Category Archives: Laws/Legislation

Attention, State Government Watchdogs: You Might Need This

Source: Linda Poon, CityLab, February 9, 2017

A new search engine called Digital Democracy can comb through videos, transcripts, and records of what goes on in America’s statehouses. … Some of this kind of information is recorded, but little is released in a timely manner or can be easily accessed by the public. Blakeslee aims to change that with Digital Democracy, an online tool that archives every state hearing in California—and now, New York—since 2015 through videos, transcripts, and records of who said what. The tool also keeps track of elected officials and their financial ties to lobbyists and big corporations—all searchable by name, issue, bill number, etc. Think of it as Google for state government. … First launched in 2015 in California with cofounder and California Lieutenant Governor Gavin Newsom, the tool is now being taken across the country to New York via a partnership with NAACP. Digital Democracy now has information on some 15,000 individuals involved in policymaking in those two states. Eventually, Florida and Texas will get their own platforms, expanding Digital Democracy’s reach to roughly a third of all U.S. citizens….

Drug Testing Unemployment Insurance Applicants: An Unconstitutional Solution in Search of a Problem

Source: Rontel Batie, George Wentworth, National Employment Law Project (NELP), Policy Brief, February 2017

From the summary:
Historically, states have never drug tested applicants for unemployment insurance (UI), primarily because the Social Security Act prohibits states from adding qualifying requirements that do not relate to the “fact or cause” of a worker’s unemployment. In the aftermath of the Great Recession, however, some states, in a misguided effort to try to contain the high costs of their UI programs due to high unemployment rates, began clamoring to drug test UI applicants. Their hypothesis (without any facts or data to back it up) was that claims would somehow substantially decrease, either as workers tested positive for drugs or declined to apply because of their drug use.

Mindful of the goal of drug-free workplaces but also of the lack of any data that drug use was an issue among the unemployed, in 2012, Congress reached a narrow compromise on drug testing UI claimants, one that took into account the serious constitutional issues with suspicionless drug testing. Congress agreed to allow, not require, states to test UI claimants in two specific, narrow circumstances: (1) workers who had been discharged from their last job because of unlawful drug use, and (2) workers looking for jobs in occupations where applicants and employees are subject to regular drug testing. Consistent with the new federal law, the U.S. Department of Labor issued regulations that closely tracked the legislation, defining occupations subject to regular testing to mean occupations where testing is legally required (either now or in the future), and not merely permitted.

Congressional Republicans, unhappy with the compromise they agreed to in 2012, have criticized the Labor Department regulations since they were proposed, claiming they were too narrowly drawn even though they closely tracked the legislation. The House of Representatives is now planning to invoke the Congressional Review Act to invalidate these regulations; and presumably, proponents of drug testing are counting on passage of a bill introduced in the 114th Congress by Rep. Kevin Brady (R-TX) that would effectively allow states to drug test all jobless workers filing for unemployment insurance. This bill, which we expect will be reintroduced shortly, would allow states to define occupations that “regularly” drug test to include all occupations where testing (including pre-employment testing) is permitted. If passed, this bill would open the floodgates for states to arbitrarily and unconstitutionally drug test its citizens solely because they are applying for UI benefits.

No one should be so confident that this bill could pass the Senate. Proponents have been trying to build support for drug testing UI claimants for years; but for the very narrow compromise reached in 2012, there has been no wider bipartisan support for the policy. Indeed, that is because such drug testing is simply another humiliation piled onto unemployed workers—a hurdle designed to be so stigmatizing that it discourages people from even applying for a benefit that they have earned in the first place….

The Foreign Emoluments Clause and the Chief Executive

Source: Andy Grewal, University of Iowa, Legal Studies Research Paper No. 2017-12, February 3, 2017

From the abstract:
The 2016 Presidential election brought widespread attention to a part of the Constitution, the Foreign Emoluments Clause, that had previously enjoyed a peaceful spot in the dustbin of history. That clause generally prohibits U.S. Officers from accepting “emoluments” from foreign governments, absent Congressional consent. Several commentators believe that President Trump will inevitably run into this prohibition, given the global business dealings of the Trump Organization. They read “emolument” as referring to any payment received from a foreign government, such that even a diplomat’s payment of a room reservation fee at the Trump Hotel establishes an impeachable offense.

This Article argues that the commentators have interpreted emoluments far too broadly. Numerous legal authorities show that “emoluments,” as used in the Foreign Emoluments Clause, refer to payments from a foreign government made in exchange for the U.S. Officer’s performance of services (office-related compensation). The term does not refer to any and all payments from a foreign government.

Putting aside definitional issues, vexing questions arise when determining whether an emolument arises in a transaction between a foreign government and a business entity owned or affiliated with a U.S. Officer. The Office of Legal Counsel and Comptroller General have struggled with the issues, but their approaches suffer from conceptual flaws. This Article proposes an alternative three-part business entity test to help analyze the problems.

