Law

Eric Holder's Big Voting-Rights Gamble

AP Images/Manuel Balce Ceneta
J ust about everyone who goes through a musical-theater phase at some point falls in love with Sky Masterson of Guys and Dolls . In the movie version, Marlon Brando plays the gambler who will wager “sky high” stakes and finds himself singing “Luck Be a Lady” while rolling the dice to see if he gets the girl. Going all in may be what you’d expect in a fictional singing crapshooter, but it’s a bit more surprising in a U.S. attorney general. Eric Holder’s announcement Monday that the Justice Department was going to bring a lawsuit against North Carolina’s new and wide-sweeping election law , which includes a laundry list of voter restrictions and changes making it harder to vote, showcases just how high he’s willing to make the stakes when it comes to voting rights. His department is now going to be litigating two high-profile cases—one against a voter-ID law in Texas, and the other against the omnibus bill in North Carolina. The DOJ is also involved in a case to show that Texas’s...

How the Shutdown Will Affect the Federal Courts

The government shutdown that began on Monday will have substantial effects on our country's justice system that will escalate over time. For the most part, the basic functions of the federal judiciary will continue during the Republican crusade against affordable health insurance. The Antideficiency Act permits the government's "essential services" to be funded during a shutdown. The Supreme Court, which accepted eight new cases this week, will remain open barring unforeseen circumstances. Since criminal justice is generally considered an essential service, circuit and district courts will remain open and continue to hear criminal cases as well. (The Sixth Amendment's requirement that defendants be given a "speedy and public trial" would mean serious potential problems should the prosecution of criminal cases be suspended for any significant length of time.) So federal judges will generally maintain employment, and courthouse doors will remain open. With respect to other basic...

Daddy's Home!

AP Images/Edmond Terakopian
AP Images/Edmond Terakopian M any mornings this year Matt Nuttall and his friend Ryan Faulkner met up in one of several neighborhood parks located between their houses in Pleasant Hill, California. While they changed diapers, dispensed snacks, and made sure their little ones didn’t fall off the playground equipment, the dads “talked to each other in adult,” as Nuttall puts it. Before too long, their children would begin to fade, and they’d head back to their respective houses to prepare lunch and oversee afternoon naps. “We didn’t do much, just sat around and kept the kids and ourselves from going crazy,” says Nuttall, who teaches ninth- and tenth-grade English at Sacred Heart Cathedral Preparatory in San Francisco. After his wife returned to her job, Nuttall took 12 weeks off from his. For half of that time, he received $945 a week through California’s Paid Family Leave program. The program, which has been in existence since 2004, offers workers up to six weeks off with maximum pay...

Have Too Many Cooks Spoiled Obamacare?

AP Images/J. Scott Applewhite
It's safe to say that if Americans don't understand the Affordable Care Act (ACA) by now—and they don't —they never will. The slightly better news is that consumers don't have to understand it in order to benefit from it, but even so, almost all the problems the ACA has encountered or will encounter are a result of the law's enormous complexity. That complexity grew out of early decisions made by Barack Obama, but along the way Congress added their own layers of complexity in order to pass it, then conservatives on the Supreme Court added some more. There were reasons, most of them perfectly good, for each of these decisions; everyone thought they were responding to reality or doing what was in the best interests of the country. But as full implementation of the law is upon us, we should acknowledge how much damage has been done by all this complexity. In a recent article in National Affairs , Johns Hopkins political scientist Steven Teles bemoans the rise of "Kludgeocracy." The term...

I Was Wrong about Elena Kagan

AP Photo/Alex Brandon, File
AP Photo/Susan Walsh O ne of the central arguments made by In the Balance , Mark Tushnet's terrific new book about the current Supreme Court bench ( reviewed here by Garrett Epps ), concerns the counterweight to the conservative faction led by Chief Justice John Roberts. If Democratic nominees are able to wrest control of the Supreme Court back from the Republican nominees who have controlled the median vote on the Court for more than four decades, Tushnet argues, it is Elena Kagan who is likely to emerge as the intellectual leader of the Democratic nominees. And despite what many liberals feared, there is every reason to think that this would be an outcome supporters of progressive constitutional values would be very happy with. When I say "many liberals," I include myself . My skepticism about the nomination, I should clarify, was not because I thought Kagan was a bad or unqualified nominee, or because I thought she was a closet reactionary. In the context in which Democrats had a...

