Monthly Archives: January 2021

Paul Riley, CLS ’22

2020 marks 55 years since the passage of the Voting Rights Act of 1965 (the “VRA”) and the year that John Lewis, a civil rights icon, was laid to rest.[1] Many will never forget the footage of John Lewis and other non-violent protestors being brutalized by police as they marched for their right to vote on March 7, 1965. Often referred to as “Bloody Sunday,” the scenes from the Edmund Pettus Bridge in Selma, Alabama rocked the collective conscience of the nation and President Lyndon B. Johnson. Enacted into law on August 6, 1965, the VRA prohibits any measures that would prevent racial minorities from participating in the electoral process.[2] More specifically, Section 2 of the VRA (“§ 2”) prohibits, “any standards, practices, or procedures” that abridge racial or language minorities’ voting rights.[3] However, the Supreme Court’s continual narrowing down of the scope of § 2 claims has limited minority groups’ ability to seek adequate relief under the VRA.

The Supreme Court’s desire to narrow the scope of § 2 claims is perhaps most apparent in its City of Mobile, Alabama v. Bolden decision. In Mobile, the Court held that § 2 violations “required proof that the contested electoral practice or mechanism was adopted or maintained with the intent to discriminate against minority voters.”[4] Given that intent is extremely difficult to prove, Congress repudiated Mobile in its 1982 VRA Amendments ­– which rejected the Court’s “intent” test and now only required plaintiffs to show that an electoral practice had a discriminatory result.[5] With this new guidance, the Supreme Court, in Thornburg v. Gingles, established three preconditions for plaintiffs hoping to mount a § 2 claim. The minority group must be able to demonstrate that: (1) “it is sufficiently large and geographically compact to constitute a majority in a single-member district,” (2) “it is politically cohesive,” and (3) “the white majority votes sufficiently as a bloc to enable it…usually to defeat the minority’s preferred candidate.”[6]

Put simply, the Supreme Court notes that, “[u]nder § 2…the injury is vote dilution.”[7] Further, the Supreme Court has outlined two main types of vote dilution: (1) “the dispersal of blacks into districts in which they constitute an ineffective minority of voters,” and (2) “the concentration of blacks into districts where they constitute an excessive majority.”[8] Despite these two definitions of “vote dilution,” the Supreme Court has precluded plaintiffs from making “influence-dilution” or “vote-packing” claims under this latter definition. In League of United Latin American Citizens v. Perry, the Supreme Court held that § 2 does not require the creation of “influence districts” – districts “in which a minority group can influence the outcome of an election even if its preferred candidate cannot be elected.”[9] Similarly, the Supreme Court, in Bartlett v. Strickland, held that § 2 does not require the creation of “crossover districts” – districts where the minority group’s influence is potentially large enough to elect their desired candidate with the support of white voters who cross over to add their support.[10] Without these “influence” and “crossover” districts, there is essentially no remedy available for vote-packing claims under § 2.

The Supreme Court has demonstrated an unwillingness to create cognizable vote-packing claims because it fears that doing so will obliterate its Gingles preconditions ­– which have been the baseline and bedrock of its § 2 jurisprudence.[11] However, the evolution of the Supreme Court’s § 2 jurisprudence (with respect to vote-packing) has been anything but clear.[12] Congress should resolve this tension by specifically creating a vote-packing claim under § 2. In doing so, Congress could compel the courts to establish a judicial framework to protect this other form of vote dilution, put state legislatures on notice as they craft future redistricting plans, and, perhaps most importantly, provide minorities – excessively packed into these districts – with some form of relief under the VRA.

[1] N.J. Admin. Code § EX. ORD. No. 167 (2020) (“An Order Directing the U.S. and New Jersey Flags to Fly at Half-Staff in Honor of U.S. Representative John Lewis”).

[2] 52 U.S.C.A. § 10101.

[3] 52 U.S.C.A. § 10301 (“(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b). (b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”).

[4] Thornburg v. Gingles, 478 U.S. 30, 44 (1986) (referencing City of Mobile, Ala. v. Bolden, 446 U.S. 55 (1980)).

