Tracking the latest developments in the fight for a fair America
The Supreme Court’s very last decision for the term, Michigan v. EPA, grants a challenge to the the EPA’s long overdue limits on toxic pollution from coal-fired power plants by a coalition of power companies, coal mining companies and allied states. In a narrow 5-4 decision, Justice Scalia portrayed the EPA as having unreasonably refused to consider cost when the agency decided that controlling power plants’ toxic pollution is “appropriate and necessary.”
Some of the petitioners asked the court to vacate the limits – i.e., throw them out altogether. Instead, the court merely remanded the rule to the D.C. Circuit Court for further proceedings consistent with its holding that the EPA should have considered cost. That choice of remedy was important: the rule will save up to 11,000 lives each year, and vacating or blocking it, as some coal mining and power companies requested, would cause thousands of people to die unnecessary premature deaths.
Further litigation in the D.C. Circuit is all but certain. Nothing in the Supreme Court’s ruling, however, requires the EPA to withdraw or even change the limits. All the EPA has to do is explain why it believes that limiting power plants’ toxic emissions is “appropriate and necessary” when the costs to industry are considered. As Justice Scalia explains, the majority opinion does not require a formal cost benefit analysis and leaves it “up to the agency” to decide “how” cost should be considered.
The EPA can provide the desired analysis quickly because it already has considered the cost to industry and concluded that the costs are vastly outweighed by the public benefits of controlling power plants’ pollution. Reducing power plants’ emissions of fine particulate matter will save between 4,200 and 11,000 lives every year as well as preventing thousands of non-fatal heart attacks and asthma attacks, and hundreds of thousands of lost work days. The economic value of those health benefits to the public is between $33 billion and $90 billion per year – approximately $3-$9 in public benefits for every $1 in cost to industry. The court did not take issue with any of these findings. Rather, it faulted the EPA for not including them in its justification for the rule.
The majority’s reasoning in this decision is disappointing. It is not obvious, as the majority assumed, that Congress intended the EPA to consider cost when it determined whether regulating power plants’ toxic emissions was appropriate and necessary. As the dissent points out, it is at least as likely that Congress intended the agency to base that initial decision on public health and environmental concerns and reserve the consideration of cost to a later stage in the regulatory process when the EPA would know what reductions were required. Justice Scalia’s comparison of the EPA’s careful and reasoned approach to buying a Ferrari without asking the price is not just shallow, but wholly inappropriate for health protections that will save thousands of lives each year.
What matters now, though, is still what mattered when the EPA concluded almost 15 years ago that regulating power plants’ toxic emissions is appropriate and necessary. Coal-fired power plants remain the worst of the worst industrial polluters. They still emit more toxic pollution than any other industry and, in the case of some pollutants like mercury and arsenic, as much or more than every other polluting industry combined. Then, as now, mercury from power plants contaminates lakes and rivers across the country and, because they eat the fish in these waters, thousands of American women have enough mercury in their bodies to endanger the health of their nursing infants and unborn babies. Then as now, people die every year from breathing pollution that the power companies could have prevented.
This situation is unnecessary and unacceptable. The good news is that the EPA has gone a long way to fixing it and the Supreme Court’s decision, for all its flaws, has not stopped this progress. The Obama administration can satisfy the court’s decision and keep the vital health protections that its limits on power plant pollution provide. By doing so, it will secure a great legacy of controlling the worst and longest-lasting air pollution threat that this country faces.
Last Thursday, 6.4 million consumers could breathe a sigh of relief when the Supreme Court, led by Chief Justice John Roberts in a 6-3 ruling, affirmed that all parts of the Affordable Care Act remain the law of the land. With this latest attack on the health care law resolved, we have reached a turning point for health care reform.
King v. Burwell challenged whether tax credits (subsidies) that reduce the cost of health insurance premiums for lower-and moderate-income consumers could be available across the country or just in states that established their own health insurance marketplaces (exchanges). The Court has now ruled in favor of the government’s argument that both the text and intent of the law was to allow tax credits in every state. With this decision, we have hopefully reached an end to the legal wrangling designed to dismantle the law’s protections for consumers. Justice Roberts made clear that the ACA can now only be taken away by an act of Congress signed by the President, a scenario that appears unlikely.
The ACA has now survived more than 50 failed attempts by Congress to repeal all or part of the law and two high profile Supreme Court cases. The futility of these attempts to undo the law, as well as the increasing number of Americans benefitting from the law each day, should lead to a decline in the political attacks on the law. Policymakers should move on to continued implementation of the ACA and achieving further gains in improving our health care system.
There are a few key areas in particular that Families USA considers important next steps. They include:
- Closing the Medicaid coverage gap. 21 states have still not expanded the Medicaid program as the ACA envisions. We must work to ensure the 3.7 million people who would benefit from expansion are not left behind.
