Liquid error: undefined method `select!' for #<ContentNode::ActiveRecord_Associations_CollectionProxy:0x000055cb3f4c4f18> Did you mean? select _select!

Posts from

Trump Justice Department sides with court ruling that would invalidate the Affordable Care Act

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Last December, a Republican judge named Reed O’Connor handed down an opinion purporting to strike down the entire Affordable Care Act. The case, Texas v. United States, was brought by several Republican officials who manipulated the process used to assign judges to cases in order to get this case into O’Connor’s courtroom.

O’Connor, a former Republican Capitol Hill staffer, has a history of striking down policies supported by Democrats on highly dubious grounds. His opinion in Texas was no exception.

Nevertheless, on Monday evening, the Trump administration filed a brief letter in the conservative United States Court of Appeals for the Fifth Circuit informing the appeals court that it agrees with O’Connor’s opinion and will file a brief asking the court to repeal Obamacare in its entirety.

As a general rule, the Justice Department has a duty to defend any federal statute challenged in court, regardless of whether the incumbent administration agrees with that statute. The Justice Department will disregard this duty in rare cases, such as when no reasonable arguments can be made in favor of a law. But, in this case, no reasonable argument can be made in favor of O’Connor’s position.

As originally enacted, the Affordable Care Act required most Americans to either carry health insurance or pay slightly higher income taxes. In the 2017 Trump tax law, Congress effectively repealed this requirement by zeroing out the tax penalty for not having insurance.

The premise of O’Connor’s Texas opinion is that, when Congress repealed this one provision of the law, it rendered the rest of Obamacare invalid. O’Connor’s logic is convoluted, but it rests upon two points.

More ...

The Supreme Court is about to kick America’s democratic death spiral into overdrive

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Somewhere, in an alternative universe where the winner of the 2016 presidential election lives in the White House, partisan gerrymandering is unconstitutional. Justice Merrick Garland provided the key fifth vote in Gill v. Whitford to strike down the Wisconsin Republican Party’s aggressive effort to immunize itself from elections. Lower courts are busy dismantling gerrymanders in states like North Carolina, Ohio, and Maryland. And in 2018, Wisconsin held its first competitive state assembly elections in years.

Meanwhile, here in this universe, the picture is much more grim. In 2018, Democratic Wisconsin state assembly candidates won 54 percent of the two-party popular vote, beating their Republican counterparts by 8 percentage points. Yet Republicans won 63 of the state’s 99 assembly seats.

With Republicans in firm control of the Supreme Court in 2018, the high court decided not to decide Gill, leaving Wisconsin’s gerrymander in place. Then Republicans gained an even tighter grip on the Supreme Court when Justice Anthony Kennedy — the court’s occasional swing vote and the only member of its Republican majority who appeared open to striking down partisan gerrymandering — left the bench.

All of which is a long way of saying that the outcomes in Rucho v. Common Cause and Lamone v. Benisek, two partisan gerrymandering cases that the Supreme Court will hear next Tuesday, are practically preordained. The Court will almost certainly vote 5-4 to hold that such gerrymanders cannot be dismantled by federal courts. Republicans will keep the profound advantages they gained in 2010, thanks to the coincidence of the fact that the GOP had a strong electoral year immediately before a redistricting cycle. States like Wisconsin will remain sham democracies.

More ...

The Supreme Court takes up a gerrymander so egregious even its Republicans may strike it down

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Virginia has not held a democratic election for its House of Delegates for many years — though unless the Supreme Court intervenes in a case known as Virginia House of Delegates v. Bethune-Hill, that’s about to change.

To be sure, the commonwealth goes through the motions of permitting its citizens to cast ballots and then counting those ballots every two years. But Virginia’s gerrymandered maps preordain Republican control of the state house. In 2013, Republicans won a 67-33 supermajority in the House of Delegates, despite the fact that Democrats swept Virginia’s statewide races in the very same election. After the 2017 elections, the GOP majority shrunk to 51-49 — but that’s after Democrats won the statewide popular vote by more than nine points.

Last January, a federal court ordered enough of the state house maps redrawn to give Democrats a very good shot of gaining a majority in the 2019 elections. The fate of this court’s decision that Virginia’s legislatively drawn maps constituted an illegal racial gerrymander is now before the Supreme Court — which will hear oral arguments next Monday.

Ordinarily, the Roberts Court is where voting rights go to die. Just last term, in Abbott v. Perezthe Supreme Court effectively held that white Republicans enjoy such an extraordinarily strong presumption of racial innocence that it is virtually impossible for voting rights plaintiffs to prevail when they accuse lawmakers of drawing district lines with racist intent. And that was before Justice Anthony Kennedy allowed President Donald Trump to choose his successor.

More ...

Trump’s rollbacks would increase CO2 emissions by more than 200 million tons annually, report finds

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

The Trump administration’s ongoing efforts to weaken or dismantle climate efforts would increase CO2 emissions by more than 200 million tons annually, taking a severe toll on public health, according to a new report released Tuesday by the nonpartisan State Energy & Environmental Impact Center at New York University’s (NYU) law school.

Sectors responsible for nearly half of all U.S. greenhouse gas emissions are benefiting from rollbacks and weakened regulations at the expense of U.S. residents, according to the report. But state attorneys general across the country have played a key role in countering the the president’s quest to repeal or weaken several key environmental regulations.

“Donald Trump ran for president saying he was going to be a change agent and unfortunately he has. He has become an agent of climate change,” said Maryland Attorney General Brian Frosh during a Tuesday press conference to discuss the report and long-term impacts of the Trump administration’s environmental rollbacks.

“He has targeted fossil fuels not to decrease their emissions or their threat to society but to increase their emissions — it’s extraordinarily dangerous.”

More ...

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.

More ...

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.

More ...

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.

More ...

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.

More ...

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.

More ...

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.

More ...

Union Matters

Higher Taxes & Broken Promises

From the AFL-CIO

While many Americans are frustrated by smaller refunds this Tax Day, major corporations like AT&T are celebrating billions in massive giveaways, courtesy of the Tax Cuts and Jobs Act.  

The tax bill, which was signed into law in 2017, dramatically cut the corporate rate tax from 35% to 21%. This led AT&T’s CEO to vow that the company would create at least 7,000 jobs.

Instead, AT&T has eliminated more than 12,000 jobs since the law took effect.

At the same time, the corporation’s annual report shows the company increased executive pay and suggests that after refunds, it paid no cash income taxes in 2018.

More ...

A Moral Imperative

A Moral Imperative