Boom Times for the NRA

Flickr/Sea Grape
There's a lot happening at the moment—government shutdown, war in Syria, Iranian president sort of maybe not denying the Holocaust—so there was very little attention given to the fact that yesterday, the United States government signed the United Nations Arms Trade Treaty (ATT), commonly known as the small-arms treaty. It's meant to prevent the arming of human-rights abusers—potential perpetrators of genocide, and the like—by obligating states not to sell conventional weapons, from small arms up to tanks and helicopters, to foreign governments or entities that are going to use them to commit war crimes and massacre civilians. When it was voted on by the UN, the only countries that voted against it were Syria, Iran, and North Korea. And today, the National Rifle Association is celebrating. That might strike you as odd, but the ATT is political gold for them. It's the international equivalent of a failed gun control effort in Congress, which is far, far better than no gun control effort...

Life Takes Visa—Except If You Want to Buy Pot

AP Images/Marcio Jose Sanchez
AP Images/Marcio Jose Sanchez E arlier this summer, Elliott Klug had a plumbing problem on his hands. There was a leak in the drainage line between his marijuana dispensary, Pink House Blooms in Denver, Colorado, and the street. It was a relatively simple fix, but when it came time to pay the plumber, things got more complicated. Because of federal regulations that restrict marijuana business owners’ access to financial services like banking, Klug had no choice but to hand the plumber an envelope with $25,000 in cash. When the plumber tried to deposit the payment, the cash was held in limbo until the bank could count all of the money and verify that it wasn’t laundered—standard operating procedure for such a large cash deposit. Klug says it’s just another daily hassle for marijuana dispensaries, which occupy a strange legal gray area. Under Colorado law, Pink House Blooms is just one more small business, but in the eyes of the federal government, Klug is illegally trafficking one of...

It's Not about the Video Games

No, these are not mass murderers in training. (Flickr/Abraxas3d)
The pattern has become familiar: There's a mass shooting, and while some liberals try to raise the issue of the fact that our society is drowning in guns, more "realistic" commentators quickly turn the discussion away to some of different questions. Did the mental health system fail? And what about those violent video games? Aren't they a big part of the problem? That's what people are asking now about Aaron Alexis. The answer is simple: No, video games aren't part of the problem of gun violence in America. Or more specifically, even if they're part of the problem, they're such an infinitesimally small part of the problem that blaming them for the endless gun slaughter in America is like blaming one of the leaves on the tree that fell on your house for all the damage to the roof. This shouldn't be difficult to wrap your head around. Think about it this way. Could an early intervention by mental health workers and authorities have helped Aaron Alexis before he turned murderous? Perhaps...

Secular Corporations Cannot Exercise Religion, My Friend

AP Photo/Matty Zimmerman
Earlier this week, the 6th Circuit Court of Appeals rejected claims stating the requirement that corporations performing secular functions—in this case, the manufacturing company Autocam—cover contraception as part of their employee-insurance packages represented a violation of these corporations' rights. The 6th Circuit is the second circuit court to reject these claims, following the 3rd Circuit (conversely, the 10th Circuit held that there was a "likelihood" that the Hobby Lobby chain of craft scores was " substan tially burdened" by the requirement.) Perhaps even more interesting is the reasoning the 6th Circuit panel used to reach its decision. According to the court's persuasive argument, it is not possible for a for-profit corporation with secular purposes to "exercise" religion in a way protected by the Constitution or federal statues. To provide the relevant background, the most obvious source for a claim that the contraceptive coverage requirements violate religious freedom...

The Carnage Continues

Just another of the dozens of mass shooting sites in America. (Flickr/NCinDC)
Here are some names that have been in the news in the last year; see if you can remember any of them: Andrew Engeldinger. Kurt Myers. Dennis Clark. John Zawahri. Pedro Vargas. Ring any bells? In another country, each of these men would be nationally famous. But not here; they were in the news for a couple of days, and then quickly forgotten. Each of them committed a mass shooting in 2013. We have so many mass shootings— over 50 in the last two decades alone—we don't even bother to recall the perpetrators' names. And guess what: yesterday's horrific shooting at the Navy Yard in Washington will be forgotten pretty quickly, too. In this morning's New York Times , the Navy Yard shooting merited a one-column headline, along with "U.N. Implicates Syria in Using Chemical Arms" and "Push for Yellen To Lead at Fed Gathers Steam." My guess is that for most national news outlets, this will be a three-day story: yesterday was the first day ("This is happening"), today is the second day ("This...

