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….

How the Black Lives Matter Movement Is Mobilizing Against Trump

Source: Brandon Ellington Patterson, Mother Jones, February 7, 2017

Donald Trump repeatedly expressed hostility towards Black Lives Matter activists during his presidential campaign, particularly for their efforts to confront police brutality. Now, faced with a Trump agenda whose repercussions for African Americans could reach far beyond policing, BLM organizers say they are broadly expanding their mission. …. In the wake of Trump’s immigration order, BLM organizers mobilized their networks to turn out at airports to protest. The groups also fired up their social media networks to amplify calls for the release of detained travelers. BLM leaders say their strategy will evolve as more details become known about what Trump plans to do on matters ranging from policing and reproductive rights to climate change and LGBT issues. They will focus on combating what they see as Trump’s hostile, retrograde agenda—and that of right-wing politicians emboldened by Trump—primarily at the state and local levels. ….

Sicker-Than-Anticipated ACA Enrollees Caused Major Problems for State Individual Health Marketplaces over Past Four Years, New Brookings-Rockefeller Research Finds

Source: Nelson A. Rockefeller Institute of Government, Press Release, February 9, 2017

Due to the higher-than-expected costs of new Obamacare enrollees, many health insurers were unable to turn a profit and thus left the Affordable Care Act (ACA) marketplace exchanges —- further increasing premiums for remaining enrollees —- according to a new five-state study from the Center for Health Policy at Brookings Institution and the Rockefeller Institute of Government of the State University of New York (SUNY). The study highlights the difficulties of meeting the ACA’s goals of competition and consumer choice, especially in rural areas and urban places with high concentration of providers. …

… Several factors caused a substantial shift toward narrower insurer networks that offered more health maintenance organization (HMO) plans than broad preferred provider organization (PPO) plans, the authors found. Enrollees with pre-existing conditions disproportionately joined PPOs in order to maintain access to their current doctors and specialists, increasing the cost of offering these plans. Insurers also faced hurdles, negotiating lower prices within PPOs because they could not trade higher patient volumes for lower prices as they could when negotiating with HMOs. By the third year of the ACA, insurers reduced the number of PPO plans they offered and many switched to offering only HMOs. In Texas, no insurer currently offers a PPO product in the individual market. Although the authors caution against generalizations from their five-state sample, they conclude that if policymakers craft an ACA replacement that continues to rely on insurer markets, they should bear in mind the large local differences that exist; there is uncertainty about adverse selection and risk; market competition is dependent on the local provider base; there is a tendency toward narrowing networks; and insurers adjust rapidly to recent experiences.

Read the five-state summary
Read the California study
Read the Florida study
Read the Michigan study
Read the North Carolina study
Read the Texas study

Related:
How has Obamacare impacted state health care marketplaces?
Source: Michael Morrisey, Richard P. Nathan, Alice M. Rivlin, and Mark Hall, Brookings Institution, February 9, 2017

Supreme Court Appointment Process: President’s Selection of a Nominee

Source: Barry J. McMillion, Congressional Research Service, CRS Report, R44253, February 6, 2017

The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment is of consequence because of the enormous judicial power the Supreme Court exercises as the highest appellate court in the federal judiciary. Appointments are usually infrequent, as a vacancy on the nine-member Court may occur only once or twice, or never at all, during a particular President’s years in office. Under the Constitution, Justices on the Supreme Court receive what can amount to lifetime appointments which, by constitutional design, helps ensure the Court’s independence from the President and Congress.

The procedure for appointing a Justice is provided for by the Constitution in only a few words. The “Appointments Clause” (Article II, Section 2, clause 2) states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ..Judges of the supreme Court.” The process of appointing Justices has undergone changes over two centuries, but its most basic feature—the sharing of power between the President and Senate—has remained unchanged: To receive appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate.

