Tracking the latest developments in the fight for a fair America
On March 4, the Supreme Court will hear oral arguments in King v. Burwell. The plaintiffs in this case are challenging the federal government’s ability to provide tax credits to consumers to help offset the cost of health insurance premiums in states that have not set up their own health insurance marketplaces (also known as exchanges) under the Affordable Care Act (ACA).
The parties in this case are the government and the plaintiffs who claim that the ACA harms them. Those whose lives and livelihoods have been saved by the ACA’s premium tax credits have been left out entirely. Yet an Urban Institute study found that, if the court rules in favor of the plaintiffs, 9.3 million people could lose access to health insurance under the Affordable Care Act. Families USA has captured some of their stories in our new interactive video.
Congress intended to make tax credits available in all states
The health reform law effectively gave states the option of either establishing their own insurance marketplace or letting the federal government (Healthcare.gov) run the marketplace for them. Those who make between 100 and 400 percent of the poverty line receive tax credits to offset the monthly premiums if they buy insurance on these exchanges. The challengers say that, because one section of the law concerning these credits refers to an “exchange established by the state,” no assistance should be available for those who obtain insurance through Healthcare.gov.
The underlying arguments of the plaintiffs are deeply flawed. A reading of the entire statute and its legislative history makes clear that Congress intended to make these tax credits available in all states.
More than 30 friend-of-the-court briefs make this very argument. In one brief, the members of Congress who wrote the law say that they never intended the assistance to be limited to state-run marketplaces. In another brief, 22 states argue they were never notified that the availability of tax credits could be restricted based on the type of marketplace a state had. Were there such a restriction, the Constitution would require that they know of it,
The real issue: Millions of consumers would lose their health insurance
However, the legal arguments belie the true debate behind this case: Should millions of consumers be denied affordable health insurance? Consumers are often overlooked in the legal wrangling over King v. Burwell.
For example, Lori Z. of Rosendale, Wisconsin, is recovering from breast cancer. She is also a small business owner. Before the ACA’s premium tax credits were available, money was tight, but she still had to decline some big business orders because she was undergoing treatment. Once she became eligible for tax credits, which save her $230 in monthly premiums, she could focus on her company. Lori told us, “Having the subsidy gave me peace of mind so that I wasn’t living from paycheck to paycheck. Now I’m able to invest in my own business again.”
David Tedrow, who lives in Durham, North Carolina, is also grateful for the ACA’s premium tax credits. Without them, he wouldn’t be able to buy health insurance. David is a liver transplant survivor and, before the ACA was passed, he was in danger of losing his place on the transplant list because of the cost of insurance. He still has to pay for expensive medication.
In a column for The Washington Post, he wrote: “Bottom line, without insurance and the subsidy I would simply die, because I could not afford my drugs and my body would reject my liver.”
Families USA is helping spread the word about stories like these, and we invite you to check out our interactive video here.
Ben D’Avanzo is government affairs associate and Claire McAndrew is private insurance program director for Families USA.
On Monday, the Supreme Court heard argument in a prisoner civil rights case, Coleman-Bey v. Tollefson. The issue under review is how best to interpret the “three-strikes” provision of the Prison Litigation Reform Act (PLRA). This statute, passed in 1996 as part of the Newt Gingrich “Contract with America,” sharply limited court access for prisoners in myriad ways. Coleman-Bey is a small case, relevant to very few prisoners and very few cases. It’s about a stand of trees in a pretty big forest. The forest-level summary is that the PLRA has cut the civil rights litigation rate per prisoner by more than half since 1995. The federal courts are playing a far lesser role in remedying prisoner civil rights violations than they used to.
Here’s the key chart, taken from one of my articles (and shared with the Supreme Court in an amicus brief on behalf of several dozen professors, including me). It shows the steep drop in federal civil rights filings per prisoner in the late 1990s, and the plateau since. I have argued that even at prisoner litigation’s peak, what people used to call the “flood” of prisoner lawsuits was, in actuality, a flood of prisoners. But whether or not you agree, it’s clear that the flood has abated:
Coleman-Bey deals with 28 U.S.C. § 1915(g), part of the federal in forma pauperis statute, which governs when filing fees are waived. Most indigent plaintiffs in federal court are exempt from the filing fee—currently $400 in district court, $500 in the courts of appeals. However, prisoners are different; even if they qualify as indigent (as most do), they are nonetheless required to pay the full amount of filing fees, over time, with the money levied from their prison account. This is the same account prisoners use to pay for postage, hygiene items, extra food, and the like. So where in forma pauperis status for a non-prisoner exempts that plaintiff from certain expenses, the same status merely allows a prisoner to avoid pre-payment of fees, but not the fees themselves.
In the provision at issue in Coleman-Bey, Congress further clamped down on prison litigation. Even the limited payment-but-no-prepayment version of in forma pauperis status is not available to prisoners who are deemed too-frequent, and too-unsuccessful litigants. The statute provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [that is, in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
Thus prisoners are allowed three “strikes” – dismissals of an action or appeal on the grounds that it is frivolous, malicious, or fails to state a claim – before they are barred from the watered-down version of indigent court access otherwise available to them.