[5] S. REP. NO. 97-417, at 36 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 214.

[6] Gingles, 478 U.S. at 50–51.

[7] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 402 (2006).

[8] Gingles, 478 U.S. at 46 n.11.; Voinovich v. Quilter, 507 U.S. 146, 153–54 (1993).

[9] Bartlett v. Strickland, 556 U.S. 1, 13 (2009) (referencing League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 445 (2006)).

[10] Id.

[11] Id. at 16.

[12] Voinovich, 507 U.S. at 154 (“We have not yet decided whether influence-dilution claims such as appellees’ are viable under § 2.”); Growe v. Emison, 507 U.S. 25, 41 n.5 (1993); Gingles, 478 U.S. at 46 n.11–12 (1986).

Mary Gardner, CLS ’22

When an NYPD officer abuses his authority, who holds him accountable? The short answer is: no one. After George Floyd and Breonna Taylor were murdered by police officers, millions of Americans risked the pandemic to protest police violence and push for comprehensive reform.[1] Local governments felt the pressure of civilian scrutiny. People across the country began to inquire with greater urgency—Who reviews police misconduct? Who disciplines officers? Who terminates officers who endanger civilians?

In New York City, the Civilian Complaint Review Board (“CCRB”) functions as the independent watchdog agency intended to increase police accountability by processing claims of misconduct and recommending disciplinary action to the Police Commissioner. The CCRB is comprised of civilian employees and has the power to “receive, investigate, mediate, hear, make findings, and recommend action on complaints against New York City police officers alleging the use of excessive or unnecessary force, abuse of authority, discourtesy, or the use of offensive language.”[2] Although the existence of an independent watchdog agency has been lauded as ‘progressive,’ New Yorkers have long wondered how the CCRB works—and if the CCRB works.

Over the summer, New York lawmakers passed a series of laws intended to increase police accountability and curb police violence.[3] This package included the repeal of 50-A, a law that shielded police disciplinary records from the public.[4] On August 20, 2020, 323,911 accusations of police misconduct were published by the New York Civil Liberties Union.[5] The data rings alarm bells.

Between 2001 and 2020, over 81,000 officers have received at least one complaint, but the CCRB has recommended disciplinary action for only 3,188.[6]  Of these, 798 received some kind of penalty or additional training and returned to their roles, and 890 were not disciplined at all.[7] In the last twenty years, only seven officers have been fired.[8]

The data tells us that NYPD Officer Michael Raso has fourteen substantiated allegations in eight separate complaints against him, but he has not been fired.[9] Officer David Leonardi has eleven substantiated allegations in seven separate complaints against him, but he remains on the force.[10] Officer Joseph Tallarine has 23 substantiated allegations in six separate complaints, but he has maintained his position and even earned several raises.[11]

Moderate liberals who favor gradual police reform—including President-Elect Joe Biden[12]—have long referred to violent officers as a “few bad apples.” The CCRB data demonstrates the New York City’s disciplinary measures systematically retain “bad apples” while creating the illusion of civilian oversight. The whole barrel is rotten.

Now that the failures of the CCRB are readily apparent, the path to reform should be clear. New York needs a civilian oversight agency that is truly led by civilians and has some teeth. Currently, the City Council selects five board members, the Mayor selects five, and the Police Commissioner selects three.[13] New York Mayors have long felt political pressure to appear ‘tough on crime,’ so the board members selected by the Mayor lean conservative. As a result, the communities most impacted by police violence remain severely underrepresented. If the CCRB is truly intended to represent the population, the Mayor’s five board seats should be elected by citizens in each borough. The current mayoral appointees are racially diverse, but lack socioeconomic diversity – three out of five are corporate lawyers.[14]

Furthermore, the CCRB should have the authority to actually discipline officers based on their findings. At the moment, the board can only recommend disciplinary action to the Police Commissioner who may disregard the recommendation completely if he chooses.[15] The new data demonstrates that the Police Commissioner follows the CCRB recommendation only twenty percent of the time.[16] The consequences of this design flaw are tremendous. Officers who engage in excessive force, sexual harassment, and abuse of authority, are often reprimanded by losing a few vacation days.[17] Giving the CCRB real disciplinary authority would give the organization a backbone. Taking disciplinary authority out from under the NYPD and placing it in the hands of democratically-elected CCRB is a necessary step in creating meaningful police accountability.

