Daily Archives: April 21, 2020

Katie Friel, CLS ’21

On November 8, 2018, Florida passed Amendment 4 to its constitution, restoring the voting rights of the state’s ex-felons who have completed all terms of their sentences, including parole or probation.[1] According to reports, Amendment 4 would make an estimated 1.4 million Floridians eligible to vote.[2] In a matter of months after Amendment 4’s passage, in June 2019, Florida Governor Ron DeSantis signed Senate Bill 7066, which implemented the Amendment and interpreted its language of “completion of all terms of sentence” to include a requirement that a felon pay all fines, fees, and restitution associated with his sentence before any rights are restored.[3] The Supreme Court of Florida subsequently confirmed this interpretation of Amendment 4, ruling that the text of the Amendment required completion of all payments associated with an individual’s sentence as a precondition to re-enfranchisement.[4]

Almost immediately after the enactment of SB 7066, seventeen ex-felons in Florida filed suits in federal court, challenging the constitutionality of SB 7066’s “fines and fees” requirement.[5]  As the highest court in the state, the Florida Supreme Court’s prior interpretation of Amendment 4 is determinative;[6] therefore, the only question for the federal courts is whether SB 7066 and Amendment 4, so interpreted, violates the United States Constitution. The fines and fees requirement, plaintiffs argued in a consolidated action in the Northern District of Florida, is a violation of the Equal Protection Clause of the 14^th Amendment because it punishes indigent citizens more harshly—by denying them the right to vote—than those who are able to pay their fines and fees.[7] Were it not for this requirement and their genuine inability to pay, plaintiffs argued, they would be eligible to vote under Amendment 4.[8] Following an evidentiary hearing, the district court granted plaintiffs’ motion for a preliminary injunction on October 18, 2019, enjoining the defendants from denying them access to the ballot box based solely on their inability to pay their fines and fees.[9]

Defendants subsequently appealed the district court’s injunctive relief, and, on February 19, 2020, the 11^th Circuit issued its decision on the matter.[10] The Court of Appeals found that the fines and fees requirement disproportionally punishes those who are unable to pay, resulting in the loss of a fundamental right—that to vote.[11] Typically, felon disenfranchisement and re-enfranchisement schemes are subject to rational basis review[12]; however, there are instances that may call for stricter scrutiny. For example, though wealth is not typically a suspect class, as the circuit court noted, Supreme Court precedent suggests that wealth classifications may be subject to heightened scrutiny when “they are used to restrict access to the franchise and in the administration of criminal justice,” both of which apply in Jones[13]; further, heightened scrutiny traditionally applies when fundamental rights are implicated—fundamental rights such as the right to vote.[14] As such, the court found, an analysis of the fines and fees requirement warrants heightened scrutiny.[15] Applying this standard, the 11^th Circuit found that the requirement likely violates the Equal Protection Clause as applied to the seventeen plaintiffs in the case.[16] Therefore, having also concluded that the plaintiffs would suffer irreparable injury in the absence of injunctive relief[17], that potential injury outweighs any harm to the defendants[18], and relief would be in the public interest[19], the court affirmed the district court’s preliminary injunction.[20]

[1] Jones v. Governor of Fla., 950 F.3d 795, 800 (11th Cir. 2020).

[2] Id.

[3] Id.

[4] Id. at 803.

[5] Id. at 804.

[6] Id.

[7] Id. at 805.

[8] Id. at 804.

[9] Id. at 805.

[10] Id. at 800.

[11] Id. at 800.

[12] Id. at 823.

[13] Id. at 808.

[14] Id.

[15]  Id. (“Once a state provides an avenue to ending the punishment of disenfranchisement, it must do so consonant with the principles of equal protection, and it may not erect a wealth barrier absent a justification sufficient to overcome heightened scrutiny.”).

[16] Id. at 827.

[17] Id. at 828.

[18] Id. at 829-30.

[19] Id. at 830-31.

[20] Id. at 832-33.

