Republicans turn on each other amid post-Roe chaos

“Republican state officials have been waiting decades for the chance to ban abortion.

Now that they can, red state lawmakers are mired in partisan infighting and struggling to agree on how far to go. The most fervently anti-abortion lawmakers are accusing their colleagues of capitulating on rape and incest exceptions, while those calling for compromise or moderation believe more strident Republicans are ignoring political realities.”

The Forgotten Constitutional Weapon Against Voter Restrictions

“perhaps a largely forgotten provision of the Constitution offers a solution to safeguard American democracy. Created amid some of the country’s most violent clashes over voting rights, Section 2 of the 14th Amendment provides a harsh penalty for any state where the right to vote is denied “or in any way abridged.”

A state that crosses the line would lose a percentage of its seats in the House of Representatives in proportion to how many voters it disenfranchises. If a state abridges voting rights for, say, 10 percent of its eligible voters, that state would lose 10 percent of its representatives — and with fewer House seats, it would get fewer votes in the Electoral College, too.”

What It Would Mean For Elections If The Supreme Court Embraces An Extreme Legal Theory

“Do state courts have the power to interpret their own state constitutions? The Supreme Court could be poised to say “no” — at least when it comes to redistricting and election law.

Last week, the Supreme Court agreed to hear the case Moore v. Harper in the coming fall term. In that case, Republican legislators in North Carolina are asking the court to overturn the state Supreme Court’s decision to throw out their gerrymandered congressional map and impose one of the court’s own.

Their argument rests on an extreme reading of the elections clause of the U.S. Constitution that posits that only state legislatures and Congress have the authority to decide how federal elections are run. Under this school of thought, known as the “independent state legislature” theory, state courts would no longer be able to intervene — even when a legislature violated the state’s constitution, as was found to be the case in North Carolina.

The independent state legislature theory is fewer than 25 years old, and for most of its life, it’s been relegated to the fringes of academia. But it was widely promoted by former President Donald Trump and his allies as they attempted to first undermine — and then overturn — the outcome of the 2020 presidential election. And several Supreme Court justices have already suggested that they’re on board with the theory. During litigation over election laws in Pennsylvania and Wisconsin in 2020, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch endorsed some version of the idea that state legislatures should have nearly unfettered power over how federal elections are run, and earlier this year, they said in an emergency-docket ruling that they would have ruled in favor of the North Carolina legislature.

If the Supreme Court sides with North Carolina Republicans in this case, it would have massive implications for election law. Depending on how the court rules, state courts might no longer be allowed to strike down legislatures’ proposed congressional maps for being gerrymandered. And if this happens, the way American elections are conducted would change in dramatic and destabilizing ways.”

“An extreme embrace of the theory by the Supreme Court would hand legislatures power over every aspect of how federal elections are run, to the exclusion of not only state courts but also possibly other state actors like governors and election administrators. “It would be a voter suppressor’s fever dream,” Wolf said.”

“the impact wouldn’t stop at redistricting. The Constitution’s elections clause also covers every aspect of how federal elections are run. That includes the 56 voting restrictions passed since the 2020 election — laws that require ID in order to vote, discourage absentee voting, move up voter deadlines, cut early voting, purge voters from the rolls and ban giving food and water to voters waiting in line.”

“Similarly, courts would not be able to unilaterally change federal election laws in an emergency, like the Pennsylvania Supreme Court did in 2020 when it extended the deadline for absentee ballots to be received amid widespread delays in postal service. “If the state legislature says, ‘Polls close at 7 p.m.,’ and on Election Day, there’s a hurricane and the [state] Supreme Court says, ‘Keep them open until 10,’ the legislature wins,” Vladeck said.”

