Lawmakers declare war on the biggest civil rights problem you’ve probably never heard of

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

If you have a cell phone, a credit card, or even if you just have a job, there’s a very good chance that you’ve been forced to sign away your right to sue your cell phone company, bank, or boss. Indeed, under the Supreme Court’s forced arbitration cases, your boss may order you to sign away your rights under penalty of termination.

On Thursday, Rep. Hank Johnson (D-GA) and Sen. Richard Blumenthal (D-CT) introduced legislation called the Forced Arbitration Injustice Repeal (FAIR) Act, which seeks to eliminate many forms of forced arbitration. Though versions of this bill have kicked around Congress for more than a decade — often under the name “Arbitration Fairness Act” — the FAIR Act stands out because of the broad coalition of lawmakers who now support it.

The House version of the legislation has 147 cosponsors, while 34 senators cosponsored their version of the FAIR Act.

Nearly a century ago, Congress passed the Federal Arbitration Act to, in Justice Ruth Bader Ginsburg’s words, allow “merchants with relatively equal bargaining power” to agree to resolve disputes through private arbitration — rather than through potentially more expensive litigation. In recent decades, however, the Supreme Court expanded the Arbitration Act — often ignoring the act’s explicit text in the process — to allow businesses to force workers and consumers into arbitration agreements, often stripping them of their ability to effectively sue the enterprise.

The Arbitration Act, for example, exempts “workers engaged in foreign or interstate commerce.” Nevertheless, in Circuit City v. Adams, the Supreme Court held that workers engaged in foreign or interstate commerce could be forced into arbitration. Similarly, the Arbitration Act says nothing whatsoever about class action lawsuits. Nevertheless, in AT&T Mobility v. Concepcion, the Supreme Court held that companies may add language to forced arbitration agreements that immunize the company from class actions.

The consequences of these decisions are severe. According to the Economic Policy Institute, workers and consumers are significantly less likely to prevail before an arbitrator than before a real judge, and they are awarded significantly less money when they do prevail.

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Court hands down a stunningly aggressive attack on illegal gerrymandering

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

A perennial problem in gerrymandering cases is that, even when an illegal map is eventually struck down by the courts, the state will often administer one or more elections using the deficient map before the courts can intervene.

That effectively means illegally elected lawmakers will make new laws — sometimes for years. It also means partisans have little incentive not to gerrymander, because their illegal maps are likely to be in effect for at least one election.

On Friday, a North Carolina state court offered a radical and creative solution to this problem, invalidating two state constitutional amendments that were proposed by an illegally gerrymandered legislature after the state’s legislative maps were invalidated — but before a new election could remove lawmakers in gerrymandered seats from office.

The case is North Carolina State Conference of the NAACP v. Moore.

Under the North Carolina Constitution, the state legislature may propose constitutional amendments with a 3/5s supermajority vote in both chambers. Such proposed amendments must then be ratified by a majority of the voters.

In June of 2018, about a year after the Supreme Court affirmed a lower court decision striking down many of North Carolina’s legislative districts as unconstitutional racial gerrymanders, state lawmakers proposed six amendments to the state’s constitution. Two of these amendments, a cap on income taxation and a voter ID requirement, were later ratified by voters.

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2 Millionaire Senators Introduce Plan to Ensure Congress is Only for the Rich

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Let’s start this column off with a bold assertion. Paying lawmakers good salaries is one of our country’s most important progressive reforms because it means that they don’t have to be wealthy to serve. High congressional pay is a safeguard against corruption, not a sign of it.

Bear this assertion in mind as you consider this proposal.

Scott’s net worth was $232.6 million at the end of 2017 — not bad for a man who led a company that paid $1.7 billion in fines for widespread Medicare and Medicaid fraud. His co-sponsor, Sen. Mike Braun (R-IN), is worth between $35 million and $96 million, according to his campaign disclosure forms. So Scott and Braun can afford to forego their pensions — or their entire salary, if they choose.

Yet, if elected officials do not receive what Scott dismisses as “generous salaries and pensions,” that will discourage people who do not have Scott or Braun’s vast wealth from running for office. As future President John Adams once warned, if “you make it law that no man should hold an office who had not a private income sufficient for the subsistence and prospects of himself and family,” then “all offices would be monopolized by the rich, the poor and the middling ranks would be excluded, and an aristocratic despotism would immediately follow.”

The question of whether to pay lawmakers was hotly contested by the framers — as historian Gordon Wood writes, the ultimate decision to do so “was radical for the age.” Many prominent early Americans subscribed to what Wood labels the “classical republican” view, which saw public service as a burden that should be carried without remuneration.

“In a virtuous government,” Thomas Jefferson claimed, “public offices are, what they should be, burthens to those appointed to them, which it would be wrong to decline, though foreseen to bring with them intense labor, and great private loss.”

Jefferson, of course, was a wealthy slave owner.

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Pence issues a thinly veiled shutdown threat to Democrats

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

President Donald Trump did not mention the 35-day shutdown that he began last December in his State of the Union Address on Tuesday, preferring instead to wax poetic about unity and cooperation. The next morning, however, Vice President Mike Pence suggested Trump would welcome another shutdown unless Democrats give in to the White House’s demands.

