House v. Burwell and the Cost-Sharing Catastrophe

by Deborah Steinberg

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Photo of U.S. Capitol Building, available here

Before there was “Repeal and Replace,” there was House v. Burwell.[1] In 2014, the U.S. House of Representatives filed a lawsuit against the Democratic administration in the U.S. District Court for D.C. for allegedly failing to implement several provisions of the Affordable Care Act (ACA).[2] A simple majority of Republican Representatives passed a House Resolution giving Speaker Boehner the authority to sue the Executive Branch to commence the litigation,[3] which is currently on hold at the appellate level.[4] Rejecting the majority of the allegations, the district court ruled in favor of the House of Representatives on its claim that the Obama administration was unconstitutionally funding the ACA because the House never appropriated certain payments.[5] The Court critically erred both in granting standing to the House and in denying the administration’s motion for summary judgment, and in so doing violated judicial precedent and the Constitution.[6] Consequently, the House Republicans could prevent lower and middle-income Americans from obtaining their entitlements provided under the ACA.[7] The lawsuit demonstrates the Republican effort to sabotage the ACA without the fear of political accountability while simultaneously creating additional barriers to the accessibility of affordable healthcare.

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On-call is Being Called Off: Attorneys General Inquiry Leads Several Retailers to End On-Call Scheduling

By Rachel Deitch

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Photo available here

In 2016, eight state attorneys general, including the attorney general for the District of Columbia, launched an inquiry into several retailers’ “on-call” scheduling practices.[1] When retail workers are assigned to on-call shifts, they must call their employer an hour or two before a potential shift to learn if they should appear for work.[2] The attorneys general sent letters to the companies, and requested information and documents.[3] Several news outlets covered the investigation, highlighting the negative effects on-call scheduling has on employees.[4] In response, six companies, including Disney and Aeropostale, agreed to stop using on-call scheduling.[5]

On-call scheduling can have a negative impact on employees despite its popularity among employers. Retailers use on-call scheduling because they can adjust their staffing based on the amount of store traffic, [6] and address unexpected staff absences.[7] However, the attorneys general argue that on-call scheduling has a negative financial impact on employees because it creates unpredictable work schedules. If employees are not assigned to work, they receive no compensation and may have already paid for unnecessary childcare.[8] Employees who keep their days open are also unlikely to obtain other work to make up for the shortfall.[9]

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In Memoriam: E. Clinton Bamberger Jr. (1926-2017)

by Brendan Kearney

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From left to right: Clinton Bamberger, Author’s sister, Author’s mother. Photo provided by Author.

Growing up in Baltimore, I attended Corpus Christi, a liberal outpost of the Catholic Church led during my childhood by a nun and then by a former Federal Communications Commission lawyer turned priest. After Mass, my mom would chat with other parishioners, and one of her favorites was a kindly older gentleman named Clinton Bamberger L’51. I liked him, too: he had an easy manner, spoke slowly and deeply, and one day, taught me a “secret” handshake, my memory of which he tested each time we crossed paths. I’m not sure where it came from, but the sequential combination of handholds and gestures made me feel like I had a special bond with an important man.

Over the years, my mom told me about things Mr. Bamberger had done, like help run the Legal Services Corporation and travel the world teaching law. I remember Mr. Bamberger himself telling me about his time at Piper & Marbury, when it was only a dozen or so lawyers, a far cry from the international behemoth DLA Piper is today. I came to understand that Mr. Bamberger had lived a full and admirable life. But I didn’t grasp the full measure of it until he died last month.

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Section 8: Museum Square and the Future of Affordable Housing in D.C.

by Lisa M. Thomas, Ph.D.

In this blog post, Staff Editor Lisa Thomas discusses how redevelopment can affect the District’s most vulnerable residents. For more on affordable housing in Washington, D.C., check out Katherine Hannah’s recent Note, Carrying Out the Promise: How Shared Equity Models Can Save Affordable Housing, on WestLaw and Lexis.

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Photo by Staff Editor Lisa Thomas

The area around Washington, D.C.’s Convention Center is a model for new development, but it also exemplifies the issues that some of the city’s most vulnerable residents are facing. Cranes appear in all directions, including the six-block area known as Mt. Vernon Triangle. Old and abandoned buildings are quickly being replaced with hotels, luxury apartments, stores, and restaurants. Museum Square, however, stands out as an exception to the new rule; currently, it is Section 8 housing on the corner of K Street NW and 4th Street NW. Many of its residents are Chinese, elderly, low income, and non-English speaking—factors that have disadvantaged them when negotiating to keep their homes.[1] The tenants at Museum Square comprise half of the remaining Chinese population in the neighborhood, just a few blocks north of Chinatown.[2]

In 2013, the owner of the Museum Square apartment building, the Bush Companies, declared that it was not going to renew the Section 8 agreement it had with the U.S. Department of Housing and Urban Development, which subsidizes the tenants’ rent.[3] In June 2014, Bush informed tenants that they could purchase the building; otherwise, the developer planned to construct two new buildings there—one with fourteen stories of apartments and another with thirteen stories of condominiums.[4] The project would also include four levels of underground parking and 17,000 square feet of retail space.[5] The residents tried to exercise their right to purchase the property, which Bush claimed would cost them $250 million.[6]

