Introducing Our Graphs Series: because we learn better in pictures.

Today Subscript brings you the first of many cool graphs.

A couple weeks ago we reported on the Contraception Mandate, and now you can see the laws even more concisely. 

What's going on with the Contraception Mandate? Will contraception still be free? That depends.

It's likely that Health and Human Services, guided by President Trump, will change the Contraception Mandate, i.e. no longer require employers to include contraception in health plans. 

But some states make it mandatory on the insurance companies anyway. Beyond that, it would be particular to the employer and plan. 

To help tell the legal story, we have two graph legends on the site. They explain the graph components.

Check out the Graph and Legends here.

And stay tuned for more graphs!

The Contraception Mandate: a religious burden or just governance?

You might have heard about the Supreme Court case involving Hobby Lobby, hailed by religious groups as a major win. The case said companies are allowed to get out of paying for contraception for their employees. You might not have heard that you, as a taxpayer, now pay for those employees’ contraception instead.

This country was founded on the principle that the government should stay out of religious exercise. But that doesn’t mean the government can’t govern. The Supreme Court recognized the limits of the “Free Exercise” clause in 1990 when a member of the Native American Church wanted an exemption from a law prohibiting peyote use. The Court ruled against him, saying an indirect burden on religion is fine when lawmakers want to accomplish a different goal. It’s possible that his non-“mainstream” practice had something to do with the result.

Since that ruling, the government made a law to do what the Free Exercise clause couldn’t. It’s the law the Court used to side with employers in the Hobby Lobby case.

However, some would argue that avoiding burdening religion as the Court did in Hobby Lobby could be a preference for a certain religion. That’s not Trump’s view. He declared recently his intent to secure Christian views on contraception will be free from government burden.

See the legal landscape relating to the Contraception Mandate in our report this week. We are piloting a Quiz segment in this week’s post - hope it helps you follow the report!

View the report here.


Sugar, Standard Oil and Today’s Regulation of Corporate Mergers

In 1895, American Sugar was allowed to monopolize sugar manufacturing. The Supreme Court said manufacturing was out of federal government reach. It wasn’t the type of “commerce” that Congress could regulate.

Sixteen years later, the Court ordered the biggest breakup in corporate history. Rockefeller’s Standard Oil conglomerate of 65 affiliated companies owning 90 percent of the American oil industry had to dissociate with 33 of them. Some of them are names we all know: Exxon, Chevron, Amoco, Mobil. No surprise it was oil that led the Supreme Court to recognize a federal interest in regulating commerce.

From that point, federal regulation grew. And it grew some more, especially through the New Deal. Roosevelt, acting in response to the Great Depression, passed enough legislation to carry with it the modern day label “liberal” for supporters of regulation and social policies.

Today, the federal government has clear authority to control anticompetitive actions. Major federal antitrust laws now have over a century of history, and the federal agencies play a large role in overseeing corporate mergers.

And even after all that history, what goes around comes around. In 1998, the Federal Trade Commission approved the largest merger in world history, allowing Rockefeller’s once-separated offspring, Exxon and Mobil, to again be joined.

This week, we bring you the legal landscape of antitrust regulation related to corporate mergers.

View the report here.

Rules and Roles Deciding the Ultimate Punishment

I couldn’t have ever sympathized with supporters of the death penalty until a close friend of mine was murdered. I spent a summer in Karachi, Pakistan, and this friend was the kindest individual I came across in the entire country. He was one of the few males that treated me as an equal. I knew this because the first day I met him, he offered me a cigarette - something none of the other male lawyers that I worked with ever considered.

I would not have lasted the summer in Pakistan without Fahim. He was my best friend there and my lifeline. Two years later, not long after catching up with him over Skype, I was sent an article with the story of his murder.

I am still probably against the death penalty in nearly all circumstances. But when Fahim was murdered (a disgusting incident involving drugging and strangulation), for the first time I could imagine someone so sick to be deserving of murder by the state.

Why does murder by the state make me cringe? There is something about the process: that deciding whether someone lives is based on an amalgamation of a set of rules; that the sentenced person is in a state of knowing and expectation of the end of his own life; that a person on death row has already been stripped of dignity to the fullest extent, even before the final act.

If you want to think more about stripping of dignity by the criminal justice system, read Michel Foucault. He philosophized that getting rid of corporal punishment just moves the scarring by the state off of the body and onto the soul.

Our report this week is strictly legal: the law relating to the death penalty. How does the American Constitution intend to incorporate dignity for those convicted of the worst crimes? In this country, criminal prosecution is traditionally the responsibility of the states, and state laws govern most criminal cases. Though much less frequently used, the federal government also engages in the death penalty (for federal offenses). The courts are responsible for keeping sentences in line with changing standards of dignity.

