Weekly Roundup 7/2/2012

Education for Homeless Children and Youths Program: Data Collection Summary
U.S. Department of Education, June 2012

Homeless Students Top 1 Million, U.S. Says, Leaving Advocates 'Horrified'
Saki Knafo and Joy Resmovits, Huffington Post, June 28, 2012

Synopsis: In the 2010-11 school year, over a million homeless children and teens were enrolled in U.S. schools, up 57 percent from 2007.

Takeaway: "Only 52 percent of the homeless students who took standardized tests were deemed to be proficient in reading, and only 51 percent passed math tests. 'It sets you far behind. It's socially and emotionally disruptive,'” said Barbara Duffield, policy director for the National Association for the Education of Homeless Children and Youth."

For more, see our reports on "Fixing Urban Schools" (April 27, 2007 - updated June 5, 2012) and "Child Poverty" (Oct. 28, 2011).

-- Marcia Clemmitt, Staff Writer

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A Snitch’s Dilemma
Ted Conover, The New York Times Sunday Magazine, July 1, 2012

Synopsis: This fascinating in-depth report on the life of police informant Alex White is better than any TV police drama – and twice as shocking.

Takeaway: White was making good money helping the police make drug cases, but his life turned upside down when “dirty” cops asked him to help them cover up an illegal shooting.

For background see the CQ Researcher report "Police Misconduct" (April 6, 2012).

-- Thomas J. Colin, Contributing Editor

Supreme Court Blurred Ideological Line in Momentous Term

By Kenneth Jost
Supreme Court Editor, CQ Press

The Supreme Court ended its 2011-2012 term by defying conventional wisdom and its own predominantly conservative orientation with rulings that gave President Obama important victories on health care and immigration. Even before the final week, however, the court’s record for the term gave liberals as much to like in some respects as conservatives, if not more.

Liberal justices were in the majority in all but one of the cases selected by CQ Press as the 10 most important of the term. The exception was a 5-4 ruling split along the usual conservative-liberal fault line that permits jails to strip search minor offenders. (See table below.)

Civil liberties and criminal defense groups are counting victories in half a dozen significant rulings that strengthened constitutional protections in police investigations and criminal trials and potentially lowered sentences for some offenders. Among those decisions was the 5-4 ruling in the court’s final week that barred states from imposing mandatory life imprisonment without possibility of parole on juvenile murderers.

First Amendment advocates counted a win with the 6-3 ruling on the court’s final decision day that struck down the federal Stolen Valor Act, which had made it a crime to lie about having received the Medal of Honor. Earlier, the court had blocked the Federal Communications Commission (FCC) from sanctioning the Fox and ABC television networks for programs that included brief vulgarities or adult nudity.

The court did not change its ideological spots completely. In its final week, the court summarily struck down a Montana law banning independent campaign expenditures by corporations. The 5-4 decision turned aside a plea by liberal justices to reconsider the 2010 decision in Citizens United v. Federal Election Commission that gave corporations and unions a First Amendment right to spend money in political campaigns.

The term’s litigation-related rulings also continued the court’s general trend under Chief Justice John G. Roberts Jr. of narrowing remedies for plaintiffs for injuries from violations of federal or state laws. Two five-vote decisions divided along conservative-liberal lines prohibited damage suits against state governments for violating the federal Family and Medical Leave Act and barred recovery for emotional or mental distress for violations of the confidentiality provisions of the federal Privacy Act. 

Roberts, a Republican now completing his seventh court term as chief justice, cast the decisive vote in the two most important rulings of the court’s final week. His vote with the four liberal justices to save Obama’s health-care reform law elated Democrats and left many Republicans and conservatives spitting mad. He joined three liberals and Justice Anthony M. Kennedy, the more usual swing vote on the court, in striking down on federal preemption grounds major parts of Arizona’s immigration enforcement law known as S.B. 1070.

The health-care and immigration decisions were qualified victories for Democrats and liberals. Roberts’ pivotal opinion in the health care ruling, National Federation of Independent Business v. Sebelius, rejected the administration’s principal argument for upholding the individual health insurance mandate; he voted with the liberals, however, to uphold the provision not as Commerce Clause regulation but as a tax. In the immigration decision, Arizona v. United States, the court unanimously upheld the so-called “Show Me Your Papers” provision requiring police to verify a suspect’s immigration status if they reasonably believe someone stopped or arrested is in the country illegally.