Homeowners vs. Big Bad Banks

AP Photo/Paul Sakuma, File
AP Photo/Michael Dwyer, File I n June, six former employees of Bank of America's loan-modification department testified in court that since 2009, they had been instructed to lie to struggling homeowners, hide their financial documents, and push them into foreclosure. In the most egregious example, the employees said they were offered Target gift cards as a bonus for more foreclosures, which generated lucrative fees for the bank. The employees, who were in charge of implementing the government’s Home Affordable Modification Program (HAMP) at the bank, described the same deceptive practices across the country. Two weeks ago, U.S. District Court Judge Rya Zobel dismissed the case , denying class-action certification to 43 homeowners in 26 states who suffered because of similar conduct. “Plaintiffs have plausibly alleged that Bank of America utterly failed to administer its HAMP modifications in a timely and efficient way,” Zobel agreed, adding that vulnerable homeowners had to wade...

Reagan's Court v. the Libertarians'

I n 1983, Chief Justice Warren Burger asked Congress to create a new national appeals court to resolve cases the Supreme Court was too busy to hear. At the Reagan White House, a cheeky 28-year-old Harvard Law graduate named John G. Roberts was horrified. “The President we serve has long campaigned against government bureaucracy and the excessive role of the federal courts,” Roberts wrote to White House Counsel Fred Fielding. Burger’s proposal would create “an additional bureaucratic structure to permit the federal courts to do more than they already do.” Anyway, Roberts continued, the Supreme Court already made too many decisions. “There are practical limits on the capacity of the Justices, and those limits are a significant check preventing the Court from usurping even more of the prerogatives of the other branches. The generally-accepted notion that the Court can only hear roughly 150 cases each term gives the same sense of reassurance as the adjournment of the Court in July, when...

Proof the Left Coast Is the Best Coast?

AP Images/Reed Saxon
The AFL-CIO held its national convention in California last week, and it turns out it couldn’t have picked a better time to be there. For it was last week that California really began to deliver on the promise of the labor-Latino alliance. On Thursday, with the legislature rushing to meet its targeted adjournment date on Friday, it passed a bill raising the state’s hourly minimum wage from $8 to $10—the highest in the nation. It passed a bill permitting undocumented immigrants to get driver's licenses. Governor Jerry Brown has committed to sign both bills. It also passed a bill mandating overtime pay for domestic workers, and, for good measure, outlawed the sale of rifles with detachable magazines and required owners of such rifles to register them with the state. And perhaps just as remarkably, on Thursday, 15 Republican members of the state legislature announced their support for federal immigration reform, including legalization of the undocumented. None of these victories were...

Blinded by the Gun-Control Fight

Photo by Melanie Stetson Freeman/The Christian Science Monitor
AP Photo/Brennan Linsley, File T he Republican Party hasn't been known for its sterling record on disability rights lately. Last December, 38 GOP senators memorably tanked the UN Convention on Persons With Disabilities over the pleading of former Senator Bob Dole, walking past his wheelchair to cast "no" votes and sparking widespread outrage among disability rights groups. In the past week, however, many disability groups have applauded an Iowa law allowing blind residents to carry concealed handguns, a rule change that has raised eyebrows from Iowa sheriffs to The Colbert Report . The permits have been issued as an effect of 2011 conceal-and-carry legislation that made Iowa a "shall grant" state—"shall grant" being the legal equivalent of Heston's infamous "from my cold dead hands" in terms of who can be denied a permit by a state sheriff—a law that’s now getting national attention thanks to a report in the Des Moines Register . There are exactly six restrictions on who can and...

Yet Another NSA Violation

AP Photo/Patrick Semansky, File
L ast month, it was revealed that the court established by the Foreign Intelligence Surveillance Act (FISA) had rebuked the National Security Agency (NSA) for using illegal search methods. Not surprisingly, this incident wasn't an isolated one. In another judicial opinion responding to a lawsuit by the Electronic Frontier Foundation (EFF), further illegal abuses by the NSA were unveiled . Like the previous revelations, this story tells of the dangers posed by a NSA conducting searches with far too broad a scope and too few constraints. The latest NSA abuses involve the database of phone calls made by Americans compiled by the NSA. Phone companies have been ordered to turn over "metadata" about the calls made by their customers. The NSA keeps five years of this metadata on file at any given time. When the agency makes queries into the database, however, it is required by the FISA court to have a "reasonable articulable suspicion" that the call involves communication with a terrorist...

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