Jaime Brosnan, CLS ’21

Throughout the coronavirus pandemic, Americans have heard the President issue federal stay-at-home guidelines, including a nationwide lockdown until April 30^th. Americans have also heard the President discuss potentially lessening those restrictions and reopening businesses after this date; however, it is not his call to make. [1]  Although it may appear from the Coronavirus Task Force press conferences that the President ordered the current lockdowns, it is the state governments who possess the authority to impose these types of restrictions, although they often take their cues from the federal government. States have the police power to regulate almost everything in its state, including the ability to issue statewide lockdowns, force closures of institutions and businesses, limit public gatherings and prevent travel.[2] Protecting public health and safety is one of the states’ most compelling use of state power. [3] Under the Constitution, the federal government has a limited set of enumerated powers, leaving the state government with the primary authority to fight the pandemic.[4] States have many key advantages over the federal government in enacting these types of restrictions during an emergency, including more knowledge on its own resources and hazards, ability to shape policies on local issues and more flexibility to alter their emergency response plans.[5] That’s not to say the federal government does not possess any power during this crisis. The federal government has the power to provide medical supplies, transfer money to state governments, bar individuals with coronavirus from entering the United States, and fund research for a vaccine. It cannot, however, impose statewide quarantines.[6]

While some experts suggest a national lockdown would dramatically help slow the spread of the coronavirus[7], the United States federalism system likely prevents the federal government from officially enacting one and, instead, leaves that power in the hands of the individual states.[8] Although national emergencies, especially wartime, usually give rise to broader presidential power, a national shelter-in-place order is unprecedented and could likely be challenged in court.[9] While the President’s constitutional authority during emergency crises is not entirely defined[10], without an executive order to the contrary, the states have the lockdown power in their hands. A successful nationwide lockdown would require joint cooperation from all states, but states have each enacted varying levels of restrictive measures. Thirteen states, including New York and California, enacted the most restrictive measures in closing all nonessential businesses and prohibiting all gatherings. [11] Meanwhile, twelve states have yet to issue official statewide stay-at-home orders, including Alabama, Arkansas, Iowa, Missouri and North Dakota.[12] All states have issued some form of restriction, but their degree of prohibitions and exemptions vary. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases and a key leader in the administration’s coronavirus response, does not believe a nationwide shutdown is necessary because of the variation in infection rates across the states. [13] Nonetheless, responsibility for making decisions about the pandemic rests with the states, not the federal government, so look to your state governor for an update on your state’s individual restrictive stay-at-home measures during this pandemic.

[1] Walter Olson, Federalism and the Coronavirus, The Wall Street Journal https://www.wsj.com/articles/federalism-and-the-coronavirus-lockdown-11585609012

(Mar. 30, 2020).

[2] John Yoo, Pandemic Federalism, National Review, https://www.nationalreview.com/2020/03/pandemic-federalism/ (Mar. 20, 2020).

[3] Id.

[4] Id.

[5] See Olson, supra note 1.

[6] See Yoo, supra note 2.

[7] Nurith Aizenmen, Experts Say the U.S. Needs a National Shutdown ASAP—But Differ on What Comes Next, National Public Radio https://www.npr.org/sections/health-shots/2020/03/27/822146372/experts-say-the-u-s-needs-a-national-shutdown-asap-but-differ-on-what-comes-next (Mar. 27, 2020).

[8] See Yoo, supra note 2.

[9] Reid Wilson, Could Trump Declare a National Coronavirus Shutdown? Momentum is Rising, The Hill https://thehill.com/homenews/state-watch/488735-could-trump-declare-national-coronavirus-shutdown-momentum-is-rising (Mar. 20, 2020).

[10] Id.

[11] Id.

[12] Cristina Marcos, Several States Have Yet to Issue Stay-at Home Orders, The Hill https://thehill.com/homenews/state-watch/490695-several-states-have-yet-to-issue-stay-at-home-orders (Apr. 1, 2020).

[13] See Aizenman, supra note 6.

