Off the Kuff Rotating Header Image

Massachusetts

Multiple cities and states sue over Census citizenship question

Good.

Seventeen states, the District of Columbia, and six major cities sued the Trump administration on Tuesday over the addition of a controversial new question about US citizenship to the 2020 census. This is the third major lawsuit against the administration’s action, after California and the NAACP sued last week, marking a major escalation of the legal and political battle over the census. Civil rights advocates say the question is designed to spark fear in immigrant respondents and will cause many immigrants not to be counted, diminishing the political power and financial resources of the jurisdictions where they live.

“This is a blatant effort to undermine the census and prevent the census from carrying out its Constitutional mandate,” said New York Attorney General Eric Schneiderman, who organized the multi-state lawsuit, at a press conference in lower Manhattan. New York has the third-largest immigrant population in the country, after California and Texas. More than 1 in 5 New York residents are foreign-born. “This is an effort to punish states like New York that welcome immigrants,” Schneiderman said.

The lawsuit says the new question “violates the constitutional mandate to conduct an ‘actual Enumeration’” of the country’s entire population, not just citizens, as well as a provision of the 1946 Administrative Procedure Act barring federal agencies from taking “arbitrary, capricious” actions.

The lawsuit was filed by New York, Connecticut, Delaware, Illinois, Iowa, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia, and joined by the cities of Chicago, New York, Philadelphia, Providence, San Francisco, and Seattle. The bipartisan US Conference of Mayors, which represents the 1,400 cities with a population of 30,000 or more, also joined the suit.

[…]

Past leaders of the Census Bureau and current advisers to the bureau have also blasted the question. Six former bureau directors, who served under Republican and Democratic presidents, told Commerce Secretary Wilbur Ross in January that “an untested question on citizenship status at this late point in the decennial planning process would put the accuracy of the enumeration and success of the census in all communities at grave risk.” Members of the bureau’s Scientific Advisory Committee, who are appointed by the director, blasted the decision at a meeting of the Census Bureau last week.

“I want to say in no uncertain terms that I think this is an absolutely awful decision,” said D. Sunshine Hillygus, a professor of political science at Duke University. “I am dumbfounded that this decision is coming in at such a late date. My view is that this is going to have severe negative implications for data quality and costs.”

She began her PowerPoint presentation at census headquarters with the phrase “W.T.H.,” short for “what the hell.”

The Commerce Department, which oversees the census, said the new question was needed to better enforce the Voting Rights Act, but Vanita Gupta, the former head of the Justice Department’s Civil Rights Division under Barack Obama, told Mother Jones that was “plainly a ruse to collect that data and ultimately to sabotage the census.”

See here for some background. Even with the involvement of the US Conference of Mayors, I say every city of decent size should want to get involved, because it’s their residents who are going to be undercounted as a result of this malevolent policy, and that will cost them in terms of funding, representation, and more. This is a big, serious deal and it needs to be treated as such. Think Progress, which also looks at the effect of this policy on Texas, has more.

Uber drivers sue over employment status

This will be worth watching.

Lawyers for 19 Texas drivers for Uber on Friday filed a federal class-action lawsuit in Houston, claiming the ride-hailing app company’s oversight and control of supposedly independent drivers is so pervasive, they should be considered employees.

If successful, the lawsuit could mean the thousands of local drivers for the company suddenly would be Uber workers instead of independent contractors, upending what some have considered an innovative business model and others have called modern-day servitude.

“The primary issue is, are these guys employees or independent contractors,” Houston lawyer Kevin Michaels said. “Uber tracks every move that a driver makes… As long as they are on the app, they are under Uber’s control.”

Uber officials Friday afternoon did not respond to multiple requests for comment.

Lawyers said in the filing to the U.S. District Court for the Southern Division of Texas, the drivers made less than minimum wage when their time awaiting fares is calculated, despite the company’s claims in promotional materials that drivers could earn $100,000 a year.

“Given the current fare structures, an individual would have to drive an exorbitant number of hours on a daily, weekly and monthly basis to even approach gross fares totaling this amount, much less earn this amount,” the lawyers wrote. “Uber knew such statements were fraudulent and misleading and also knew that individuals would rely on such misrepresentations when deciding to become Uber drivers.”

[…]

The lawsuit filed Friday makes claims similar to those in various courts across the nation. A number of cases in California, Illinois, Massachusetts and other states already have drawn wide attention that could put the question on a path to the U.S. Supreme Court, should various circuit courts rule in different ways.

