Tuesday, June 3, 2014

For Better or Worse: SCOTUS Decision in Bond v. U.S. Points to the States

by Risa Kaufman

Yesterday, in Bond v. United States, the Supreme Court left intact Congress’ power to enact legislation implementing international treaties. Debate will certainly continue within academic circles over the scope of Congress’ authority to give domestic effect to ratified treaties, and indeed the federal treaty power more generally. But, for now, the upshot may be that the cloud has lifted on U.S ratification of the Disabilities Convention. And, post-ratification, U.S. human rights advocates should redouble efforts at the state and local level.

At issue in Bond was the federal government’s prosecution of Carol Bond under the Chemical Weapons Convention Implementation Act, which Congress enacted in 1998 to implement an international convention the U.S. ratified a year earlier. When Bond, a microbiologist, learned that her close friend was pregnant, and that Bond’s husband was the father, she spread toxic chemicals on the friend’s car door, mailbox and door knob. The federal government charged her with violating Section 229(a) of the Act, which makes it a federal crime “to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.”

Noting an ambiguity in the scope of the Act and relying on what it characterizes as the “well –established” principle that courts must find that Congress intended to override the traditional state/federal balance before construing an otherwise ambiguous statute, the Court found no “clear indication” that Congress intended for the Act to cover Bond’s “purely local crime.” (By the Court’s characterization, the federal prosecution involved “an amateur attempt by a jilted wife to injure her husband’s lover, which ended causing only minor thumb burn readily treated by rinsing with water.”) In doing so, the Court avoided ruling on the question of whether the Act itself violated constitutional federalism limits on Congress’ authority to enact legislation implementing a treaty touching on traditionally local concerns.

Aside from spawning a tide of critical blog posts and a generation of student notes, what might be the decision’s direct impact, particularly for U.S. human rights advocates? Perhaps most immediately, the U.S. Senate can move forward with U.S. ratification of the International Convention on the Rights of Persons with Disabilities (CRPD), a human rights treaty modeled primarily on the Americans With Disabilities Act. At the very least, Bond should no longer stand in its way.

The U.S. Senate failed to provide consent to U.S. ratification of the CRPD when it came to a full Senate vote in December 2012. Though sixty-one Senators voted in favor, the treaty did not gain the necessary approval of a 2/3rds majority. The Senate Foreign Relations Committee revisited the treaty at a hearing in November 2013. By odd coincidence, at the same time, across the street, the Supreme Court was holding oral argument in Bond. Naturally, the confluence placed the case at the center of the hearing, with some Senators suggesting that the Senate postpone consideration of the treaty until the Court issued its decision.

Supporters of U.S. ratification of the CRPD have collectively exhaled since the Court issued its decision in Bond. Hours after the decision was released, The Leadership Conference on Civil and Human Rights stated that “The Supreme Court today gave the Senate the green light to proceed with ratification of the Convention on the Rights of People with Disabilities (CRPD).”

But just how does Bond clear the way for the CRPD? Many proponents of the CRPD insist that U.S. ratification does not require implementing legislation, asserting that current law already brings the U.S. into compliance with the treaty. (To be sure, others are concerned that such insistence weakens the domestic impact of human rights treaties, and advocates’ future ability to draw on ratified treaties to strengthen rights protections within the United States.)

So, if the CRPD doesn’t require implementing legislation, what was the hold up? How does Bond clear the way? And, what might Bond mean for the prospects of other human rights treaties awaiting U.S. ratification?

Bond should assuage the concerns of human rights treaty opponents that U.S. ratification will lead to Congress running roughshod over the states in the name of implementation. While Bond may not put to rest entirely the question of the scope of the treaty power, or Congress’ power to enact implementing legislation (though it has been suggested that the question is unlikely to be put so squarely, or neatly, to the Court again anytime soon), Bond should provide some comfort for those concerned about federal overreaching through the treaty power and the Necessary and Proper Clause. The decision affirms the Court’s continued vigilance in preserving the federalism balance and prohibiting federal legislation that infringes on state jurisdictional authority.

Professor Oona Hathaway and colleagues have argued that “structural, political and diplomatic” factors prevent against federal overreaching through the treaty power. These include reservations, understandings, and declarations that the U.S. attaches to the human rights treaties it ratifies, the Constitutional requirement of a 2/3rd majority for Senate advice and consent to ratify a treaty, and the political process more generally. Now add to the list Bond’s requirement of a “clear indication” that Congress intends to override traditional state powers through federal legislation, including in the realm of treaty implementation.