See it all described in this week’s report. Feel free to put your thoughts in the comments section.

View the report on the death penalty.

Photo credit Edwin Young.

Congressional Ethics in the House

Subscript is lucky to be based in a community where its members have high standards on how they are represented politically. How high these standards are is something Representative Rodney Frelinghuysen, of the 11th district of New Jersey, is finding out.

After facing continuous pressure for face-time and demands for accountability from a well-organized coalition of members of his district, Representative Frelinghuysen, probably feeling a bit desperate, sought to use political pressure of his own. But he acted unwisely, and probably unethically. He highlighted to the board member of a local bank that one of the “ringleaders” of the activist group pressuring him, NJ 11th for Change, worked at the bank. The activist, Saily Avelenda, later resigned after facing some scrutiny from bank higher-ups.

Soon after Ms. Avelenda resigned from the bank, a private group (a nonprofit, Campaign for Accountability, with a mission to provide government accountability) filed a complaint to the Office of Congressional Ethics.

What are the ethical standards of Congress? And how are they imposed? We did some searching to find out.

Because, here at Subscript, we always like to start at the Constitution, we find a relevant piece in the Legislative Powers part of the Constitution (Article I). It says Congress creates its own rules and punishes and expels its own members:

“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member” (Section 5, clause 2).

So what has the House done on the ethics front?

Before 1967, the House of Representatives dealt with ethics issues on a case-by-case basis, sometimes forming an ad hoc committee (formed at the moment, specifically for that purpose) to investigate.

After some issues of wrongdoing in the 1960s, in 1967, the House created a Code of Conduct (applicable to all members, staff and officers of the House) and a Committee on Ethics (at the time called the Committee on Standards of Official Conduct).

You can read the Code of Official Conduct, the rules House members must follow, here.

The Committee on Ethics enforces the Code of Conduct.  The Committee is responsible for:

  • Recommending processes for establishing or enforcing ethics standards;

  • Investigating allegations of misconduct (violations of the Code of Official Conduct or other law, rule, regulation or applicable standard);

  • Reporting to appropriate state/federal authorities about evidence of violations of law; and

  • Issuing advisory opinions to guide on House ethics standards.

A few changes to the House process were made over time, including, for example, a 1997 change of the way individuals who are not Members of the House file complaints. The complaints need to have a Member of the House certify in writing that the complaint was made in good faith and that it warrants consideration (in fact, the earlier rule was more restrictive).

In 2007 came a more significant change, with the creation of the first independent office to study House ethics. That means the people investigating the complaint would not be members of Congress. Then-Speaker of the House Nancy Pelosi and Minority Leader John Boehner set up a special task force to review whether an outside office would be good. Yes, it decided.

As a result of the task force’s recommendation, the Office of Congressional Ethics was created in July 2008. Pelosi and Boehner jointly picked the first appointments of board members.

The Office of Congressional Ethics, now the first step in an ethics complaint on a Member of the House, decides after investigation whether or not to recommend that the House Committee on Ethics conduct further review. This is the office currently reviewing the complaint on Rep. Frelinghuysen.

The Citizens’ Guide provides a good summary of the current process.  And here is a listing of all Office of Congressional Ethics reports.

This report by Jacob Straus of the Congressional Research Service was very instructive in creating this post.


Sanctuary City Power Struggle

The political battle around “sanctuary cities” is confusing because different levels of legal authority are pulling at each other.

We know President Trump and his executive department have an agenda of strict immigration enforcement. The federal government has been putting its agents on the street in larger numbers, causing the three-letter agency acronym ICE to ripple through immigrant communities recently.

The federal government wants to get local authorities (like city police) watching out for potential immigration violations, for an even stronger force. Congress can use economic pressure to encourage state and local governments to help, but it cannot require local assistance. The President, as commanding as he wants to be, is finding out he can’t either, despite a January executive order attempting to do so.

Local governments are standing strong against federal pressure, citing, for example, that enforcing immigration law will lead to a distrust of the local police by residents.

Some states, like Texas, are choosing sides, and forbidding their local governments to ignore the federal ask.

It is all playing out in a game of tug-of-war, which we bring you in our report this week.

View the report on Sanctuary Cities.


Just because it’s not trending doesn’t mean it’s not, well important

We read about cases in the Supreme Court, especially on so-called sexy topics like gay rights, abortion rights, or occasionally voting rights. But what about the rest of the cases the Court decides each term? And how often do you actually read the Court’s analysis (the opinion)?