- Making health care even more affordable. While the ACA made great progress, there is still work to do to improve access to care for people with marketplace coverage. Work is necessary to ensure that out-of-pocket costs, like deductibles, are affordable and that enrollees aren’t forced to go out-of-network and face high bills due to inadequate provider networks. In addition, Congressional action is needed to eliminate the “family glitch” that prevents the families of some workers from accessing premium tax credits.
- Addressing health care disparities. Communities of color disproportionately face barriers to high-quality, affordable health care, and some immigrant groups are locked out of the system entirely. We must work to ensure all people have affordable access to high-quality care, translation services, and culturally competent providers and insurers.
- Transforming the health care system. We spend more money on health care than most other industrialized nations, yet do not always get better results. Aligning provider payments with the right incentives, better engaging consumers with their care, designing health insurance benefits that promote high-value care, and ensuring treatments are based on strong evidence will go a long way to improving care quality and reducing health care costs in the United States.
- Maximizing Enrollment in the Marketplaces. Many people are eligible for coverage and for financial assistance but do not know it. More work is needed to enroll the remaining uninsured, especially harder-to-reach populations.
For the millions of Americans whose health insurance hung in the balance, King v. Burwell represented a moment of fear. Celia Maluf is one such consumer. The sixty-year-old Miami woman works three part-time jobs but cannot afford health insurance without the subsidies. For months she worried that the Supreme Court would take away her health care. When the decision finally came down, she expressed a collective sigh of relief and declared: the “nightmare is over.” Indeed it is. Now we will move forward, away from attacks on health reform, and towards achieving high-quality, comprehensive, and affordable health care for all Americans.
Ben D’Avanzo is special projects manager and Claire McAndrew is private insurance program director for Families USA.
By Kyle Barry
AFJ Director of Justice Programs
Apparently the looming July 4th recess isn’t enough for Chuck Grassley to schedule a long-overdue judicial confirmation hearing. Instead, the Judiciary Committee Chairman appears to be guaranteeing at least three consecutive weeks without a confirmation hearing. Such needless delay, so clearly motivated by a partisan desire to obstruct the president’s judicial nominees, is never acceptable. But there is a more specific reason for concern: two pending nominees—Mary Barzee Flores for the Southern District of Florida, and Julien Neals for the District of New Jersey—have already waited four months for a hearing, and both are nominated to critical “judicial emergencies” in their home states.
Indeed, Florida and New Jersey are two of the states hit especially hard by the great confirmation slowdown of 2015. The Senate has confirmed only four judges this year; as a result, vacancies nationwide have increased from 43 to 59, and judicial emergencies—the official designation for courts that need more judges to handle their current caseload—have more than doubled, from 12 to 27. New Jersey alone has four new vacancies in 2015 (tied with New York for the most in any state) and all of them are judicial emergencies. There are three pending New Jersey nominees waiting for a hearing, including two (Neals and John Vasquez) nominated before April.
In Florida, Flores has been pending since February to fill a judicial emergency that is more than a year old. Florida also got its second judicial emergency this month when a Middle District seat opened up, and a future Northern District vacancy has been announced for December. With the new vacancies this year, Florida and New Jersey have become two of just six states with multiple judicial emergencies. And yet, Sen. Grassley refuses to take one simple step to address this growing problem: quickly process pending nominees through committee so they can be confirmed.
Flores’ nomination also reflects a troubling pattern of obstruction that has emerged under Republican leadership, one in which Republican senators publicly endorse a nominee from their home state, but then do virtually nothing to get them confirmed. We’ve seen this on the Senate floor where nominees recommended and ostensibly supported by powerful Republican senators like President pro tempore Orrin Hatch of Utah, and Majority Whip John Cornyn of Texas, were forced to wait months for what was ultimately a unanimous confirmation vote.
In the Judiciary Committee, this obstruction has taken a very specific form for nominees, like Flores, from states with one Republican and one Democratic senator. What’s happening with Flores now is precisely what happened—and continues to happen—with Third Circuit nominee L. Felipe Restrepo.
President Obama nominated Restrepo last November based on the joint recommendation of Republican Pat Toomey and Democrat Bob Casey of Pennsylvania. Casey then quickly returned his “blue slip” to the Judiciary Committee, signaling that he endorsed the nomination and that Chairman Grassley could move forward with a hearing. But Toomey did not follow suit. While he continued to express public support for Restrepo, he withheld his blue slip for over six months, enabling Grassley to delay Restrepo’s hearing under the pretext of completing a “thorough background investigation.” Toomey and Grassley finally buckled under intense public pressure, and Restrepo had a hearing on June 10. But nothing has happened since, and now Toomey looks unwilling to demand that Grassley and the other committee Republicans vote Restrepo onto the Senate floor.
Similarly, Flores was recommended by Republican Senator Marco Rubio and Democratic Senator Bill Nelson, and Nelson returned his blue slip soon after her nomination. Yet four months later, and despite mounting calls to fill the judicial emergencies in Florida, Rubio has done nothing to ensure that his fellow-Republicans actually move Flores toward confirmation.