“Some Trump allies have also argued that the independent state legislature theory empowers legislatures to appoint an alternate set of state electors — which, in 2020, could have overturned the presidential election. However, Leah Litman, a law professor at the University of Michigan, said that it’s important to remember that even the independent state legislature theory doesn’t mean state legislatures would be completely unchecked, because the U.S. Constitution would still apply. But she added that part of what alarms her about the theory is that it’s so unclear what embracing it would actually do. “It’s just kind of a mess,” she said of the theory. “We really don’t know what it would look like.””

The States Will Soon Be at Each Other’s Throats Over Abortion

“it will be worse still if what happens in Texas doesn’t stay in Texas. Extra-territoriality still lies over the horizon; Connor Semelsberger, an official with the anti-abortion Family Research Council, told me his organization was far more focused on reviving pre-Roe state laws restricting abortion and on preventing the sale of abortion pills than on pursuing action across the border. Yet efforts to limit the sale of abortifacients will almost inevitably involve enforcement beyond state lines, as is the case with the Texas extradition statute. Katie Glenn, government affairs counsel of Americans United for Life, testified in Texas in favor of the new law and says she expects to see “interstate scuffles” as pro-abortion rights states resist the cross-border reach of anti-abortion legislation. Those scuffles could involve either extradition demands or attempts to hold out-of-state figures, whether doctors or Uber drivers, civilly liable for facilitating an abortion. The new Connecticut statute specifically bars local officials from cooperating with extradition requests over the facilitation of abortion. Just so, in 1850, did Vermont pass legislation requiring citizens to help, rather than apprehend, fugitives running from slavery.
The Supreme Court, which seems to think it will have finally washed its hands of the issue, will have no choice but to adjudicate the dispute. The court has been here before as well. In 1846, Dred Scott, an enslaved man from Missouri, sued for his freedom on the grounds that his enslaver had taken him into Northern territories where he had lived for many years. The case finally reached the Supreme Court in 1857. The court ruled that Scott remained mere property, as the Fugitive Slave Act stipulated. Chief Justice Roger Taney then added, in perhaps the single worst decision in the history of the Supreme Court, that because enslaved people had no “rights which the white man was bound to respect,” the federal government could neither confer citizenship on Black people nor bar slavery in federal territories. The Dred Scott decision convinced Northerners that the “slave power” had gained control over all three branches of government. Slavery could not be extirpated save by war.

The questions that will face the court are, of course, very different this time: Whether the state laws in question violate a principle implicit in the Constitution like the “right to travel,” or which of two conflicting state laws take precedence over the other. Mary Ziegler, a law professor at Florida State University and the author of several books on abortion and the law, says there simply are “no settled answers to these questions.” After all, states have not tried to impose their laws on one another for the past 170 years or so. “There’s not a lot to constrain the justices,” says Ziegler, “which adds to the unpredictability.” One can only hope that the court will act in such a way as to dampen conflict rather than advance the anti-abortion cause, though there’s little reason to have much confidence.”

States Are Flush With Cash

“As state legislators kicked off their 2022 sessions this spring and started planning new budgets, many found that their tax coffers were overflowing. What lawmakers do with that extra money could have long-range consequences.
The excess revenue resulted from a convergence of two windfalls. State tax collections rose sharply in 2021 as the pandemic waned, businesses fully reopened, and consumers started spending again. And the federal government showered states with more than $360 billion as part of the $1.9 trillion American Rescue Plan, passed in March 2021. The passage of President Joe Biden’s $1 trillion infrastructure bill means even more federal taxpayer money for state treasuries in the near future.

All told, state revenues (including federal funds) increased by more than 12 percent in 2021, according to data from the Pew Charitable Trusts. Thirty-two states reported higher than expected revenue in 2021, according to the National Association of State Budget Officers.

As a result, many states now have significant year-over-year budget surpluses for the current year. California leads the way with a $31 billion surplus—an amount larger than many states’ entire annual budgets. Florida ($11.2 billion surplus), Maryland ($4.6 billion), Minnesota ($7.7 billion), and Virginia ($2.6 billion) also have large cash reserves. But state lawmakers should be careful about letting the extra dough burn a hole in their pockets.