In an appearance on CBS News Wednesday morning, Pence repeated White House talking points about criminal gangs and “narcotics” that are allegedly streaming across the border. In reality, undocumented immigrants are less than half as likely to commit a crime in the United States as native-born Americans. And, while illegal drugs do sometimes cross America’s southern border, Trump’s proposed solution — a border wall — would not address this problem.

As ThinkProgress previously reported, “cocaine seizures on U.S. borders . . . regularly measure in tons, making it impractical to have individual migrants ferry it across.” For this reason, “dealers prefer to smuggle drugs into the country via legal ports of entry, which allow them to bring in high-value substances that are more easily hidden.”

Nevertheless, Pence used his appearance on CBS to issue a thinly veiled threat to Democrats — give Trump what he wants, or federal workers and their families will pay the price.

Trump “has laid out a plan,” Pence said, which includes “a steel barrier,” “additional detection technology,” and more border guards. “All of that is exactly what the American people want us to do,” Pence falsely claimed, before delivering his threat.

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This is how to end government shutdowns forever

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Speaker Nancy Pelosi told reporters on Friday that she supports permanent legislation to ensure that government shutdowns never happen again. Broadly speaking, Pelosi wants legislation providing that “any appropriations bill that does not get agreed upon within a timely fashion by the date, you automatically go into a CR” — a “continuing resolution” that maintains current spending levels.

Basically, Pelosi would replace the current default rule — that government funding is zeroed out in the absence of a law appropriating money — with a new rule that government funding remains constant until it is explicitly changed by Congress. Done right, this proposal could eliminate the shutdown as a tactic rogue elected officials can use to extort concessions from the opposing party. Done poorly, however, such legislation could make matters worse.

There is, however, a clear way to ensure that shutdowns never happen again. Current law allows the Republican Party to take federal workers hostage whenever they want to enact policy that Democrats oppose. A new law could change this power dynamic, effectively forcing Republicans to choose between funding the government and imposing higher taxes on their wealthiest donors.

The problem of inflation

There’s a fairly simple reason why legislation that simply continues existing funding levels during a budget dispute is a bad idea.

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Neil Gorsuch pens a devastating takedown of his own most important opinion

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

The Supreme Court sided with a worker over a corporation in a case involving the Federal Arbitration Act on Tuesday. For those unfamiliar with the Court’s arbitration decisions, that happens about as often as a unicorn wins the Powerball lottery while simultaneously being struck by lightning.

And, as further evidence that Beelzebub awoke this morning to discover thick layer of snow on his lawn, the Supreme Court’s decision in New Prime v. Oliveira was written by Neil Gorsuch — the author of a decision holding that the Arbitration Act permits employers to engage in small-scale wage theft with impunity.

As Slate’s Mark Joseph Stern writesNew Prime “marks the triumph of the Gorsuch brief—a highly technical argument designed to nab the justice’s vote by fixating on the text of a statute and its meaning at the time of passage.” But it is also a hollow triumph. New Prime is an important case because it is one of a few rare examples where this Supreme Court read the Arbitration Act consistently with its explicit text, but it also dealt with a fairly minor issue that carves out a narrow exception to the Court’s decisions enabling wage theft.

In Epic Systems v. Lewisa much more significant wage theft decision that Gorsuch penned last year, Gorsuch blithely ignored the text of the Arbitration Act — while simultaneously holding that his atextual reading of the Arbitration Act trumps the explicit language of a law enacted to protect workers’ collective action.

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The completely sensible way that other nations ensure that their government doesn’t shut down

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

The United States is a bizarre nation. Our government is shut down today because our entire system of government is poorly designed. And it is poorly designed in a way that many of our peer nations had the good sense not to emulate.

Our Constitution contains no safeguard — or, at least, no meaningful safeguard — against a rogue president who refuses to fund his own government in order to extort Congress into passing an unpopular policy into law. Sure, the Constitution allows supermajorities of both houses to override Donald Trump’s veto — as well as permitting a supermajority of the Senate to remove Trump from office altogether — but neither one of these things are happening.

In one of the worst predictions in our nation’s history, James Madison wrote that our “well constructed Union” would have a “tendency to break and control the violence of faction.” The framers were adamantly opposed to political parties — John Adams wrote that “there is nothing I dread So much, as a Division of the Republick into two great Parties.” They were of the belief that the system of government they’d built would thwart their rise. And they were hilariously, disastrously wrong.

And so the mechanisms the Founding Fathers devised to control a rogue president depend upon many members of that president’s own party turning against him. That’s a rare occurrence in any nation. And it ain’t happening in the United States in 2019.

The reason the government is shut down right now is because our system of government does nothing to incentivize Trump’s fellow Republicans to reopen it. And that’s fairly unusual among modern democracies.

Snap elections

As of this writing, Trump’s shutdown is the third-longest in the nation’s history. It’s likely to last much longer. Trump says he could keep it going for “months or even years.”