This week we take a look at a big decision that the Court made last week, and our infographic makes the analysis easier to comprehend. Unless you are an avid follower of civil rights law, you might not have heard about it. The case started with the City of Miami suing two banks: Bank of America and Wells Fargo. Sounds big enough, right? Miami claimed the banks discriminated against minorities in issuing home financing loans.

The reason it’s hard to get interested in some of these cases, despite their importance, is that by the time a case reaches the Supreme Court, the question that the Court decides is too abstract. For example, in this case, the Supreme Court is not deciding whether the banks actually discriminated. That part of the case hasn’t gotten started yet. The Supreme Court is asked to rule on preliminary matters - whether the case meets certain requirements so that it can even get started with trial.

This is the stuff that matters. It decides whether a litigation can get off the ground - whether we might hear (potentially years down the line) that Bank of America and Wells Fargo decided to settle a lawsuit for X million dollars. Does the case have legs?

See our analysis of the Supreme Court case, Bank of America, et al. v. City of Miami.

We take you through the legal elements using our same infographic (the hierarchy of our government) in the context of the case. And just so you know the ending (this is not a movie, ok?) - the Supreme Court said the case is valid… at least for the most part.

Protection From Orwell's 1984

This week we researched the laws that keep the government from watching our every move. Given how much of our lives is recorded through our many electronic devices, the government certainly has the potential to know a lot about us.  And as we found it when Snowden released a bunch of NSA docs in 2013, it probably does. 

It turns out, our Constitutional guarantee against "unreasonable search and seizure" has many limits. In fact, the courts have had a hard time expressing the 4th Amendment in terms of electronic searches. Further, when it comes to foreign intelligence and potential national security threats, our laws include plenty of exceptions from the requirement of getting a warrant or consent before intercepting communications. 

I will note, though, my own commentary. What keeps us from an Orwell state is the principle enshrined in the 4th Amendment. It's not the Amendment itself, because when you learn the law, you see how easy it is for our legal system to make exceptions - even to constitutional protections. But in this case, it's fear of the Orwell state, and of losing our personhood, that enough people in our society have, which binds lawmakers from throwing our privacy protections away when faced with threats to our security. 

This week's map shows the government's balancing of two fears: an external fear, of national security, versus an internal fear, of personal expression.

See the map on Government Electronic Surveillance.

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Data Security in Today's Technological Age

By now we all know that a lot of information about us is kept on file somewhere. Some of it we give knowingly, like when we apply for a credit card. And some we pretend is not out there, but we see it displayed back to us on ads that appear on our web browsers. 

I have heard the problem with big data described like this: We are accustomed to awareness of ourselves in physical space. For example, it's embarrassing to have your zipper undone, but chances are, not too many people noticed. A "zipper" undone in computer space, on the other hand, makes you susceptible to a much more severe breach of privacy. That's because computers can highlight vulnerabilities much more clearly - things that the eye would never notice.

The Founders did not envision this world, so obviously our Constitution does not give explicit help. Consumer abuse is nothing new, however, and over time Congress has passed several laws designed to make sure we are not exploited. Today's infographic shows how Congress and federal agencies are making policies to protect our personal information, given the technology of today. We also discuss how the states add to those protections.

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Stay tuned for a related topic: government access to our electronic data (as it relates to surveillance, national security, and privacy).

Introducing Our New Local Series

This week Subscript introduces our new Local Series. We are bringing you legal learning from a local perspective out of our home base in Montclair, New Jersey. 

Since today is a good day to think about our civic taxpaying obligations, we thought we would start with a look at where our property taxes go. In New Jersey, a residential property owner pays taxes to the municipality, the county, and the school district. They all come in the same bill, and the revenues are dispersed to each place in part.

We start you with a post that compares some budget and tax basics of three towns: Comparing Montclair, Bloomfield, and Jersey City. See notable factors of the towns' budgets, such as average residential value, amount of state aid received, and amounts that go to the town versus the county or the school district. Digging a bit deeper, we have itemizations of Montclair Appropriations and also of Essex County Appropriations. These two posts show you, first of all, what sorts of things each is responsible for. Next, you might be surprised by some of the numbers. Did you know the Montclair fire department spends more than ten times than the town spends on refuse collection and disposal? Or that 27% - a whopping $211 million - of Essex County appropriations go to the Public Safety Functions (correctional services, prosecutor, sheriff)?

As our Local Series continues, we will provide gradually broader legal context to issues that make sense from the perspective of a local resident. The issues will eventually merge into our Mapping Current Events series, which displays the federal perspective and works its way down.

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