“It is definitely going to be years,” said Wilma B. Liebman, former chairwoman of the National Labor Relations Board.

It is the second lawsuit filed on behalf of drivers by Michaels. The first, filed by three drivers, prompted Friday’s filing, which adds claims that drivers should be considered employees under the Fair Labor Standards Act of 1938.

As noted, there are several of these lawsuits around the country. I think the California one is the oldest, but none have had any decisions rendered as yet. I can’t say I actually believe the drivers will win, but who knows what could happen. The DMN has more.

Other AGs for same sex marriage

Wouldn’t it be nice to have someone like one of these 15 Attorneys General representing Texas?

RedEquality

A majority of the states that have legalized same-sex marriage are throwing their support behind two couples fighting Texas’ ban, arguing their own experiences show only positive effects from expanding the right to gays and lesbians.

[Last] Monday, the attorneys general of 15 states and the District of Columbia filed a “friend of the court,” or amicus, brief supporting the couples’ case pending before the 5th U.S. Circuit Court of Appeals. Writing for the group, counsel for Massachusetts Attorney General Martha Coakley asserts that denying lesbians and gays the right to marry could have harmful effects.

“The continued exclusion of same-sex couples (many of them parents) from the institution of marriage actually serves to harm adults, children and the broader community,” wrote Boston-based attorney Jonathan B. Miller. “This is a case where the exclusion of same-sex couples … irrationally undermines important governmental interests.”

Miller goes on to argue that marriage – whether between a man and a woman or same-sex partners – preserves public order, promotes stable family bonds and ensures economic security.

More family units mean more opportunities for adoption, while expanding marriage rights also benefits the physical and psychological health and economic prosperity of same-sex partners, he wrote.

Drawing from their own experiences, the brief says these 15 states and D.C. “have seen only benefits from marriage equality” and calls Texas’ continued ban “alarmism that is unfounded.”

Our own Attorney General, who will no doubt claim he’s under attack by these amicus briefs and thus the real victim here, is of course opposed to marriage equality and is kind of a jerk about it. It doesn’t have to be like this, and in fact we can change course next month. Democrat Sam Houston is on record saying he would not pursue further appeals of the earlier federal court decision that threw out Texas’ ban against same sex marriage. He said as much in the interview I did with him. Go listen to it, as Lone Star Q did, and hear for yourself.

And with the action by the Supreme Court letting rulings striking down laws against same sex marriage stand in three other circuits, the Fifth Circuit appeal takes on greater significance.

By refusing to hear same-sex marriage appeals from five states that had banned such unions, the U.S. Supreme Court may have set the stage for using Texas’ prohibition as the basis of a future landmark ruling.

[…]

“If the 5th Circuit decides to uphold the ban, there’s a very strong possibility that the Texas case could be a landmark (Supreme Court ruling) two years from now,” said Cary Franklin, a professor at the University of Texas School of Law in Austin.

An upholding of Texas’ ban of same-sex marriage would create disagreement among the federal circuit courts, which have so far been in unison of their support of overturning such bans. In such a circumstance, the Supreme Court might be more likely to step in.

Monday’s action “signals, I hope, the direction the court is going,” said Rebecca Robertson, legal and policy director of the ACLU of Texas. “It’s hard not to look at this optimistically.”

The state’s reply brief to the plaintiffs is due October 10. We are still waiting for the Fifth Circuit to set a date for oral arguments, but the good news is that they have now agreed to fast track the case. One hopes this time Abbott’s office can turn in its homework on time and not drag its feet. It’s generally wise to expect the worst from the Fifth Circuit, but this is one of those times where it’s reasonable to hope for something better. I look forward to this getting finished.

Of interest will be how the Fifth Circuit interprets the non-action by SCOTUS. Lyle Denniston prognosticates:

Third, four other circuits — the Fifth, Sixth, Ninth, and Eleventh — are currently considering the constitutionality of same-sex marriages. Of those, the Ninth Circuit — which had earlier struck down California’s famous “Proposition 8″ ban and uses a very rigorous test of laws against gay equality — is considered most likely to strike down state bans. If that happens, it would add five more states to the marriages-allowed column (Alaska, Arizona, Idaho, Montana, and Nevada), which would bring the national total to thirty-five.

The reaction in those four circuits could depend upon how they interpret what the Supreme Court did on Monday.