The criminal law rulings also included some significant qualifications, but overall they represented substantial gains for suspects and defendants. The 5-4 ruling on juvenile murderers stopped short of a categorical ban on life-without-parole sentences. Writing for the majority, however, Justice Elena Kagan suggested that such sentences should rarely be imposed.

Kennedy provided the critical fifth vote for the liberal bloc in the juvenile sentencing case and in three other closely divided criminal law rulings. Two of the decisions strengthened the right-to-counsel requirement for defendants during plea bargaining; the third reduced prison terms for crack cocaine defendants sentenced after Congress lowered penalties in 2010. Roberts and fellow conservatives Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. dissented.

The justices divided 6-3 across ideological lines in a late June ruling that requires juries, not judges, to make factual findings needed to raise criminal fines. Roberts was in the majority in the ruling, which set aside an $18 million fine for a corporate polluter; the dissenters were Kennedy, Alito and liberal Stephen G. Breyer.

Earlier, the justices were unanimous in a decision in a major drug case that limits the ability of police to use GPS tracking to surveil suspects.  The eventual impact is unclear, however, because the justices divided 5-4 across ideological lines on the legal basis for the ruling.

The impact of the ruling on the FCC indecency policy is also unclear. The decision rejected the FCC’s appeal to reinstate the sanctions against the two networks but without ruling on the constitutionality of the policy. Justice Ruth Bader Ginsburg urged the FCC to rethink the policy, but in a separate case Roberts later said the FCC’s power to censure networks for “fleeting expletives” or “fleeting images” of nudity is “clear.”

Similarly, the 6-3 ruling striking down the Stolen Valor Act left it up to Congress to consider rewriting a narrower law. Kennedy wrote the main opinion, but in a significant alignment for future First Amendment cases Breyer and Kagan joined on narrower grounds.

In a significant freedom-of-religion case, the court unanimously ruled that churches or other religious organizations are exempt from anti-discrimination laws in the hiring of clergy or anyone who performs ministerial functions. The decision turned aside a disability-rights case brought by a teacher at a religious school in Minnesota.

Paralleling Roberts’ occasional breaks with the conservatives, the court’s newest justices – Kagan and Sonia Sotomayor – parted company with the senior liberals Ginsburg and Breyer in some cases. But several observers remarked on the surprising number of unanimous decisions, some in significant cases. As one example, the court unanimously allowed property owners to challenge an Environmental Protection Agency compliance order in court before enforcement.

Table 1-1: Major Cases: U.S. Supreme Court, 2011—2012 Term

CQ Press each term selects the major cases for the Supreme Court’s term. The selection is based on such factors as the rulings' practical impact; their significance as legal precedent; the degree of division on the Court; and the level of attention among interest groups, experts, and news media.
Name of Case	Vote	Holding
National Federation of Independent Business v. Sebelius	5-4	Upholds Affordable Care Act; narrows enforcement of Medicaid expansion
Arizona v. United States	5-3	Strikes three parts of state immigration law; allows immigration status checks (8-0)
Miller v. Alabama	5-4	Bars mandatory life-without-parole sentence for juvenile murderers
Lafler v. Cooper; Missouri v. Frye	5-4	Strengthens effective-assistance-of-counsel requirement at plea bargaining stage
United States v. Jones	9-0	Defines extended GPS tracking of suspect’s vehicle as search for Fourth Amendment purposes
Southern Union Co. v. United States	5-4	Requires jury finding beyond reasonable doubt of facts needed to raise criminal fine
United States v. Alvarez	6-3	Strikes down federal Stolen Valor Act on free-speech grounds
Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC	9-0	Exempts religious organizations from anti-discrimination laws in hiring of clergy
Florence v. Board of Chosen Freeholders of Burlington County	5-4	Allows jails to strip-search minor offenders
FCC v. Fox Television Stations, Inc.	8-0	Sets aside FCC order against TV networks for fleeting expletives, adult nudity
Here are some other especially noteworthy cases: American Tradition Partnership, Inc. v. Bullock (strikes down state law banning independent campaign expenditures by corporations); Coleman v. Court of Appeals of Maryland (bars damage suits against state government for violating Family and Medical Leave Act); Dorsey v. United States (applies lower sentences for crack cocaine to anyone sentenced after change in law); FAA v. Cooper (bars damages for mental/emotional distress for violations of federal Privacy Act); Knox v. Service Employees International Union (limits public sector union imposition of special assessment or agency shop fee increase); National Meat Ass’n v. Harris (strikes down California slaughterhouse-regulation law on preemption grounds); Perry v. New Hampshire (limits rules against use of suggestive eyewitness identification in criminal trials); Sackett v. EPA (allows pre-enforcement challenge of EPA compliance order); Williams v. Illinois (eases rule on DNA profile evidence in criminal trials).