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An Unlikely Alliance: Jeff Sessions, the Working Poor, and the Civil Rights Division

by Cecilia Aguilera

Jeff Sessions Official Photo available at http://www.sessions.senate.gov/public/index.cfm/official-photo

Jeff Sessions Official Photo, available here

Much has been made about the future of the Civil Rights Division following the nomination of Senator Jeff Sessions to be Attorney General, as advocates continue to raise concerns about his civil rights record.[1]  Still, others have presented a complicated portrait of the nominee.  According to one witness at Sessions’ confirmation hearing, “[n]o one has been more committed or engaged than Senator Sessions in protecting and promoting the interests of black workers in America,” who have been especially susceptible to “los[ing] jobs or hav[ing] their wages reduced.”[2]  Further, Sessions “positions himself as a champion of the working class and expounds . . . a belief that the world is divided between working people and elitist ‘masters of the universe[.]’ . . . ”[3]  As Attorney General, Sessions will find in the Civil Rights Division a formidable tool for protecting the interests of the working poor, and should use the Division to target practices that commercialize the criminal justice system.  Of particular concern should be modern-day peonage practices taking root in some jurisdictions.

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How a Billionaire President Could Impact the Working Class

by Desiree Tims

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President Donald Trump Official Photo, available here

On November 8, 2016, the United States elected its forty-fifth President of the United States.[1] The historic presidential election of Republican Nominee, Donald J. Trump, who is a real-estate billionaire, sparked a national debate between those who support and oppose him due to his divisive campaign rhetoric and political inexperience.[2]

Polling data revealed that Trump received an overwhelming amount of support from working-class white voters.[3] Trump’s thematic “Make America Great Again” slogan was followed by his campaign promises to reinforce law and order, restrict immigration and reduce taxes.[4] Trump has many working-class supporters—some who yearn for the return of high-paying hourly factory jobs—as well as high-income supporters who deeply desire a change to the federal tax code.[5] Furthermore, Trump’s self-declaration as the “law and order candidate” has fueled the debate on criminal justice reform, racial disparities, and equitable application of law.[6]

President-elect Trump’s impact on working-class Americans remains to be seen, but here are three issues that could come to bear during his time in office:

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Forty Years of Restrictions on the Health-Care Rights of Low-Income Women

By Kate Vlach

September 30 marks the fortieth anniversary of the passage of the Hyde Amendment, a provision that has drawn a line between rich and poor when it comes to the constitutionally protected right to abortion.[1] Named after its main proponent, Rep. Henry Hyde, the Hyde Amendment bans federal Medicaid dollars from paying for abortion services in almost all cases.[2] The law’s practical effect means that women with financial resources have the right to choose when and whether to become parents, while women in poverty are left with a right in name only. If a low-income woman cannot afford the cost of an abortion procedure, she is denied a meaningful choice about whether to carry a pregnancy to term.

Medicaid is a publicly funded insurance program designed to meet the health needs of those who cannot afford medical care.[3] Yet, in Harris v. McRae, the Supreme Court held that Congress could exclude medically necessary abortion services from the Medicaid program under the Hyde Amendment.[4]According to the Court, this categorical denial of health services did not violate the Constitution because the freedom to choose does not come with “a constitutional entitlement to the financial resources to avail [one]self of the full range of protected choices.”[5]  It reasoned that “although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category.”[6]

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Advancing Justice Through Social Professionalism

by Mina Dixon Davis

Yelp, the cheery one-stop shop for restaurant and other crowd-sourced reviews, was in 2014 the “most popular and trusted website for legal reviews.”[1] But for prospective litigants in the lowest income bracket, affordable representation might as well be off the menu.[2]

Efforts to increase access to justice have been incremental, according to Richard Zorza, Founder and Coordinator Emeritus of the Self Represented Litigation Network.[6] Zorza joined other stakeholders at the Georgetown Journal of Legal Ethics 2016 Symposium: Remaining Ethical Lawyers in a Changing Profession[7] to discuss how trends like online rating tools and commercialization bear on access to justice concerns.

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What Go Set a Watchman Can Teach Us

by Claire Chevrier

Trayvon Martin was killed by a man with multiple gun-related arrests who now makes his living painting Confederate flags.[1]  Mike Brown was shot by a police officer for allegedly stealing a box of cigarillos.[2]  Eric Garner was killed in front of all of us for selling loose cigarettes.[3]  Sandra Bland died in jail after a routine traffic stop.[4] Corey Jones was killed by a plain-clothed, rookie police officer who shot him while he was pulled over with car trouble.[5]  And Barack Obama is our president, perhaps creating a false collective “one Black friend,” thereby allowing implicit biases to bubble up where they were previously suppressed.

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The Community Eligibility Provision: A Fresh Solution to Hunger in Poverty-Stricken Schools

by Jacob Woodward

The Community Eligibility Provision, or CEP, was established in 2010 under the Healthy, Hunger-Free Kids Act of 2010.[1]  CEP is a new program designed to reduce the number of hungry students in high-poverty schools. Starting in the 2011-2012 school year, the CEP began to be phased into certain schools.[2]  2014-2015 was the first school year of national availability for the initiative and garnered the participation of over 14,000 high-poverty schools.[3]  That represents about half of the schools that are eligible to participate in the CEP, and one out of ten schools in the nation.[4]  Over 2,200 school districts – one in seven – have adopted the provision, resulting in more than six million children having access to two healthy meals a day.[5]

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