Category Archives: Laws/Legislation

Public Employees, Private Speech: 1st Amendment doesn’t always protect government workers

Source: David L. Hudson Jr., ABA Journal, May 1, 2017

High-profile controversies over police shootings, questionable promotions, racial profiling, attacks on law enforcement and race-based incidents have led to an increase in public employees being disciplined for publicly posting commentary deemed offensive or incendiary.

Public employees have been suspended for all manner of speech—supporting the shooting of police officers, lauding officers for shooting citizens, criticizing their students or co-workers, mocking minorities or religions and for a litany of other messages on social media. ….

The number of such social media cases involving public employees disciplined for posts has been on the rise, observers say. …. In the past, public employees could engage in inflammatory speech on the telephone or in personal conversations at home or work without those conversations being memorialized. However, when public employees post such statements online for the world to see, there can be negative ramifications. …. However, some believe it’s unseemly to allow the government to punish employees for purely off-duty speech created in the privacy of one’s home. ….

The New Negative Rights: Abortion Funding and Constitutional Law after Whole Woman’s Health

Source: Mary Ziegler, Florida State University – College of Law, Public Law Research Paper No. 832, March 9, 2017

From the abstract:
The Hyde Amendment, a ban on the Medicaid funding of abortion, is once again at the center of the abortion wars. For the most part, critics of the Hyde Amendment argue that it authorizes discrimination against poor women. Using original archival research, this Article show that the amendment has had a far greater impact.

In popular debate, proponents of the Hyde Amendment helped to forge an idea of complicity-based conscience that has recently transformed fights about everything from same-sex marriage to contraceptive access. Constitutionally, the fight for the Hyde Amendment also revolutionized the rights-privilege distinction in constitutional law. In abortion-funding cases, the Court held that there was no constitutional problem with laws that created practical obstacles to abortion access so long as the obstacles themselves were not controlled or created by the state. This approach has resonated outside the context of abortion law.

The Court’s recent decision in Whole Woman’s Health v. Hellerstedt makes a challenge to the Hyde Amendment realistic and compelling. The cases upholding the Hyde Amendment regard as constitutional any burden on a woman’s right to choose that is neither created nor controlled by the government. Whole Woman’s Health explicitly rejected this approach, looking instead at how the formal terms of law interact with forces beyond the government’s control. For this reason, the Article shows that Whole Woman’s Health undermines the core premises of the Hyde Amendment and creates an opening for those seeking to revisit the distinction between negative and positive rights.

Understanding the Difference between U.S. Federal Laws and Regulations

Source: Stuart Basefsky, Cornell University – School of Industrial and Labor Relations, Last revised: 15 April 2017

From the abstract:
This is a simplified guide to understanding the differences between laws and regulations in the United States. It provides links to the resources described so that students, teachers, professors, practitioners and the general public can access these necessary documents for public policy purposes. It was originally formulated at Duke University by Stuart Basefsky and brought to Cornell University for the purposes of teaching and research.

The Impact of Fiscal Limits on State Revenue Volatility

Source: Tucker Staley, American Review of Public Administration, Vol 47, Issue 4, May 2017
(subscription required)

From the abstract:
Recent headlines suggest that state revenue volatility has important consequences regarding public administration and the choices state governments make. This work explores the connection between fiscal limits—specifically, tax and expenditure limitations (TELs), balanced-budget rules (BBRs), and super-majority voting requirements (SMRs)—and state revenue volatility. While growth is the most common measure for judging the impact of fiscal constraints, there is a growing literature that argues that volatility, or risk, of state revenue streams is equally important. This work looks at 48 states (Alaska and Nebraska are dropped) over a 37-year period (1969-2005) to assess how fiscal constraints are associated with the volatility of state revenue streams. The evidence suggests that states with strict BBRs and SMRs tend to have lower levels of revenue volatility, while strict TELs tend to be associated with higher levels of revenue volatility. However, given that states often have adopted more than one of these limits, the evidence suggests that strong BBRs have a very strong moderating effect on the impact of TELs. States with super-majority rules tend to start at lower levels of volatility; however, they have little influence on the impact of the other limits.