[1] Luis Ferré-Sadurní and Jesse McKinley, N.Y. Bans Chokeholds and Approves Other Measures to Restrict Police, N.Y. Times (June 17, 2020), https://www.nytimes.com/2020/06/12/nyregion/50a-repeal-police-floyd.html.

[2] CIVILIAN COMPLAINT REVIEW BOARD, https://www1.nyc.gov/site/ccrb/about/about.page (last visited Nov. 21, 2020).

[3] See Ferré-Sadurní, supra note 1.

[4] Innocence Staff, In a Historic Victory, Governor Cuomo Signs Repeal of 50-A Into Law, Innocence Project (June 9, 2020), https://innocenceproject.org/in-a-historic-victory-the-new-york-legislature-repeals-50-a-requiring-full-disclosure-of-police-disciplinary-records/.

[5] Ashley Southall, 323,911 Accusations of N.Y.P.D. Misconduct Are Released Online, N.Y. Times (Aug. 20, 2020), https://www.nytimes.com/2020/08/20/nyregion/nypd-ccrb-records-published.html.

[6] Ashley Southall, Ali Watkins and Blacki Migliozzi, A Watchdog Accused Officers of Serious Misconduct. Few Were Punished., N.Y. Times (Nov. 15, 2020), https://www.nytimes.com/2020/11/15/nyregion/ccrb-nyc-police-misconduct.html.

[7] Id.

[8] Id.

[9] George Joseph, Christopher Robbins, Jake Offenhartz and Jake Dobkin, Here Are the Current NYPD Officers with the Most Substantiated Misconduct Complaints, Gothamist (July 28, 2020, 1:32 PM), https://gothamist.com/news/here-are-current-nypd-officers-most-substantiated-misconduct-complaints.

[10] Id.

[11] Id.

[12] Reid J. Epstein and John Eligon, Biden Said, ‘Most Cops Are Good.’ But Progressives Want Systemic Change., N.Y. Times (Aug. 19, 2020), https://www.nytimes.com/2020/08/19/us/politics/democrats-biden-defund-police.html.

[13] See CIVILIAN COMPLAINT REVIEW BOARD, supra note 2.

[14] Id.

[15] Id.

[16] See Southall, supra note 5.

[17] See Joseph, supra note 8.

Arpan Patel, CLS ’22

The ongoing pandemic has wrought devastation on American small and medium sized enterprises (SMEs). These businesses make up the critical “Main Street” segment of the American economy – they provide work for 45 million Americans and their workforce accounts for nearly 40% of private sector employees.[1] Yet, in the three months ending in June 2020, 1.4 million SMEs either closed or suspended operations.[2] The recession on Main Street impedes our ability to manage and recover from the pandemic.

In response, Congress directed the Board of Governors of the Federal Reserve (Fed) and U.S. Department of the Treasury (Treasury) to create a program to support SMEs in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).[3] Pursuant to this mandate, and under authority of section 13(3) of the Federal Reserve Act (FRA),[4] the Fed and the Treasury created the Main Street Lending Program (MSLP or “Program”) to “[e]nsure credit flows to small and mid-sized businesses…who were in sound financial condition before the onset of the COVID-19 pandemic.”[5] The Fed, through the MSLP, is authorized to purchase up to $600 billion in loans made to SMEs, with Treasury providing $75 billion in equity investment to absorb losses that accrue to the MSLP.[6]

However, the MSLP has received only modest use since its inception, leading many to question its utility.[7] As of September 22, 2020, banks in the Program had issued or initiated $2 billion of loans, which amounts to 0.3% of the total funds available to the MSLP.[8] And as of August 10, 2020, only 160 out of the 522 banks in the program had publicized that they are accepting loan applications from new customers.[9]

The MSLP’s nonuse is a function of practical, legal, and political deficiencies.