If the Court is not likely to uphold any state ban, either on same-sex marriage in the first place or recognition of existing such marriage, lower courts may see good reason to fall in line. The Court’s actions, however, do not set any precedent, so lower courts are technically free to go ahead and decide as they otherwise would.

If they interpret the denials of review as providing no guidance whatsoever, then they would feel free to proceed without reading anything into what the Court has in mind.

It is very hard, however, to interpret the Justices’ actions as having no meaning. Here are the reasons why the denial orders were such a surprise:

Go read the rest. As if on cue, the Ninth Circuit affirmed the lower court ruling that struck down bans in Idaho and Nevada. Emily Badger thinks that the Supremes have basically already had their say in the Windsor decision, which has been the guidepost for the lower courts so far, but Dahlia Lithwick strongly believes SCOTUS still needs to explicitly call same sex marriage bans discrimination before it can say it has concluded its business. Either the Fifth Circuit or the Sixth Circuit might go their own way and uphold the bans, which would force SCOTUS to act sooner rather than later. And as Philip Bump reminds us, South Carolina and Alabama both lad laws banning miscegenation on their books until 1998 and 2000, over 30 years after the Loving decision rendered them unenforceable. So yeah, we are not done here yet. Lord knows, the forces against progress aren’t done; as Ed Kilgore notes, they’re already retuning their dog whistles. There’s a lot more of this story to be told. Hair Balls has more.

No Medicaid expansion for you!

So much for that.

Texas will not expand Medicaid or establish a health insurance exchange, two major tenets of the federal health reform that the U.S. Supreme Court upheld last month, Gov. Rick Perry said in an early morning announcement.

“I stand proudly with the growing chorus of governors who reject the Obamacare power grab,” he said in a statement. “Neither a ‘state’ exchange nor the expansion of Medicaid under this program would result in better ‘patient protection’ or in more ‘affordable care.’ They would only make Texas a mere appendage of the federal government when it comes to health care.”

Perry’s office said he’s sending a letter to U.S. Health and Human Services Secretary Kathleen Sebelius [Monday] morning asserting his opposition, both to accepting more than a hundred million federal dollars to put more poor Texas adults onto Medicaid, and to creating an Orbitz-style online insurance marketplace for consumers.

Of course, opting out of creating a state exchange means that the federal government will create one instead. It does not mean there will be no exchange in Texas. This is why some Republican legislators like Rep. John Zerwas tried to pass a bill to create an exchange, so that it would be implemented by Texas instead of the federal government. The rationale for not implementing the state-run exchange confounds me, but I have never been Rick Perry’s intended audience.

As for the refusal to expand Medicaid, just on Friday the Dallas Morning News reported that Perry was still thinking about it.

Gov. Rick Perry won’t say whether Texas should take or reject the federal largesse that could allow the state’s Medicaid program to cover more poor adults.

But a spokeswoman confirmed Friday that his aides have begun canvassing health care provider groups for their opinions about expanding Medicaid and creating a state health-insurance exchange

Though he’s a staunch opponent of President Barack Obama’s federal health care law, Perry’s reluctance to declare immediate opposition to the Medicaid expansion after the Supreme Court’s ruling last week puts him at odds with several other Republican governors. Some, such as Florida’s Rick Scott, have already vowed to keep their states on the sidelines, taking advantage of the court’s ruling that they can do so without jeopardizing the funds they already receive.

Perry spokeswoman Catherine Frazier played down the calls as routine outreach on a major issue. But several health-care lobbyists and experts said it’s shrewd for Perry to say little because the Supreme Court ruling gives him leverage to negotiate with the Obama administration for tighter Medicaid eligibility rules and leaner benefits before agreeing to the expansion, which would take place starting in 2014.

“It’s smart politics because there’s no need to make a decision at this time, and he and a lot of Republicans are playing for more flexibility within the program,” said Tom Banning, chief executive and executive vice president of the Texas Academy of Family Physicians.

Apparently, he didn’t listen very closely to what the health care providers want, because they have made their preference quite clear.

Getting the Medicaid expansion in place has already become the “number one priority” for the Texas Hospital Association, said John Hawkins, the senior vice president for advocacy and public policy at the organization. “It’s the kind of thing that hits our members right on the margin when they’re trying to digest other payment cuts,” he said.

Twenty-seven percent of working-age Texans, or more than 6.1 million people, were uninsured in 2010, according to the Kaiser Family Foundation. That’s the highest rate in the nation and the second-highest number to California’s 7 million people. Under the Medicaid expansion, 2.5 million Texans would qualify, the Urban Institute estimates.