After tangling with the definitional questions related to emoluments and the complications presented by business entities, this Article examines whether the activities of the Trump Organization establish violations of the Foreign Emoluments Clause. It concludes that market-rate transactions between the Trump Organization and foreign governments do not come within the clause. However, payments to the Trump Organization in excess of market rates may establish potentially unconstitutional gifts, emoluments, or bribes. Payments made to President Trump personally in exchange for services would also raise constitutional problems.

Affordable Care Act Executive Order: Legal Considerations

Source: Congressional Research Service, CRS Reports & Analysis Legal Sidebar, January 24, 2016

On January 20, 2017, President Donald J. Trump issued an executive order (EO) declaring his intention to “seek the prompt repeal of the Patient Protection and Affordable Care Act [ACA]” while minimizing “economic and regulatory burdens of the Act,” ensuring that the ACA is “efficiently implemented,” and preparing to allow states “more flexibility and control.” Broadly, the EO issues the following three directives to executive branch agencies:

– First, it directs agencies with authorities or responsibilities under the ACA to “waive, defer, grant exemptions from, or delay the implementation of” any ACA provision that would impose a fiscal or regulatory burden on states or a host of private entities (including individuals, health care providers, health insurers, and medical device manufacturers).
– Second, the EO directs those same agencies to provide greater flexibility and cooperation to states in implementing healthcare programs.
– Third, the EO directs all agencies with responsibilities relating to healthcare or health insurance to encourage the development of a free and open interstate market for health services and health insurance…

5 Calls debuts what may be the easiest way to call your reps yet

Source: Sarah Perez, TechCrunch, January 25, 2017

A growing number of political activist websites have popped up in recent days to help those opposed to the Trump administration’s policies and agenda to take action. But a new one, 5 Calls, has just launched its simple online tool that makes the more cumbersome process of getting in touch with your representatives a lot easier than before.

The site, created by a team of volunteers, isn’t very fancy, but it’s certainly efficient.
The idea is that if you have 5 minutes to spare, you can place 5 calls – something that’s far more effective in terms of influencing your representatives and getting your voice heard than emailing is said to be.

And, yes, this site has an anti-Trump, left-leaning agenda, but it’s worth noting its creators have open sourced the code. While this was done largely because of the way the team operated – during their free time, from different locations – it places the code in the public domain. And that means others – including those on the opposing side of the political spectrum – could build their own version of 5 Calls, if they were motivated to keep such a site updated. ….

Police Body-Worn Camera Legislation Tracker

Source: Urban Institute, 2017

Laws governing how and when police body-worn cameras can be used and whether the footage is released vary considerably across the country. Use our legislation tracker, which we will update periodically, to find out more about passed and pending legislation in your state. ….
Related:
Police body camera policies: What’s in and what’s out
Source: Nancy G. La Vigne, Margaret Ulle, Urban Institute, January 12, 2017

State policies governing police body camera use are changing as rapidly as cameras are being deployed. About a year ago, we launched an interactive feature that tracks relevant body camera legislation. Since then, legislatures in 18 states passed new body camera laws. ….

Preemption conflicts between state and local governments

Source: Ballotpedia, Last updated on January 2, 2017

Out of 15 resolved preemption cases tracked by Ballotpedia, states were able to preempt local ordinances or initiatives in 14 cases.

A tug-of-war between cities and state governments has developed behind the scenes of the 21st century’s biggest policy debates. Interest groups advancing policy reforms ranging from bans on fracking to higher minimum wages have led local and state officials to tussle over appropriate responses. Mayors, city councils, and community activists are passing ordinances and initiatives on wages, gun control, and LGBT issues in order to fill gaps perceived in existing law. Governors and state legislators have pushed back against these local responses, citing their interests in creating uniform policies across all local governments in their states.

This struggle continues the decades-long evolution of preemption, a legal concept that allows a state law to supersede a conflicting local law due to the state’s power to create cities as granted by state constitutions….

Restrictions on Lobbying the Government: Current Policy and Proposed Changes

Source: Jacob R. Straus, Congressional Research Service, CRS Insight, IN10625, December 15, 2016

During the 2016 presidential campaign, President-elect Donald Trump proposed a series of ethics measures, including several lobbying-related provisions. They are:
• extending “cooling off” periods on lobbying the government for five years after government service; “instituting a five-year ban on lobbying by former Members of Congress and their staffs”;
• expanding the definition of a lobbyist to cover former government officials who engage in strategic consulting; and
• issuing a “lifetime ban against senior executive branch officials lobbying on behalf of a foreign government.”

President-elect Trump’s ethics plan shares some features with past efforts to restrict Administration officials’ future lobbying activities (the “revolving door”) by adjusting “cooling off” periods—a period of time a former government official is restricted from contacting their former employer on particular matters they might have worked on in government. These previous efforts include a 1993 executive order issued by President Bill Clinton (E.O. 12834) and a 2009 executive order issued by President Barack Obama (E.O. 13490), and the Honest Leadership and Open Government Act (HLOGA) of 2007. The executive orders supplemented existing statutory revolving door and “cooling off” period requirements…