The issue in Coleman-Bey is whether a district court’s dismissal of a lawsuit counts as a strike while that dismissal is still pending on appeal. Eight circuits have sided with the prisoner and said no; the Sixth and Seventh Circuits have taken a stricter view.
I’m not going to recap the Supreme Court oral argument at any length: Steve Vladeck does a terrific job of that over on SCOTUSBlog. As he explains, members of the Court seemed to find the statutory language ambiguous on this point, and seemed concerned about the consequences of ruling for the prisoner. A prisoner who just incurred his third strike in the district court would have a kind of “use it or lose it” moment, a couple of the justices worried out loud, while that order was pending on appeal, and might therefore file lots of cases.
What I want to add here is some strenuous skepticism about this concern. Just in the abstract, it seems highly unlikely that a prisoner with a pending third strike would think of the pending period as a free window for additional frivolous filings. After all, the prisoner would eventually have to pay a full filing fee for each filed case.
And experience confirms the point. As the amicus brief cited earlier argued, there is no sign at all that the circuits where a dismissal has been counted as a PLRA “strike” only upon appellate finality experienced higher rates of prisoner litigation after adopting that rule than before. Conversely, the Seventh Circuit did not experience a drop-off in prisoner lawsuits after adopting the anti-prisoner rule.
Here’s the data on filings per 1,000 prisoners, by circuit, from 1990 to 2012 (the latest year for which filings data are available):
7th Circuit: Anti-Prisoner Rule
Other Circuits (Pro-Prisoner Rule Announced before 2011):
The point is, there’s really no reason to be worried about the impact on court dockets of the mildly pro-prisoner rule urged by the plaintiff in Coleman-Bey. If anything, the worry should be that indigent prisoners’ obligation to pay $400 to vindicate their civil rights might deter them from seeking such vindication.
Margo Schlanger is the Henry M. Butzel Professor of Law at the University of Michigan, and the founder and director of the Civil Rights Litigation Clearinghouse. Follow her on twitter at @mjschlanger.
The Supreme Court will hear oral arguments tomorrow in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., a case testing the rights of job applicants who need a religious accommodation from their would-be employer.
The plaintiff is a 17-year-old Muslim woman, Samantha Elauf, whose job offer to work at an Abercrombie & Fitch store in a mall in Tulsa, Oklahoma was revoked when managers discovered that she intended to wear a religious headscarf while at work. Doing so, they said, would violate the corporate “look policy” for employees.
A federal district court ruled in Samantha’s favor, finding that she had been subject to illegal discrimination because of her religion in violation of Title VII of the Civil Rights Act of 1964, the federal statute that bars employment discrimination. The Tenth Circuit Court of Appeals, however, reversed this ruling. It found that, even though she had worn her hijab to the job interview, she had not explicitly told Abercrombie that she wore a headscarf for religious reasons and expressly requested an accommodation under Title VII. The Tenth Circuit’s ruling on this issue differed from other federal appeals courts, which have found that the notice element of a plaintiff’s prima facie claim is met if the employer has actual knowledge of a job applicant’s religious practice even if an express request for an accommodation is not made.
The particular issue raised on appeal in the Supreme Court is not the underlying substantive one of whether Samantha has the right to an exception from Abercrombie’s dress policy for religious reasons under Title VII, though her case is a strong one. Employers are required to “reasonably” accommodate an employee’s religious practices, meaning that they must do so when it does not impose an “undue burden” on them. The expense associated with allowing an employee to wear a headscarf (i.e. the harm created by a slight deviation from its dress code) is minimal, and her practice would not impose on burden on her co-workers.
In this case, however, the Supreme Court is considering the narrower issue of whether “explicit notice” should be required. Samantha did not expressly request an accommodation in part because she had no idea she would need one. After all, it is employers, not job applicants, who know what corporate policies the employer has established governing employees. How was she to know that she would need an exception to a rule that she didn’t know even existed?
For that matter, how can Abercrombie plead ignorance of Samantha’s need for an accommodation that was as plain as the scarf on her head?
As the Supreme Court hears arguments, the justices should focus on the difficult situation that job applicants would be placed in if it adopts the Tenth Circuit’s explicit notice rule. In a job interview, a moment when the employer has the upper hand, an applicant should not be forced to raise the issue of a need for special treatment. Employers would be tempted simply to hire someone without any such needs, leading to increased illegal discrimination against religious minorities.
The Supreme Court should not permit an employer to discriminate against a job applicant on the basis of her religion without legal consequence just because the applicant does not expressly state her need for a religious accommodation and is unaware of employer policies that would require it. When an employer actually knows someone will need an accommodation, the applicant should not be punished for failing to say the right magic words.
William Burgess is the Senior Staff Attorney at the Council on American-Islamic Relations, which filed an amicus brief with the Supreme Court in this case in support of the EEOC. CAIR’s Oklahoma chapter assisted the plaintiff in this case in preparing her complaint to the EEOC.