Compare that outcome to what happened in Canada when its government was unable to pass a budget in 2011.

In 2011, then-Prime Minister Stephen Harper’s Conservative Party controlled a plurality of Canada’s parliamentary seats but not a majority. Without such a majority, Harper’s proposed budget didn’t have enough votes to get through the legislature.

Canada did not shut down because of this impasse, however. In Canada, if parliament defeats a budget bill, that triggers an entirely new election (technically, the 2011 Canadian election was triggered by a no confidence vote, but a new election was widely viewed as inevitable). As it happened, Canadian Conservatives were well-positioned when this election happened, so they won an outright majority. That meant that they passed a budget and the nation moved on.

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Supreme Court considers whether drug companies can poison patients and get away with it

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Almost two decades ago, a professional guitarist named Diana Levine received an injection of a drug called Phenergan. It was supposed to relieve nausea from a migraine. Instead, it triggered irreversible gangrene.

Levine lost her right forearm and her livelihood. With just one hand, she could no longer play the guitar.

Levine’s lawsuit against the drug’s manufacture, Wyeth v. Levine, triggered a minor panic in the consumer rights community when it reached the Supreme Court a decade ago. The business-friendly Roberts Court seemed likely to absolve Wyeth of liability and leave Levine with nothing.

Instead, the Court broke 6-3 in Levine’s favor, with Justices Anthony Kennedy and Clarence Thomas crossing over to vote with the Court’s liberal bloc.

Ten years later, a similar case involving closely related legal questions is before the Supreme Court in Merck Sharp & Dohme Corp. v. Albrecht, which will be argued on Monday. But the Court itself looks very different. Justices John Paul Stevens, David Souter, and most significantly Kennedy, are all retired — and all of them were in the majority in Levine. Kennedy’s replacement is a hardline conservative likely to join the dissenters from Levine.

That means that the fate of thousands of Americans who face injuries similar to Levine is in jeopardy. And the question of whether the drug companies that injured this individuals will ever be held accountable could rest a man who is ordinarily the Court’s most conservative voice — Justice Thomas.

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Alito cut the legs out of the latest attack on Obamacare — and didn’t even know he did it

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Remember Burwell v. Hobby LobbyHobby Lobby is the single most significant court victory ever achieved by America’s religious right. Before Hobby Lobby, religious conservatives could not wield their faith to undercut the rights of other people. After Hobby Lobby conservative religious objections may be used to narrow the rights of third-parties.

Yet a passage in Justice Samuel Alito’s opinion for the Court in Hobby Lobby could — or at least, should — take on an entirely unexpected significance after Reed O’Connor, a partisan operative turned federal judge, struck down the entire Affordable Care Act on Friday in a case called Texas v. United States.

Judge O’Connor’s opinion is a jurisprudential trainwreck. It misreads the text of the law, draws distinctions that the Supreme Court explicitly rejected, and it feigns ignorance regarding the outcome of a year-long debate where congressional Republicans tried and failed to repeal Obamacare. O’Connor’s opinion is such an embarrassment to the judiciary that even Jonathan Adler, one of the architects of the last partisan lawsuit seeking to undermine Obamacare, called the opinion “strained and implausible.”

But you don’t have to take my or Adler’s word for it. You can also take Justice Alito’s.

O’Connor’s opinion, to the extent that it engages in anything that can be described as legal reasoning, rests largely on statements of fact that Congress wrote into the Affordable Care Act’s text when it enacted the law in 2010. Yet Hobby Lobbyrejected O’Connor’s use of such fact-finding statements. Indeed, the methodology O’Connor used in his opinion is so inconsistent with the methodology Alito used in Hobby Lobby that the two opinions cannot coexist.

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The key to saving us from Gorsuch and Kavanaugh lies in an obscure law signed by George H.W. Bush

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

If Democrats regain Congress and the White House, they will spend their time in power at war with an increasingly partisan Supreme Court. They can also learn a lot about how to fight such a Court from a law signed by Republican President George H.W. Bush.

As a U.S. Senate candidate in 1964, Bush took a deplorable position on civil rights, labeling the Civil Rights Act of 1964 — which banned employment discrimination and whites-only lunch counters, among other things — a “radical” piece of legislation that was “passed to protect 14 percent of the people.”

Bush soon abandoned these views. As a new congressman, Bush supported a ban on housing discrimination. And as president, Bush signed two significant civil rights laws — the Americans with Disabilities Act and the Civil Rights Act of 1991. While the first is better known, the second could offer a path forward to Democrats reeling from a stolen Supreme Court seat and the appointment of a man credibly accused of attempted rape to the same Court.

The Civil Rights Act of 1991 offered a swift corrective to the Supreme Court. In 1989, the Court handed down five decisions that “substantially eroded” the federal ban on employment discrimination. One of the major purposes of the law Bush signed was to override these decisions and replace them with rules more protective of civil rights (at the time, some members of the employer defense bar complained that the law reached “beyond a simple ‘restoration’ of prior laws” to enact a regime that was more protective of civil rights than the one that existed before 1989).

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