In Bond, the Court sends something of a warning to Congress: “[T]he global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard.” (Opinion at 21.) The Court gave Congress the benefit of the doubt: “There is no reason to suppose that Congress – in implementing the Convention on Chemical Weapons – thought otherwise.” And Congress is on notice not to force the Court’s hand in the future.

All this federalism talk raises reflexive concern among U.S. human rights advocates. We’ve seen this before, in U.S. v. Morrison and other devastating curtailments of federal civil rights protections. Yet advocates can take some consolation that the Court’s resolute policing of Congress’ powers vis a vis the states may, in fact, be what saves U.S. ratification of core human rights treaties. And perhaps it motivates us to redouble our efforts at the state and local level once ratification is achieved. Ultimately, Bond may confirm what Justice Stevens noted in Medellin v. Texas: when it comes to upholding the U.S.’s international treaty commitments, sometimes state and local officials “must shoulder the primary responsibility.” For better or worse.

June 3, 2014 | Permalink | Comments (0)

SCOTUS Decision in Bond v. U.S.

The Supreme Court issued its long-awaited decision in Bond v. U.S. on June 2, 2014.  Briefly, the Court voted 9-0 against the legality of the Government's indictment of Ms. Bond, an angry wife who used chemicals to threaten and harm her erstwhile best friend and husband's paramour. The issue before the Court was whether Congress had the power to enact the underlying criminal statute, designed to deter use of chemical weapons, pursuant to its treaty power.  (The U.S. is a party to the international Convention on Chemical Weapons). In an opinion by Chief Justice Roberts, the majority of the Court did not reach the treaty issue, instead ruling that the statute should be construed narrowly to avoid the constitutional question, i.e., they concluded that Congress did not really intend to address chemical weapons of the type used by Ms. Bond, and that the chemical weapons statute did not therefore support her indictment. Three justices, Justices Scalia, Thomas and Alito, concurred in the judgment, but would have reached the constitutional issue, asserting that the indictment would fail because Congress's treaty power would not extend so far as to support the enactment of the chemical weapons statute. These justices, in separate opinons, directly questioned the scope of the Supreme Court's venerable 1920 decision in Missouri v. Holland, which upheld Congress's statutory regulation of migratory bird hunting as an exercise of its treaty power following a treaty with Great Britain/Canada.

Some immediate reactions to the Bond decision are already posted here, here and here.  The Human Rights at Home blog will be posting thoughts on the decision's implications over the next few days, so stay tuned. 

   

June 3, 2014 | Permalink | Comments (0)

Indiana's Flawed Medicaid Expansion Plan

Co-editor Fran Quigley reports from the front lines of the Medicaid expansion debate in Indiana.  To date, 26 states and D.C. (but not Indiana) have taken advantage of the Affordable Care Act's Medicaid Expansion provisions. The human rights implications of this issue were specifically addressed in the Supreme Court amicus brief of the Leadership Conference on Civil and Human Rights filed in Florida v. HHS.  Focusing on Indiana, Fran writes: 

For some time now, Indiana Governor Mike Pence has been presented with the opportunity to guarantee healthcare coverage to hundreds of thousands of Hoosiers. All he had to do was take advantage of the Affordable Care Act’s federally-funded incentives for Indiana to expand Medicaid.
 For many of our neighbors across the state, this is a life and death decision. Until this week, Pence has chosen the latter. 

A study published in May in the Annals of Internal Medicine reported that the 2006 expansion of health insurance in Massachusetts significantly cut the number of deaths from causes that health care could have remedied. A Harvard Medical School and City University of New York study estimates that as many as 750 Hoosiers will die each year because they do not have access to Medicaid, a number equal to the state’s annual traffic fatalities. 

It is an intuitive point, but one that has never been shown so conclusively: People die for lack of health insurance.

Last week, Governor Pence announced a proposal for Indiana to access Medicaid funding through a modified version of the Healthy Indiana Plan. For advocates from Cover Indiana, it was welcome news. The coalition of health care providers, religious groups, and business and labor organizations has presented Pence with 10,000 petitions in favor of Medicaid expansion and persuaded five Indiana city councils to pass resolutions with the same message. 

“We think it is a shame that we have gone this long without Medicaid expansion in Indiana,” says Alex Slabosky of Cover Indiana. “But this proposal is a very positive development.”

If approved by the federal government, Healthy Indiana Plan 2.0 would potentially cover as many as 350,000 low-income Hoosiers who currently are without health coverage. But it is not a perfect proposal, by any means.