CAIR is the largest American Muslim civil rights organization in the country, dedicated to protecting the civil rights and liberties of all Americans and fostering a greater understanding of Islam in the U.S.
As part of Alliance for Justice’s ongoing campaign to end forced arbitration in consumer and employment contracts, we’ve worked with a host of grassroots organizers across the country. Students, community members, academics, and attorneys have reached thousands by screening AFJ’s short documentary, Lost in the Fine Print. Long-time friend of AFJ Patti Gorman planned one such screening as part of Conversations on Social Justice Series at Seattle Central College.
We asked Gorman to talk about her experience organizing a screening of Lost in the Fine Print. Responses have been edited for space and clarity.
What interested you about the issue of forced arbitration?
I was totally unaware of it and appalled when I found out about it. How can we be forced to sign away rights that are guaranteed by law? This is a true social justice issue and another indicator of how corporations unduly influence government and our daily lives.
Had those who attended the screening heard of forced arbitration clauses before? Most had not, I believe, probably because they are young students and because many are international students.
Why did you feel students at Seattle Central College needed to see this film? Why did you take on the project of organizing a screening yourself?
The college’s student and staff population is diverse and activist. I just knew this topic would interest them … I took on the organizing because I am an organizer and it comes pretty easily and because I had wonderful support from our librarians, who sponsor these noon time programs.
In addition, I had looked over the online materials created by AFJ, which are excellent, and received lots of support from [AFJ Klagsbrun Fellow] Erik Lampmann. I was a bit nervous at one point about being knowledgeable enough. But once I read the online materials, including links to more detailed court case info, and when I knew I would have a local attorney presenting with me (arranged by Erik), I knew it would be a piece of cake, which it was.
After watching Lost in the Fine Print, how do you hope others will take action to fight forced arbitration?
We need to put pressure on our elected officials to uphold our constitutional rights; hold the Supreme Court accountable, if we can, for upholding the Constitution and not overstepping its bounds into the other branches of government; keep raising hell about this issue, through class actions, when possible; and VOTE!!! I also think that if enough people struck out and initialed the contract clauses that infringe upon their rights when signing contracts, companies would finally get the message that people aren’t going to stand for their outrageous behavior. Of course, I hope many more people will use resources such as Lost in the Fine Print to educate others.
What would you say to others thinking about screening Lost in the Fine Print on their campuses or in their communities?
The whole process from preparation to implementation was fun, intellectually stimulating and very satisfying.
How did you first get involved with Alliance for Justice? What interested you about AFJ’s approach to social change?
I first heard about it from Nan Aron, a friend and former classmate (since 6th grade!). I have always been an activist for social justice. I find AFJ’s approach to helping non-profits be better at what they do [through the Bolder Advocacy initiative]… a compelling strategy—micro to macro. And now, when I see what our Supreme Court is doing that chips away at our Constitutional rights, I believe more than ever that the courts are where we need to put our attention. AFJ works hard and smart.
The librarians of Seattle Central College have graciously uploaded video of the event to their website.
If you would like to organize a screening on your campus or in your community, please contact Erik Lampmann at firstname.lastname@example.org or by phone at 202.464.7388.
In an interview with Iowa Public Radio, shortly after being named chair of the Senate Judiciary Committee, Senator Chuck Grassley, R-Iowa, said, “I have no reason to believe that the future is any different” for the committee.
He was right. Even with Senator Grassley as chair, Republican obstructionism continues in the Senate Judiciary Committee.
In a previous edition of Benched!, we explained how, when Democrats controlled the Senate, Republicans would routinely and needlessly “hold over” judicial and executive nominees rather than allowing the committee to vote at the first opportunity. This procedural tactic, normally reserved as a courtesy to senators who need more time to examine a candidate’s record, allowed Republicans to take an extra week before sending nominees to the Senate floor.
But now it’s the Republicans, not Democrats, who are setting the committee schedule. And while it might be reasonable in some cases for the minority party to need more time on a nominee, it is plainly a pretext for the majority party to claim it needs more time than it has given itself. Paul Gordon at People for the American Way explained this yesterday, writing that today we would find out “whether Republicans will continue one of the indefensible forms of obstruction that they engaged in for six years while in the minority.”
This morning, we got our answer. Without explanation, Senator Grassley held over the nominations of four federal judges and Attorney General nominee Loretta Lynch.
All four of the judicial nominees are uncontroversial. They would fill district court seats in Utah and Texas, and have the support of their home-state Republican senators on the committee. Lynch has the support of many Republicans on the committee, including Senator Lindsey Graham (R-S.C.), who told reporters “I’m ready to vote.”
For no apparent reason, Texans will now have to wait an extra week until two vacancies deemed “judicial emergencies” by the U.S. Courts—seats that have been empty for over 700 days each—will be filled. The country will have to wait an extra week for a new attorney general, whose confirmation has already taken the longest of any attorney general nominee in the past 30 years.
Republican obstructionism stays the same.