gay-marriage-supreme-court-politics-activism/397052/.

[12] David E. Pozen, The Irony of Judicial Elections, 108 Columbia L.R. 265, 273-277 (2008) (discussing the virtues of judicial elections).