Political considerations typically play an important role in Supreme Court appointments. It is often assumed, for example, that Presidents will be inclined to select a nominee whose political or ideological views appear compatible with their own. The political nature of the appointment process becomes especially apparent when a President submits a nominee with controversial views, there are sharp partisan or ideological differences between the President and the Senate, or the outcome of important constitutional issues before the Court is seen to be at stake.

Additionally, over more than two centuries, a recurring theme in the Supreme Court appointment process has been the assumed need for professional excellence in a nominee. During recent presidencies, nominees have at the time of nomination, most often, served as U.S. appellate court judges. The integrity and impartiality of an individual have also been important criteria for a President when selecting a nominee for the Court…

Report to the New Leadership and the American People on Social Insurance and Inequality

Source: Benjamin W. Veghte, Elliot Schreur, and Alexandra L. Bradley (eds.), National Academy of Social Insurance, January 2017

From the abstract:
Our nation’s social insurance infrastructure forms the foundation of economic and health security for American workers and their families. Like all infrastructure, it must be periodically strengthened and modernized if it is to continue to meet the needs of a changing economy and society. This Report presents the new Administration and Congress with a range of evidence-based policy options, developed by the nation’s top social insurance experts, for doing so.

The first part of the Report takes stock of the policy challenges facing existing social insurance programs: Social Security, the major health insurance programs, and Unemployment Insurance. The second part discusses potential new directions for social insurance in coping with emerging needs in the areas of long-term services and supports, caregiving supports, and nonstandard work.

Republicans Are Set to Destroy Iowa’s Labor Unions

Source: Emmett Rensin and Lucy Schiller, New Republic, February 7, 2017

With the GOP now in full control of the state, 40 years of carefully negotiated agreements are about to be erased. ….

….In 1974, a few years after a public teachers’ strike in which schoolteachers spent 19 hours in jail cells, then–Republican Governor Robert Ray signed the Iowa Public Employment Relations Act into the Iowa Code. The legislation was hyped as a thoughtful balance between employers’ and public unions’ interests. Chapter 20, as the deal came to be called, presented Iowa’s public workers with a trade-off: They lost the right to strike, but won the legal recognition of their unions and their right to collective bargaining. The law outlined mandatory bargaining issues, topics on which employers were required to negotiate, including wages, insurance, overtime, vacation, health and safety. While not entirely satisfying to either party, Chapter 20 has essentially worked: No public sector workers have struck since 1974, and each year, 98 percent of public contracts move forward without binding arbitration.

But now, with the GOP fully in control of the state, a cadre of Republicans have moved to gut Chapter 20, beginning with a bill introduced Tuesday morning that moves both health insurance and supplemental pay from the mandatory to prohibited column. If passed, the bill would bar Iowa public unions from raising these topics in negotiation, thereby allowing public employers to unilaterally impose whatever terms they like. ….
Related:
Iowa Republicans propose sweeping changes to collective bargaining laws, public unions
Source: Brianne Pfannenstiel and William Petroski, Des Moines Register, February 7, 2017

Republican lawmakers on Tuesday proposed sweeping changes to Iowa’s collective bargaining laws that govern the way 184,000 of the state’s teachers, corrections officers and other public sector union workers negotiate for wages, health care and other employment benefits.

Representatives from labor unions across the state filled the Capitol to protest the changes, chanting and holding signs while urging their elected officials to back down from a piece of legislation that faces all but inevitable passage. ….

….. Since gaining control of the House, Senate and governor’s office for the first time in nearly 20 years, Iowa Republicans have called collective bargaining reform one of their top priorities. Both the House and Senate plan to hold subcommittees on the legislation Wednesday, setting it on a course to receive final approval from the governor as early as next week. Gov. Terry Branstad even called an unscheduled afternoon press conference with Lt. Gov Kim Reynolds and Republican legislative leaders to express his support for the bill. ….

…. The bills — House Study Bill 84 and Senate File 213 — also would require unions to go through a certification process ahead of each new contract negotiation. That would require a majority of their members to agree to be represented by union negotiators …..