But Texas Gov. Rick Perry (R) has been a staunch opponent of health care reform and his administration has indicated a willingness to opt out of the Medicaid expansion. For Texas hospitals, which absorbed $4.6 billion in unpaid bills and charity care in 2010, that’s a problem, Hawkins said.

I’m thinking that will provide for some interesting fundraising pitches this fall. My advice to them is to start donating to Democrats now.

So now Rick Perry will take a victory lap on Fox News and bask in the adulation of his cultish supporters. Everyone else will have to deal with the reality of this, starting with county taxpayers.

It's constitutional - deal with it

Unlike many states, Texas does not directly subsidize the cost of caring for the uninsured. Instead, taxpayers in Dallas County and elsewhere help pick up that tab through property taxes that support safety-net hospitals such as Parkland Memorial Hospital.

Last year, Parkland reported that its own cost for delivering uncompensated care was $335 million. Dallas County taxpayers funded $425 million, or 35 percent, of the hospital’s operating budget.

For the average Dallas County homeowner, that created a hospital tax bill of $370.

Some advocates of health reform say the new revenue from Medicaid payments is large enough that hospital districts — whose budgets are controlled by county commissioners — could reduce their tax rates.

[…]

Some experts expect that Texas will eventually accept the Medicaid funding. After all, the federal government would cover the entire cost of the expansion between 2014 and 2016. Hospitals that have struggled to find ways to offset charity care are certain to demand that state lawmakers take the money.

“It really depends on the political pressure they get from the counties and the hospitals that benefit from having these people covered,” said John Holahan, director of the Urban Institute’s Health Policy Center. “To leave all this federal money on the table will create an intense debate.”

The hospitals are big losers as well.

Hospitals regularly get stuck with bills that the uninsured cannot afford to pay. Every year, the American Hospital Association adds all those bills up to calculate the total amount of uncompensated care that its members provide. Every year, the number gets bigger and bigger, hitting $39.3 billion in 2010. Here’s a chart I put together with the AHA data:

Under the health reform law, hospitals will see reductions in some of their Medicare reimbursement rates. They will be forced to deliver higher quality or see financial consequences.

All of that was worth it, in hospitals’ eyes, because of the insurance expansion. That would finally put someone on the hook for the medical bills that have, for decades, gone unpaid.

If states opt-out of the Medicaid expansion, that essentially means there’s no one on the hook for some of the poorest patients. And that explains why Bruce Siegel, president of the National Association of Public Hospitals, calls states opting out a “potentially disastrous outcome” and is urging Congress to come up with a fix. For them, the status quo is the worst possible outcome: One where they have accepted cuts to Medicare, and still get stuck with billions in unpaid bills.

Remember, a part of the Affordable Care Act was a reduction in the federal subsidy for uncompensated care costs because it assumed the expansion of Medicaid would greatly reduce the number of uninsured patients. Unfortunately, no one foresaw the SCOTUS decision striking down the provision that states would lose existing Medicaid funding if they didn’t accept the subsidies to expand it, and so here we are. Just as a reminder, states like Texas that have a lot of uninsured people would have benefited greatly from it as a result. It was a simple case of red state/blue state math.

The deal the federal government is offering states on Medicaid is too good to refuse. And that’s particularly true for the red states. If Mitt Romney loses the election and Republicans lose their chance to repeal the Affordable Care Act, they’re going to end up participating in the law. They can’t afford not to.

Medicaid is jointly administered between states and the federal government, and the states are given considerable leeway to set eligibility rules. Texas covers only working adults up to 26 percent of the poverty line. The poverty line for an individual is $11,170. So, you could be a single person making $3,000 a year and you’re still not poor enough to qualify for Medicaid in Texas. That’s part of the reason Texas has the highest uninsured rate in the nation.

Massachusetts, by contrast, covers working adults up to 133 percent of the poverty line — partly due to a former governor whose name rhymes with Schmitt Schmomney. It’s a big reason it has the lowest uninsured rate in the nation.

The Affordable Care Act wants to make the whole country like Schmitt Schmomney’s Massachusetts. Everyone earning up to 133 percent of the poverty line, which is less than $15,000 for an individual, gets Medicaid. And the way it does that is by telling states the feds will cover 100 percent of the difference between wherever the state is now and where the law wants them to go for the first three years, and 90 percent after 2020.