On a practical level, the overly restrictive terms for borrowers combine with the unattractive terms for lenders to discourage use by SMEs and banks alike.[10] Many SMEs on the demand side of the Program are either explicitly shut out by the restrictive eligibly terms or are discouraged by the onerous borrowing terms. Similarly, the complexity increases the costs to the bank to originate MSLP loans in the first place, which spoils the Program’s appeal on the supply side.[11]

On a legal level, section 13(3) of the FRA imposes restrictions on the Fed’s ability to administer the MSLP successfully.[12] Notwithstanding Congressional attempts to navigate these legal restrictions in the CARES Act, the MSLP remains handicapped by at least four structural legal deficiencies. First, Congress attempted to satisfy the Fed’s loss protection requirement in subsection (B)(i) by mandating the first-loss investment by Treasury. However, Treasury Secretary Mnuchin has leveraged this equity stake to effectively increase the price and terms of the MSLP, which is a major driver of the Program’s nonuse.[13] Second, Congress suspended sub silento the subsection (B)(i)’s requirement that lending be designed to provide liquidity to the financial system as a whole (as opposed to real economy borrowers like individual businesses) by implying that the Fed in fact does have that power: Section 4003(b) of the CARES Act authorizes Treasury to invest in “programs or facilities established by the Board . . . for the purpose of providing liquidity to the financial system that supports lending to eligible businesses, States, or municipalities…”[14] Sub silento lawmaking comes with significant costs in terms of clarity, uncertainty, and accountability for agencies.[15] Third, the inability of the Fed to lend to any individual counterparties under (B)(i) and (iii) means that any aid under section 13(3) must come as standardized product that has broad-based eligibility. To create a standardized product that is useful for hundreds of thousands of SMEs with unique borrower profiles is not, as Chairman Powell said, “practicable.”[16] And fourth, the Fed is bound by its own Regulation A, which requires any 13(3) lending be done at a penalty rate at a premium to the market rate in normal circumstances.[17] While the Fed has plenary authority to amend Regulation A, its continued effectiveness operates as a self-imposed restriction on the Fed’s ability to offer more attractive terms in the MSLP.

On a political level, the MSLP, its ineffective-by-design structure and the intertwining of Fed and Treasury, is pushing the Fed into legitimately concerning political territory.[18] In the MSLP, Congress is asking the Fed to act in an industrial policy capacity (instead of its typical monetary policy capacity) by providing credit directly to the real economy. This is a role for which the Fed has neither the institutional nor operational capacity. Moreover, this new role opens up the Fed to political lobbying. [19]  Indeed, multiple revisions to the terms MSLP has been the result of intense lobbying pressure from stakeholders across the spectrum.[20]

Despite all this, the Fed continues to insist that the MSLP is effective. Fed officials excuse the nonuse by pointing to the fact that SMEs have made use of the Payroll Protection Program (which has now expired) or taken out loans from nonbank lenders.[21] Further, Fed Chairman Jerome Powell said that if conditions get worse, the MSLP stands ready, as a “backstop.”[22] But this means that, without amendments to the Program, a future downturn in the economy will force SMEs to either shut their doors or turn to the unwelcoming embrace of the MSLP. Before that day comes, the Fed, Treasury, and Congress must revisit the provision of SME pandemic aid if they hope to save Main Street.[23]

[1] Nick Timiaraos & Kate Davidson, Fed, Treasury Disagreements Slowed Start of Main Street Lending Program,

Wall Street Journal (July 12, 2020), https://www.wsj.com/articles/fed-treasury-disagreementsslowed-start-of-mainstreet-lending-program-11594558800

[2] Gretchen Morganson et al., Misery on Main Street: COVID-19 takes a grim toll on America’s small businesses, NBC News (Sep. 23, 2020), https://www.nbcnews.com/business/economy/misery-main-street-covid-19-takes-grim-toll-america-s-n1239524

[3] CARES Act § 4003

[4] 12 U.S.C. § 343(3)

[5] Press Release, Board of Gov. of the Fed. Res., Federal Reserve takes additional actions to provide up to $2.3 trillion in loans to support the economy (Apr. 9, 2020), https://www.federalreserve.gov/newsevents/pressreleases/monetary20200409a.htm

[6] Id.