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Health Care Law Upheld in Fractured Court Ruling

By Kenneth Jost
Supreme Court Editor, CQ Press

President Obama’s health care overhaul survived a Supreme Court showdown largely intact on Thursday even as a majority of justices rejected the rationale for its central provision, the individual health insurance mandate.

By separate 5-4 votes, the court upheld the Affordable Care Act’s individual mandate as a tax provision even as a different majority declared that Congress exceeded its Commerce Clause power by requiring individuals to buy health insurance if they did not want to do so.

In a separate, also fractured, ruling, the court upheld the act’s major expansion of the joint federal-state Medicaid health insurance program for the poor, but limited the possible penalty for states that decide not to go along with the change.

A seven-justice majority said the act’s provision withholding all Medicaid funding from any state that did not agree was unconstitutionally coercive on the states. But five justices ruled that the Medicaid expansion could go forward if non-participating states forfeited only the additional federal funds for covering individuals with incomes up to one-third above the federal poverty line.

The court’s ruling gave Obama a victory of sorts on a law whose most controversial provision — the individual mandate — is not set to take effect until 2014. Some popular provisions, such as family coverage for children up to age 26, have taken effect. Congress gave the bill final approval in March 2010 on the strength of a Democratic majority in both the House and the Senate; Republicans gained control of the House in November 2010 in part by capitalizing on opposition to the mandate and vowing to try to repeal the law in its entirety.

Chief Justice John G. Roberts Jr. delivered the decision in the court’s final session of the term in an opinion that no other justice joined in toto. Four conservative justices led by Anthony M. Kennedy joined Roberts in rejecting the individual mandate as a way to regulate how to pay for health care. But the conservative bloc dissented from the decision calling the provision a tax penalty and upholding it on that ground. Four liberal justices led by Ruth Bader Ginsburg argued that the individual mandate was constitutional as an exercise of Congress’s power to regulate interstate commerce but went along with Roberts in upholding the provision as an exercise of Congress’s taxing power.

Both Kennedy and Ginsburg read major portions of their dissents from the bench, an occasional step for a justice to emphasize his or her disagreement. The courtroom was silent for virtually the entire 50-minute session even as hundreds of noisy demonstrators massed outside the Supreme Court plaza carrying placards either supporting or opposing the health care law.

The court’s decision in National Federation of Independent Business v. Sebelius, available here, challenged understanding as Roberts announced it. The law appeared to be doomed as Roberts described the individual mandate as an unprecedented requirement to force individuals “to become active in commerce” in order to regulate their conduct. But in what Kennedy aptly described as “a pivot,” Roberts went on to rule that the act’s enforcement provision – section 5000a – was within Congress’s power as “in effect a tax on those who do not have insurance.”

Roberts similarly seemed set to dispose of the Medicaid expansion after describing the threatened withdrawal of all funds from non-participating states as “a gun to the head.” But he reversed direction to say that the expansion is valid if the penalty is limited to the loss of new funds. The government pays 100 percent of the expanded coverage, with its portion declining to 90 percent by 2020.

The dissenters — in an opinion listed as jointly authored by Kennedy and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — said they would have ruled the law invalid in its entirety. Kennedy mocked the majority’s decision to uphold the mandate on terms that both Congress and Obama repeatedly disclaimed. “What Congress calls a penalty the Court calls a tax,” Kennedy said.

Kennedy similarly criticized the majority’s rewriting of the Medicaid provision. The ruling, he said, “leaves states with no reasonable choice but to” agree to the expansion of the program.

Ginsburg spoke for herself and the other three liberal justices — Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — in arguing for upholding the mandate as economic regulation. The provision, she said, amounted to a requirement to “prepay for medical care through insurance.”
     
The liberal justices split on the penalty provision of the Medicaid expansion. Breyer and Kagan joined Roberts and the conservatives in striking down the penalty for non-participating states as too severe. Ginsburg and Sotomayor said they would have upheld the law as written but voted with Roberts, Breyer and Kagan to save it after narrowing the penalty for states that do not go along.
     