The Drivers of Public Sector Pension Reform Across the U.S. States

Source: Michael Thom, The American Review of Public Administration, Volume 47, Issue 4, May 2017
(subscription required)

From the abstract:
This study analyzes the diffusion of public sector pension reforms across the American states between 1999 and 2012, a policy area notable for its fiscal implications as much as its recent political polarization. Previous enactment in other, non-contiguous states was the largest and most consistent driver of reform. Otherwise, empirical findings suggest that reform antecedents varied by reform type. Existing funding levels reduced the likelihood that states would cut benefits, change pension governance, or reduce cost of living allowances, but had no effect otherwise. Evidence for partisan legislative influence is weak, although Republican control had partial, positive effects on the enactment of pension governance reforms and increases to the retirement age. Across the board, other relevant factors such as constitutional pension protections, collective bargaining rights, and union membership density had no effect. That external contagion pressures have a more robust influence than endogenous conditions raises questions about the future efficacy of pension reform.

When State and Federal Laws Clash: The Possible Showdown Over Marijuana Laws

Source: Heather Trela, Rockefeller Institute of Government blog, April 2017

The 2016 election was memorable for many reasons, but lost in the shadow of the presidential outcome was the big night marijuana legislation had in the states. Three states (Arkansas, Florida, and North Dakota) passed initiatives legalizing medicinal marijuana, marking the first time that more than half of the states have permitted the use of medicinal marijuana. Voters in Montana rolled back some restrictions on their existing medical marijuana law. Meanwhile, California, Maine, Massachusetts, and Nevada all passed legislation to allow for recreational marijuana use. The only loss for marijuana at the voting booth in 2016 was in Arizona, where voters rejected Proposition 205, which would have legalized recreational use of marijuana by adults 21 and older (medicinal marijuana laws passed in Arizona in 2010). In the aftermath of the election, the entire West Coast now permits some type of marijuana use and recreational use gained a foothold in the Northeast. One in five people in the United States now live in a state where marijuana is legal.

While this could be seen as a victory for proponents of such measures, it may be setting states up for a showdown with the federal government….

Preemption Messaging

Source: Grassroots Change, Voices for Healthy Kids, American Heart Association, 2017

From the summary:
…Policies that stop, limit, or discourage local communities from enacting policy solutions are referred to as preemption. Below you will find resources that will help you address preemption in your own state….

Preemption Messaging – All Audiences
Preemption Messaging – Countering Opposition
Preemption – Quotes from the Field

The failure of an early episode in the open government data movement: A historical case study

Source: Xiaohua Zhu, Government Information Quarterly, In Press – Corrected Proof, Available online 6 April 2017
(subscription required)

From the abstract:
The open government data (OGD) movement that focuses on government transparency and data reuse did not appear out of thin air. Some early episodes of this social movement can be traced to the early 1990s.This paper presents a historical case study of such an OGD episode, a campaign targeted at a government database called JURIS, initiated by OGD advocates in the early 1990s. JURIS was a legal information retrieval system created by the Department of Justice and used by government employees, which contained federal court decisions (or case law), among many other primary legal materials. Public interest groups and small publishers intended to open up the database for public access and data reuse, but their effort failed and eventually led to the shutdown of the JURIS system. This paper provides a detailed account of the history, analyzes the reasons of the failure, and discusses outcomes of the campaign. Drawing from social movement theories, especially the political opportunity structure, the paper illustrates the complexity of the social political environment surrounding the OGD movement, especially with regard to an important type of government data, primary legal information, in the United States.

• JURIS campaign was an early episode of open government data social movement.
• Study of a failed case reveals the complexity of open government data movement.
• Many factors shaped access rights to primary legal information in digital format.
• The case reveals the conflicts between public access and information privatization.
• The OGD movement needs favorable political culture and strong allies to succeed.

Federal Policy Priorities: Strengthening the Direct Care Workforce

Source: Robert Espinoza, PHI, 2017

From the abstract:
A federal investment in the direct care workforce would promote better wages and benefits, enhance training, and create advanced roles. It would also regularly collect data on the workforce, expand access to services and supports, and thread the contributions of family caregivers with those of paid caregivers, ultimately creating a vibrant system of care. In response, PHI has released a new federal policy report that details recommendations across these issues. This report speaks to a new presidential administration and a new Congress about the needs of direct care workers—and the millions of older people and people with disabilities they serve.