[7] Jeanna Smialek, A Coffee Chain Reveals Flaws in the Fed’s Plan to Save Main Street, N.Y. Times (Jul. 9, 2020), https://www.nytimes.com/2020/07/09/business/economy/federal-reserve-treasury-main-street.html

[8] Hybrid Hearing With Federal Reserve Chair Jerome H. Powell Before Select Subcomm. on the Coronavirus Crisis, 116th Cong. (September 23, 2020)

[9] Congressional Oversight Commission, The Fourth Report of the Congressional Oversight Commission, August 21, 2020, at 5, https://coc.senate.gov/sites/default/files/2020-08/COC%204th%20Report_08.21.2020%20with%20Appendix%208-27%20update.pdf

[10] Christopher Condon & Catarina Saravia, Banks Blame Tight Terms for Fed Main St Program’s Slow Start, Wash. Post (Sep. 29, 2020, 8:30 P.M.) https://www.washingtonpost.com/business/on-small-business/banks-blame-tight-terms-for-fed-main-st-programs-slow-start/2020/09/29/d7165f8a-027f-11eb-b92e-029676f9ebec_story.html; see also Laura Noonan et al., US Main Street virus era loans programme largely shunned, Financial Times (Jul. 1, 2020), https://www-ft-com.ezproxy.cul.columbia.edu/content/c09da6a2-39a9-4523-bd9a-1061e9865b66

[11] Howard Schneider, Fed’s Main Street lending may be missing core group of firms – survey, Reuters (Sep. 29, 2020, 2:50 PM) https://www.reuters.com/article/idUSKBN26K39M

[12] Under the subsection (A), before the Fed can purchase a loan in the MSLP, it must “obtain evidence that such participant . . . is unable to secure adequate credit accommodations from other banking institutions.” Subsection (B) imposes further obligations: (i) the Fed program must be designed to provide liquidity to the financial system as a whole, and the terms of the loans are sufficient to protect taxpayers from losses; (ii) the Fed must establish procedures to prohibit borrowing by insolvent counterparties; (iii) the program may not be designed to assist a single company; and (iv) the Fed must receive approval from the Secretary of the Treasury before authorizing lending under the provision. 12 U.S.C. § 343(3)

[13] Jeanna Smialek & Alan Rappeport, Fear of Risk Could Diminish the Economic Rescue by the Treasury and Fed, N.Y. Times (May 18, 2020), https://www.nytimes.com/2020/05/18/business/economy/economic-stimulus-treasury-fed-risk.html

[14] CARES Act § 4003.

[15] Lev Menand, Unappropriated Dollars: The Fed’s Ad Hoc Facilities and the Rules That Govern Them (Euro. Corp. Gov. Institute, Law Working Paper No. 518/2020, May 16, 2020), https://ssrn.com/abstract=3602740

[16] See supra note 9

[17] 12 C.F.R. 201.4(d)(7); see also 84 Fed. Reg. 39723 (Aug. 12, 2019)

[18] David T. Zaring, The Government’s Economic Response to the COVID Crisis (July 28, 2020), https://ssrn.com/abstract=3662049; see also Chrstine A. Desan et al., The Constitution and the Fed after the COVID-19 Crisis (Univ. of Colo. Law Legal Studies, Paper No. 20-38, June 24, 2020), https://ssrn.com/abstract=3635059

[19] Menand, supra note 14

[20] Id.

[21] See supra note 9

[22] Id.

[23] William English & Nellie Liang, How to fix the Fed’s broken Main Street Lending Program, L.A. Times (Oct. 8, 2020) https://www.latimes.com/opinion/story/2020-10-08/op-ed-how-to-fix-main-street-lending-program

Joe Sullivan, CLS ’22

It has been five years since the Supreme Court’s historic marriage equality ruling in Obergefell v. Hodges.[1]  However, on the first day of the Supreme Court’s 2020-2021 term, two conservative justices voiced their continued disapproval of Obergefell.  Kim Davis, a county clerk from Kentucky, petitioned for a writ of certiorari for her case against one of the gay couples to whom she denied a marriage license in the wake of Obergefell.[2]  The court denied Davis’ petition, but included a statement on its denial from Justice Clarence Thomas, joined by Justice Samuel Alito, that alarmed LGBTQ+ Americans and allies.