Morgan Marmaro, CLS ’21

For many of us, the COVID-19 pandemic has brought life to a halt. States have rushed to implement social distancing measures, ordering the close of non-essential businesses while non-essential workers work from home. This has provoked the question of “what is essential?” Hospitals, sanitation, courier, and restaurant workers all made the cut.[1] While keeping hospitals and streets clean are essential, Trump’s Environmental Protection Agency made the decision on March 26th that enforcing environmental violations was non-essential.[2]

There has been a backlash against the new temporary policy as many see the move as the administration taking advantage of an unprecedented global pandemic to advance their deregulatory agenda. Though facilities must comply with regulations “where reasonably practicable,” the EPA will not “seek penalties for noncompliance with routine monitoring and reporting obligations.”[3] The EPA announcement stresses that the measures are temporary and only affect “routine monitoring and reporting obligations.”[4] Moreover, the policy only applies to civil violations and “does not provide leniency for intentional criminal violations of law.”[5]

To qualify for discretionary enforcement, facilities must provide documentation of “decisions made to prevent or mitigate noncompliance” and establish a causal link between the COVID-19 pandemic and the company’s noncompliance.[6] David Uhlmann, former chief of the environmental crimes section at the Justice Department, noted that suspicion of the decision—given Trump’s “deplorable record” on environmental protection—is not unfounded, but that “this policy may be less nefarious than the alarming environmental rollbacks that the Trump EPA continues to pursue.”[7]

Environmental advocates are unconvinced by the supposedly narrowly tailored policy. While some flexibility for the current pandemic might be understandable, environmental advocates are concerned that the COVID-19 pandemic is merely pretextual. Cynthia Giles, the former head of the EPA’s Office of Enforcement, noted that “[t]his EPA statement is essentially a nationwide waiver of environmental rules for the indefinite future” and that she is “not aware of any instance when EPA ever relinquished this fundamental authority as it does in this memo.”[8] After all,  as noted by senior attorney for Environment America, John Rumpler, “the absence of verified monitoring strikes at the heart of environmental compliance.”[9]

The policy also has some inconsistencies. While the EPA says documentation about the causal link between noncompliance and COVID-19 is mandatory to avail oneself of the enforcement discretion, it still forgoes all fines or civil penalties for failure to monitor, report, or meet other requirements.[10]  The L.A. Times was quick to note that the oil and gas industries had been lobbying for relaxed environmental enforcement due to staffing issues.[11] Gina McCarthy, the former Obama-era EPA chief explained her outrage at the policy, noting that the waiver applied to “standard work that takes very few people to do.”[12] She further commented that many of the companies lobbying to relax standards due to staffing issues are also lobbying to keep their factories open so workers can keep their jobs.[13]

By implementing this policy, states will lack critical data on what pollutants have been released, hampering future environmental clean-up efforts. It is also interesting to see an ex ante pass being given to facilities rather than dealing with cases as they come up post-pandemic. How effective, or ineffective, the nascent policy will be depends entirely on enforcement and implementation.

[1] And from all of us quarantined at home, thank you profusely!

[2] Press Release, Environmental Protection Agency, EPA Announces Enforcement Discretion Policy for COVID-19 Pandemic, EPA.GOV (Mar. 26, 2020), https://www.epa.gov/newsreleases/epa-announces-enforcement-discretion-policy-covid-19-pandemic-0.

[3] Isaac Scher, The Environmental Protection Agency says it won’t enforce its own rules during the coronavirus pandemic, Business Insider (Mar. 27, 2020), https://www.businessinsider.com/coronavirus-epa-stops-enforcing-environmental-protection-rules-2020-3.

[4] Ledyard King, EPA suspends some public health monitoring and enforcement because of the coronavirus crisis, USA Today (Mar. 27, 2020), https://www.usatoday.com/story/news/politics/2020/03/27/coronavirus-crisis-epa-eases-key-permitting-enforcement-oversight/2925990001/.

[5] See Scher.

[6] Press Release, Environmental Protection Agency, EPA Announces Enforcement Discretion Policy for COVID-19 Pandemic, EPA.GOV (Mar. 26, 2020), https://www.epa.gov/newsreleases/epa-announces-enforcement-discretion-policy-covid-19-pandemic-0.

[7] Susanne Rust et al., Citing coronavirus, EPA suspends enforcement of environmental laws, L.A. Times (Mar. 27, 2020), https://www.latimes.com/environment/story/2020-03-27/epa-suspends-enforcement-amid-coronavirus.

[8] See Scher.

[9] See King.

[10] Susanne Rust et al., Citing coronavirus, EPA suspends enforcement of environmental laws, L.A. Times (Mar. 27, 2020), https://www.latimes.com/environment/story/2020-03-27/epa-suspends-enforcement-amid-coronavirus.

[11] Id.

[12] Id.

[13] Id.