To get a sense of what an incredibly, astonishingly, unbelievably good deal that is, consider this: The federal government currently pays 57 percent of Medicaid’s costs. States pay the rest. And every state thinks that a sufficiently good deal to participate.

But, somewhat perversely, the states that get the best deal under the law are states like Texas, which have stingy Medicaid programs right now, and where the federal government is thus going to pick up the bill for insuring millions and millions of people. In states like Massachusetts, where the Medicaid program is already generous and the state is shouldering much of the cost, there’s no difference for the federal government to pay.

So if Texas had accepted Medicaid expansion, it would have gotten a vastly better deal than states like New York, California, and Massachusetts. Now that Texas has decided to “send that money back” to Washington, we will subsidizing the Medicaid expansions of New York, California, and Massachusetts, and getting nothing in return. Does that sound like a good idea to you? BOR, Neil, EoW, Juanita, Hair Balls, Ed Kilgore, Sarah Kliff, and Rep. Garnet Coleman have more, and statements from Rep. Jessica Farrar and Sen. Rodney Ellis are beneath the fold.

(more…)

Why 18?

The legal voting age has been 18 for forty years now, but some people would like it to be lower, at least for their local elections.

Critics of the young people sleeping on cardboard at Occupy Wall Street argue the next generation should engage in the political process, not merely protest it. But some very politically engaged young people in Lowell, Massachusetts, are revealing that the political system doesn’t exactly welcome their engagement.

Earlier this year, 1,500 members of the United Teen Equality Center (UTEC) launched a campaign in Lowell to lower the voting age to 17 for city elections. The entire effort, from fundraising, to door knocking to lobbying legislators, was organized and led by the teens. They made an eloquent case for lowering the voting age.

“When you’re 17, that’s when most of us are seniors,” said Carline Kirksey, one of the youth leaders of the campaign. “You have more adult responsibilities. You can join the military. You can be tried as an adult in court.”

Another organizer Corinne Plaisir chimes in, saying that at 18 many young people are off at college. Figuring out the process all alone and voting unceremoniously by absentee ballot aren’t exactly enticements to civic participation. Instead, argues Plaisir, if young people can start voting in high school as part of their civics education, “It’s a prime time to engage in our civic rights.” Plus research has shown that when teens engage in even mock elections, their voter turnout as adults increases by almost 10 percent.

Better be careful, that sort of things can get you in trouble in Florida. I support this idea, and like Yglesias I’d be happy to see it extended, to more elections and younger voters. Of course, we’d need a political system – not to mention a society – that actually valued higher levels of participation for that to happen. Given the broad and sustained war on voting that is the hallmark of the modern Republican Party, I don’t see that happening any time soon.

Who will administer Texas’ health insurance exchange?

As we know, one of the provisions of the Affordable Care Act is the creation of health insurance exchanges for those who are currently uninsured and need assistance in getting it. The states are supposed to operate these exchanges, and that means some kind of action needs to be taken to get it up and running. In particular, some entity needs to be responsible for it. State Rep. John Zerwas, the chair of the House Select Committee on Federal Legislation, thinks that a new agency may need to be created for this purpose.

Zerwas, of Richmond, said he was not sure yet if the new entity would be a commission or an independent agency or something else.

But he said he does believe an organization other than the state Department of Insurance or the Health and Human Services Commission will be needed because neither agency has the capacity to take on the task.

Because of so many unknowns, Zerwas was unable to say how much money and how many people would be needed.

Zerwas added that one model could be the authority that handles a health insurance exchange in Massachusetts, the only state that currently requires residents to buy insurance.

Massachusetts Health Connector, an independent state agency that helps residents find health care coverage, opened in 2006 with $25 million in seed money appropriated by the Massachusetts Legislature. It has about 50 employees and generates its own revenue, spokesman Dick Powers said.

In Texas, legislative action would be needed to create an entity to oversee an exchange , Zerwas and other lawmakers said.

“I would be receptive to being the author,” Zerwas said.

Zerwas was an unconvincing critic of the health care legislation as it was being crafted and debated, but I have no reason to think he’d do anything but a good job figuring this out; State Rep. Garnet Coleman is also on this committee, which is an even stronger reason for optimism. I don’t have a preference at this time for how this should be approached, but with any Texas agency, the main concern is always oversight. The list of state agencies that have demonstrated that they cannot be trusted without strict supervision is a long one, and though that’s more than partially the fault of the guy who picks the heads of these agencies, this isn’t exactly a new problem. So let’s please try to get this right.