Justice Thomas, who joined Chief Justice John Roberts’ dissent in Obergefell,[3] wrote that, “Davis may have been one of the first victims of th[e] Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last.”[4]  Justice Thomas opined that a legislative solution would have been preferable to the Court “bypass[ing] that democratic process.”[5]  Finally, Thomas’ statement ended with a possible ultimatum: “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix.”[6]

Is Justice Thomas’ statement an implicit call for plaintiffs to bring new religious liberty challenges to Obergefell?  It is too early to tell, but the prospect of such challenges facing a majority-conservative Court (should the Senate confirm Judge Amy Coney Barrett’s nomination) has been enough to cause legal analysts to question the security of LGBTQ+ Americans’ right to marry.[7]

Should the Court overrule Obergefell and resort to legislative solutions, it is possible that these statutes will be subject to religious liberty challenges raised under the Religious Freedom Restoration Act (RFRA).[8] The RFRA requires the government to show that it is burdening a religion only if it furthers a compelling interest, and is the least restrictive means of furtherance.[9]  RFRA-based challenges to marriage equality statutes, if successful, could potentially dilute LGBTQ+ American’s right to marry, making it conditional on a least-restrictive application.  While this standard is heightened, it is not impossible to overcome.[10]  However, the added burden on the government could potentially usher in an erosion of some freedoms for which LGBTQ+ Americans have fought.

[1] Obergefell v. Hodges, 576 U.S. 644 (2015).

[2] Michael C. Dorf, In Gratuitously Attacking Marriage Equality, Clarence Thomas Accidentally Raised an Important Question About the Scope of Religious Liberty, Verdict (Oct. 14, 2020), https://verdict.justia.com/2020/10/14/in-gratuitously-attacking-marriage-equality-clarence-thomas-accidentally-raised-an-important-question-about-the-scope-of-religious-liberty.

[3] 576 U.S. at 686.

[4] Davis v. Ermold, No. 19-926, slip op. at 2 (U.S. Oct. 5, 2020).

[5] Id. at 1.

[6] Id. at 4.

[7] See Joan Biskupic, With court in flux, Thomas and Alito attack same-sex marriage ruling, CNN (Oct. 5, 2020, 6:16 PM), https://www.cnn.com/2020/10/05/politics/thomas-alito-obergefell-same-sex-marriage-analysis/index.html; Dorf, supra note 2; Adam Liptak, Justices Thomas and Alito Question Same-Sex Marriage Precedent, N.Y. Times (Oct. 5, 2020), https://www.nytimes.com/2020/10/05/us/politics/thomas-alito-same-sex-marriage.html.

[8] 42 U.S.C. § 2000bb-1.

[9] Id.

[10] See, e.g., U.S. v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) (holding that the government met the RFRA’s least restrictive means standard in criminalizing possession of eagle feathers without a proper permit).

Olivia Berci, CLS ’22

On November 10^th, a week after the presidential election, the Supreme Court heard oral arguments in two consolidated cases challenging the constitutionality of the Affordable Care Act (ACA).[1] Hanging in the balance is not only the insurance tens of millions of Americans gained through the ACA’s premium subsidies (that help enrollees cover their monthly insurance payments) and the law’s expansion of Medicaid,[2] but also the provisions of the law that protect people with preexisting conditions.[3]

Before the ACA, refusing to issue insurance to people with certain health conditions, excluding from coverage care associated with certain illnesses, and charging higher premiums based on a person’s health status were common practices.[4] Fifty-four million Americans have a preexisting condition that would have led to coverage denial in the individual insurance market before the ACA,[5] and that number will likely worsen as coronavirus cases in the United States surge well over 10 million.[6]