With all these hearing delays, Grassley has fallen behind even his own announced pace for processing nominees. Grassley has held himself to “the Leahy standard in 2007,” when Senator Patrick Leahy was the committee chairman, and Democrats controlled the Senate under President George W. Bush. But at this point in 2007, Senator Leahy had convened five confirmation hearings for 17 judicial nominees, while only 13 nominees have had hearings this year. This is in addition to the enormous disparity on confirmations—four this year compared to 21 by the end of June in 2007.
The American people know better than to countenance this sort of form-over-substance support for judicial nominees we’ve seen from Republican leadership and home-state Republican senators. Americans need judges to decide cases and administer justice, not vague assurances that someday—“this year,” maybe—they’ll have enough judges in their district. This week, the people of New Jersey and Florida could have been a step closer to getting the judges they so desperately need, but, instead, their wait for justice is only further delayed.
A ruling by the Fifth Circuit Court of Appeals on Tuesday will close over 30 abortion clinics in Texas, likely leaving fewer than 10 open across the state. It’s no surprise to see the circuit’s judges rule against women’s rights. As we explained in a 2013 report, the decisions of the court’s Republican-appointed majority often reflect the conservative policy agenda of the presidents who appointed them, including opposition to reproductive rights.
The court upheld two state laws, one of which requires abortion providers to have admitting privileges at local hospitals and the other which requires abortion facilities to meet stringent ambulatory surgical center standards. These laws, like many others across the country, are passed under the guise of protecting health and safety. In reality, they are thinly-veiled attempts to shut down abortion clinics completely. Many facilities can’t afford the high costs of compliance, and local hospitals often refuse to grant admitting privileges. In Mississippi, for example, a similar law threatens to close the state’s last remaining clinic—a story told in AFJ’s 2013 film, Roe at Risk.
Tuesday’s decision is the latest in a string of rulings restricting access to abortion across the circuit. And two of its authors, President George W. Bush appointees Jennifer Walker Elrod and Catharina Haynes, are at the center of this trend.
Last year, both judges joined Judge Edith H. Jones in a similar ruling which upheld Texas’s hospital admitting privileges requirement and a restriction on medication abortions. Despite predictions that upholding the laws would leave 24 counties in the Rio Grande Valley without an abortion provider, the panel sided with the state because most women in Texas don’t live in the Valley. In other words, the court denied a constitutional right to an entire subset of Texas women—namely, those who live in rural areas and who cannot afford to travel long distances to find a provider. Judge James L. Dennis, dissenting from the full court’s decision not to review the case en banc, said the ruling “threaten[s] to annihilate the constitutional protections afforded women under Roe [v. Wade].”
Both judges also joined Judge Priscilla R. Owen in 2013 to stay a district court’s injunction against the laws. That ruling was left in place by the Supreme Court in a 5-4 decision.
In 2013, Judge Haynes voted to uphold a Louisiana law that broadened the malpractice liability of abortion providers by allowing women to sue for damages to the fetus, while also denying them access to the state-run malpractice insurance fund. By increasing the cost of providing abortions, the law could drive providers out of the state.
The Supreme Court may end up having the last word. A different Fifth Circuit panel—of which neither Haynes nor Elrod were members—struck down the Mississippi laws profiled in Roe at Risk, and that decision has been appealed to the Supreme Court. In the coming weeks, the Court is expected to decide whether to take the case. If it does, it should affirm the ruling and make clear to all the circuit’s judges that women’s constitutional right to abortion must be protected.
Last week, when asked if only district court judicial nominees—signed off on by Republican senators—would be confirmed this session, Senator Majority Leader Mitch McConnell responded that it was “highly likely.” Later, a spokesperson clarified that “[w]e probably will have a circuit court nominee” confirmed.
Either way, these comments represent a major retreat from the “regular order” McConnell promised upon becoming majority leader. Both Republican and Democrat-controlled senates have confirmed appellate court nominees in the final two years of an opposition presidency, usually in states with a senator from the president’s party. This Senate, by contrast, has failed to confirm a single appellate court judge. Under Senator McConnell’s leadership, eminently qualified nominees have been slow-walked through every step of the process.
L. Felipe Restrepo, a nominee to the Third Circuit, has waited over 200 days for a hearing in the Senate Judiciary Committee despite support from Republican Senator Pat Toomey. Judge Restrepo will finally have his hearing tomorrow afternoon. Soon after, the committee should report him to the Senate floor. How long his nomination languishes there will be yet another test of McConnell’s commitment to regular order.
In the last Congress of President George W. Bush’s second term, Senate Democrats confirmed 10 circuit nominees. They included vacancies in states represented by Republicans, Democrats, and mixed delegations. Most notably, Judge Leslie Southwick was confirmed to the Fifth Circuit despite opposition from progressive advocacy groups and three-fourths of the Democratic caucus.
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“Probably” confirming “a circuit court nominee” would make this Senate historic—just not in the way Senator McConnell would like. It would mark an unprecedented level of obstruction rather than the regular order the American people were promised. Our nation’s appellate courts need to be filled. It’s time for the Senate to start confirming judges.