Unless repealed, the penalty for not buying health insurance is now set to go into effect on Jan. 1, 2014, starting at $95 or 1 percent of taxable income. The penalty would rise to $695 or 2.5 percent of taxable income in 2016, subject to cost-of-living adjustments in later years. The law exempts, among others, people with financial hardships or with incomes below the federal income tax threshold.

Weekly Roundup 6/25/2012

The Six Possible Supreme Court ‘Obamacare’ Outcomes
Brian Beutler, Talking Points Memo, June 25, 2012

Synopsis: For its highly anticipated ruling on the Democrats’ Affordable Care Act, the Court has several options, including “punt,” since the fee that the law imposes on those who decline to buy insurance – which is arguably a tax -- has not yet taken effect. A seldom mentioned but potentially highly troublesome option would be for the Court to strike down the requirement that states expand Medicaid – using mostly federal funds – to cover everyone with incomes up to 133 percent of the federal poverty line.

Takeaway: Beutler writes: “If the Court determines that the mandate [to buy insurance] violates the Constitution, it can ‘sever’ the mandate from the rest of the law….This outcome would leave it up to Congress and the states to deal with the ‘adverse selection’ problem — without a mandate…young and healthy people would avoid purchasing insurance until stricken by illness or injury, leaving older, sicker people in the risk pool. Premiums would spike and the market could ultimately collapse….[L]awmakers would be under intense pressure from the insurance industry to forestall the potential calamity.”

For more, see our reports on “Health Care Reform” (Aug. 28, 2009, and June 11, 2010 – updated May 24, 2011), “Universal Coverage” (March. 30, 2007) and “Rising Health Costs” (April. 7, 2006).

-- Marcia Clemmitt, Staff Writer

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Generation Gap Is Back
“Old vs. Young,” by David Leonhardt, “Sunday Review,” The New York Times, June 24, 2012

Synopsis: The Washington bureau chief of the Times argues that the economic and political generation gap between the young and those over 65 is growing.  Since about 2004, older voters began moving right, he writes, while younger voters shifted left. The young favor gay marriage and school funding more strongly than their elders, and they also are less religious, more positive toward immigrants, less hostile to Social Security cuts and military cuts and more optimistic about the country’s future.

Takeaway:  Younger Americans’ optimism is especially striking in view of the fact that the economic slump of the last decade has taken a much higher toll on the young, who are less  established in their working lives and are struggling both to get hired and to hold on to jobs. And the wealth gap between households headed by those over 65 and those under 35 is wider than at any point since the Federal Reserve Board began keeping consistent data in 1989.

For background see “The Partisan Divide” April 30, 2004.

--Kathy Koch, Managing Editor, CQ Global Researcher

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A Madman in Our Midst
Jeneen Interlandi, The New York Times Magazine, June 22, 2012

Synopsis: The author recounts her father’s tragic spiral through emergency rooms, psych wards and eventually jail as severe bipolar disease robbed him of his mental health.

Takeaway: In the end, her father’s mania begins to subside, and with the help of a defense attorney and an understanding judge, he returns to normalcy -- and to his wife and family. “And with therapy and medication, the final traces of his mania finally dissolved,” the author writes.

For background, see “Prison Health Care,” Jan. 5, 2007.

-- Thomas J. Colin, Contributing Editor

This Week’s Report: U.S. Oil Dependence

As drivers take to the road this summer, many may wonder why gasoline prices remain in the neighborhood of $3.50 a gallon when gas consumption is down nationally and the United States is producing more oil today than in more than a decade.

In this week’s report, veteran energy writer Jennifer Weeks examines the complex dynamics of oil production and pricing and addresses the question of whether the United States can break its dependence on foreign oil.

“Most mainstream economists say production decisions in the United States cannot affect world oil prices,” Weeks writes. Because oil is traded worldwide, geopolitical developments steer prices, and experts say “volatile energy costs are inescapable as long as America relies heavily on oil.”

Weeks’ report includes analysis of the proposed Keystone XL pipeline project, which would carry oil from so-called tar sand deposits in western Canada to refineries on the U.S. Gulf Coast. Advocates say the pipeline would generate jobs and make more oil available from a friendly ally. But environmentalists strongly oppose the project, arguing that it would consume huge amounts of water, create toxic waste and greenhouse gas emissions and damage Canadian forests and rivers.

This report is ideal for classes and papers in such disciplines as environmental science, energy policy, business, economics, geopolitics and consumer affairs.
 

--Thomas J. Billitteri, Managing Editor