COVID-19 will likely become a preexisting condition.[7] In fact, having taken hydroxychloroquine, an anti-malaria drug President Trump pugnaciously promoted as a treatment for the coronavirus,[8] could have impaired one’s access to coverage before the ACA.[9] Should the Supreme Court strike down the ACA, a person who applies for health insurance who is sick or who has been sick with coronavirus could be “turned down, charged more, or offered a plan that excludes coverage for COVID-19 or related symptoms.”[10] Insurers could also cancel coverage if someone develops a health problem linked to an undisclosed coronavirus diagnosis.[11] In other words, an insurer could rescind someone’s policy when they develop an expensive heart or lung condition if they have coronavirus antibodies — even if they were unaware of their exposure to the virus.[12] Analysts further suggest that someone who tests negative for COVID-19 could be discriminated against if insurers determine that those who seek testing carry a higher risk of contracting the virus,[13] which could disincentivize individuals from seeking testing.

To rewind: In 2012, in NFIB v. Sebelius, the Supreme Court narrowly held that it would be unconstitutional for Congress to force Americans to purchase health insurance.[14] But, the Court upheld the ACA’s individual mandate by interpreting the statute as giving people a choice between buying insurance or paying a tax to the IRS.[15] In 2017, Congress zeroed the tax penalty for not purchasing health insurance.[16]  The ACA is still on the books and includes an instruction that people “shall” buy health insurance,[17] but, when Congress eliminated the tax associated with the coverage requirement, the ACA’s instruction became unenforceable: “Neither the Act nor any other law attache[d] negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.”[18]

Back to present day: The most recent challenge against the ACA was originally brought by a group of 20 attorneys general from Republican states.[19] They claim that the mandate, without the penalty, no longer offers people a choice between complying with the law or facing a tax, and, thus, represents an unconstitutional command to purchase insurance. [20] Moreover, the plaintiffs argue, the entire ACA must be struck because the mandate is inseverable from the rest of the law.[21] Legal scholars argue that neither claim is legally defensible.[22]

A Democratic Congress could revive the ACA by passing a law that cures the constitutional command problem – either by imposing a nominal tax penalty for foregoing insurance or by striking the instruction altogether.[23] However, if Republicans maintain control of the Senate, Senate Majority Leader Mitch McConnell would likely block any attempt by President Biden to restore the law, and, even if Democrats pick up both Georgia Senate seats in the January runoff, Democrats would have to reckon with the Senate’s filibuster.[24]

The ACA may yet survive. Even if the challengers have the votes on the constitutional merits of the challenge, they still have to win the Court over on standing – as a threshold matter – and severability, for the entire law to fall.[25] But, to be clear, the only source of protection for Americans with pre-existing conditions is the ACA.[26] A decision in the case is expected sometime in 2021.[27]

[1] See Transcript of Oral Argument, California v. Texas, 140 S. Ct. 1262 (2020) (No. 19-840), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-840_i426.pdf [https://perma.cc/H3P2-MLW8].

[2] See Chart Book: Accomplishments of Affordable Care Act, Center on Budget and Policy Priorities, https://www.cbpp.org/research/health/chart-book-accomplishments-of-affordable-care-act [https://perma.cc/X7GE-RWFE].

[3] See Katie Keith, What It Means To Cover Preexisting Conditions, Health Affairs Blog, https://www.healthaffairs.org/do/10.1377/hblog20200910.609967/full/ [https://perma.cc/5RRJ-V5Y2].

[4] See Larry Levitt, Protecting People With Pre-Existing Conditions Isn’t As Easy As It Seems, Kaiser Family Foundation, https://www.kff.org/policy-watch/protecting-people-with-pre-existing-conditions-isnt-as-easy-as-it-seems/ [https://perma.cc/CFQ6-L5G3].

[5] See Nearly 54 Million Americans Have Pre-Existing Conditions That Would Make Them Uninsurable in the Individual Market without the ACA, Kaiser Family Foundation, https://www.kff.org/health-reform/press-release/nearly-54-million-americans-have-pre-existing-conditions-that-would-make-them-uninsurable-in-the-individual-market-without-the-aca/ [https://perma.cc/2PL8-7YJV].