When explaining his reasoning for blocking Medicaid expansion, Pence liked to say he prefers a health insurance system that requires Indiana’s poor to put more “skin in the game.” Pence’s metaphor refers to the Healthy Indiana Plan’s traditional requirement that the state’s low-income residents pay into a special account in order to access care. His new version keeps this requirement in place for some low-income Hoosiers, or replaces it with a co-pay requirement for others. 

But the governor never mentions there is good reason for avoiding a requirement that the poor pay up front for healthcare. Emergencies such as evictions, foreclosures, and criminal victimization, when paired with the no-room-for-error financial situations many Hoosiers face, often preclude low-income families from making payments, even when the payments are small and even when they are for essential items.

That includes health care. Careful studies, and the experiences of those of us who work with low-income families, show that a cash register at the door of the doctor’s office will be a barrier preventing many Hoosiers from getting the care they need. So it is not surprising that every state surrounding Indiana, including those with Republican governors like Pence, have chosen to expand Medicaid in their states. They did so without requiring premiums or co-pays from their poorest residents.

Congressman Andre Carson is among those who insist that following those governors’ lead is still the best approach for Indiana. “I have serious concerns that (the revised Healthy Indiana Plan) is an untested proposal that will still fail to provide critical health coverage to thousands of Hoosiers,” Carson said in a statement.  

But Cover Indiana advocates say that the flawed Pence proposal may be the best chance for low-income uninsured Hoosiers to get the care many of them desperately need. Every day in Indiana, blood pressure prescriptions go unfilled, pap smears are being missed, and dangerous diabetes symptoms are not addressed. All the while, our Governor and Indiana General Assembly leadership have shown no inclination to expand traditional Medicaid, suggesting that this daily suffering could continue for years on end.

“We are sitting here in 2014 without Medicaid expansion in our state,” says Alex Slabosky. “We would like to have a plan with no copayments and no premiums. But this proposal would put us in a far better place than we are now.

“We are moving in the right direction.” 

June 3, 2014 | Permalink | Comments (0)

Monday, June 2, 2014

School Segregation and the US CERD Review

As noted in an earlier blog, 2014 is the 20th anniversary of U.S. ratification of the CERD treaty. Co-editor Mariah McGill looks at the potential connections between the upcoming CERD review of the U.S. this August and the sobering data on school segregation generated in conjunction with the recent anniversary of Brown v. Board of Education.  Writes Mariah:

May 17th marked the 60th anniversary of the landmark Brown v. Board of Education decision that ruled segregated schools are unconstitutional.  To coincide with this anniversary, the Civil Rights Project at UCLA released a new report assessing the progress the United States has made in addressing school segregation 60 years after Brown.

The report finds that while there was marked progress in integrating U.S. schools in the first decades after Brown, that progress has stalled since the late 1980’s.  Although the United States has become a more racially diverse country than it was at the time of the Brown decision, with Latinos making up the largest minority group and in some parts of the country outnumbering whites, schools have become increasingly segregated in the same period.   School segregation is a problem across both urban and suburban school districts, in every region of the United States.  Schools in the Northeastern region of the United States are the most likely to be segregated by race while schools in the South are the most racially integrated.  

Poverty and racial segregation in housing and school are deeply connected.  Latino and African American children are much more likely to live in and attend school in low-income communities.  White and Asian children are more likely to live and attend school in middle-class or affluent communities.  The report notes that the convergence of race and class segregation may explain why schools with a majority of African American and Latino children have fewer resources and poorer student outcomes than other schools.

The report ends by outlining a series of policy recommendations including the commissioning of a national study on school segregation, taking steps to address housing segregation and the active recruitment of Latino and African American teachers and administrators. 

 While The Civil Rights Project timed the report's release to coincide with the 60th anniversary of Brown, the release also coincides with the 2014 review of the United States by the United Nations Committee on the Elimination of Racial Discrimination (CERD).  In August, the United States government will report to the Committee regarding its progress in implementing the International Convention on the Elimination of All Forms of Racial Discrimination.

In addition to the official report submitted by the government, various nongovernmental organizations, activists and advocates will submit “shadow reports” to the Committee detailing what is actually happening on the ground in the United States. The Civil Rights Project’s report provides important new information and data for education advocates to draw upon in addressing the issue of school segregation during the CERD review. The CERD review provides the international human rights community with an opportunity to speak directly to the troubling trend toward the re-segregation of U.S. public schools.

 

June 2, 2014 | Permalink | Comments (0)