[6] See Covid in the U.S.: Latest Map and Case Count, N.Y. Times https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html [https://perma.cc/HS5J-8EY5]; See Keith, supra note 3.

[7] Andy Slavitt & Nicholas Bagley, America’s Health Care Is Under Existential Threat, N.Y. Times, https://www.nytimes.com/2020/09/23/opinion/trump-supreme-court-obamacare.html [https://perma.cc/YXW8-JLMQ] (“[C]ontracting the virus is the ultimate pre-existing condition.”).

[8] See Peter Baker et al., Trump’s Aggressive Advocacy of Malaria Drug for Treating Coronavirus Divides Medical Community, N.Y. Times, https://www.nytimes.com/2020/04/06/us/politics/coronavirus-trump-malaria-drug.html [https://perma.cc/3Y4R-AZEZ].

[9] See Levitt, supra note 4.

[10] Karen Pollitz et al., Is COVID-19 a Pre-Existing Condition? What Could Happen if the ACA is Overturned, Kaiser Family Foundation, https://www.kff.org/policy-watch/is-covid-19-a-pre-existing-condition-what-could-happen-if-the-aca-is-overturned/ [https://perma.cc/HYY4-PREX].

[11] See Tara Straw & Aviva Aron-Dine, Commentary: ACA Repeal Even More Dangerous During Pandemic and Economic Crisis, Ctr. on Budget & Pol’y Priorities, https://www.cbpp.org/health/commentary-aca-repeal-even-more-dangerous-during-pandemic-and-economic-crisis [https://perma.cc/2QRM-TCLZ].

[12] Id.

[13] See Pollitz et al., supra note 10.

[14] See National Federation of Independent Businesses v. Sebelius, 567 U.S. 519 (2012).

[15] Id. at 563.

[16] See Heather Long, The final GOP tax bill is complete. Here’s what is in it., Wash. Post.,   https://www.washingtonpost.com/news/wonk/wp/2017/12/15/the-final-gop-tax-bill-is-complete-heres-what-is-in-it/ https://perma.cc/48E8-J7BS].

[17] 26 U.S.C. § 5000A(a).

[18] 567 U.S. at 568.

[19] See Texas v. United States, 945 F.3d 355 (5th Cir. 2019).

[20] See, e.g., Brief of Plaintiffs in Support of Application for Preliminary Injunction at 1, Texas v. United States, 945 F.3d 355 (5th Cir. 2019) (No. 18-cv-00167-O).

[21] Id.

[22] See generally Brief for Professors Michael C. Dorf and Martin S. Lederman as Amici Curiae in Support of Petitioners on Question Two, California v. Texas, 140 S Ct. 1262 (2020) (No. 19-840).

[23] See Nicholas Bagley, the Fallout of a SCOTUS Health-Care Decision Could Be Quick, Devastating, and Irreversible, Atlantic, theatlantic.com/ideas/archive/2020/11/fallout-scotus-health-care-decision/617048/ [https://perma.cc/RLK7-KARL].

[24] Id.

[25] See Transcript of Oral Argument, California v. Texas, 140 S. Ct. 1262 (2020) (No. 19-840), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-840_i426.pdf [https://perma.cc/H3P2-MLW8].

[26] Some states have moved to ensure the ACA’s protections prohibiting discrimination on the basis of health history are written into state law. See Sabrina Corlette & Emily Curran, Can States Fill the Gap if the Federal Government Overturns Preexisting Condition Protections?, COMMONWEALTH FUND, https://www.commonwealthfund.org/blog/2019/can-states-fill-gap-preexisting-condition-protections. [https://perma.cc/7VT5-3WR5]. But, before the ACA, state efforts to enact protections for preexisting conditions had destabilizing effects on state insurance markets. See id. (“[S]tate efforts to require insurers to cover people with preexisting conditions resulted in large premium spikes and, in some cases, caused insurers to exit the market.”).

[27] Amy Howe, Argument analysis: ACA seems likely to survive, but on what ground?, SCOTUSblog, https://www.scotusblog.com/2020/11/argument-analysis-aca-seems-likely-to-survive-but-on-what-ground/ [https://perma.cc/U9EP-3XEC].