“It’s understandable that there is all this pent-up demand for different kinds of new programs or tax cuts,” says Josh Goodman, a senior officer with Pew’s state fiscal health initiative. The impulse to use surpluses for pet projects, Goodman says, ignores data that suggest many states are running long-term structural deficits—largely due to pension obligations and health care costs in programs like Medicaid. “The question is not just what’s the budget situation this year,” Goodman says, “but what is the budget -situation going to be five or 10 years down the road.””

The time to panic about anti-trans legislation is now

“In recent weeks, as Republican politicians in several states have introduced increasingly draconian measures designed to crack down on the lives and well-being of trans teenagers”

“A bill in Idaho, currently being considered by the state Senate after being passed out of the House, perhaps goes furthest in this regard. That bill would make providing medical care to trans youths a felony, punishable with up to life in prison. It would also effectively trap families of trans children in Idaho by forbidding them to travel elsewhere for treatment.”

” exas Gov. Greg Abbott directed that state’s Department of Family and Protective Services to open child abuse investigations into parents who pursue gender-affirming health care for their trans children. A judge issued an injunction against the directive being carried out, but a tweet from Texas Attorney General Ken Paxton suggested that the state will ignore the injunction and continue investigations into families of trans children.”

“There is a reason every major American medical body recommends giving trans children the chance to transition. (Here’s an article from the American Medical Association’s Journal of Ethics making this argument 11 years ago.) Children first transition socially — with changes to their clothing, haircut, and name. Then, with a physician’s guidance, they can block the onset of puberty in early adolescence, and finally start hormone treatment in later adolescence.
This method works. We have records of trans children receiving hormone treatment as long ago as the 1930s. With this approach, trans kids can largely live lives that are indistinguishable from those of cis kids.”

“It’s worth repeating some other basic facts: Affirming trans children’s genders reduces their risk of attempting suicide; the use of puberty blockers in trans kids is safe; children are having bottom surgery only in exceptionally rare cases; and almost every element of trans health care we have was originally developed for cisgender people. (Cis children with precocious puberty have been using blockers for decades!)”

More States Are Proposing Single-Payer Health Care. Why Aren’t They Succeeding?

“Health care policy researchers Erin C. Fuse Brown and Elizabeth McCuskey tracked the number of unique single-payer bills introduced in state legislatures across the country from 2010 to 2019, finding a sharp uptick in bills introduced since 2017. During each of those three years, at least 10 single-payer proposals were introduced, according to Brown and McCuskey’s research, for the first time since 2013. In total, state legislators proposed more single-payer bills from 2017 to 2019 than in the previous seven years combined. And for 2021, we’ve identified 10 single-payer bills that legislators introduced across the country, from liberal states like California and Massachusetts to more conservative ones including Iowa and Ohio.1

What do all these proposals have in common? They’ve all universally failed. In fact, Vermont, the only state that managed to pass single-payer health care in 2011, ended up shelving its plan three years later.”

“passing single-payer health care at the state level is next to impossible, as states are particularly limited in how they can allocate federal and private health care funds. There is, however, evidence that Americans may have an appetite for a public option, or government-run health insurance that people can opt into at the state level. Three states (Colorado, Nevada and Washington) have already passed a public option. It’s not single-payer health care reform, but it’s possible that we might see more states adopt their own public-option reforms.

One big reason single-payer proposals haven’t caught on at the state level is because finding a reliable way to pay for such a program is challenging. Single-payer advocates originally envisioned a federal proposal that would cover all Americans under a more generous version of a preexisting program — that is, Medicare, but now for all. Doing this state-by-state would require each state to apply for waivers to divert federal funds used for Medicare, Medicaid and Affordable Care Act exchanges to be used for their own single-payer plans. And that’s tricky because the Department of Health and Human Services has wide discretion to approve or deny states’ requests, which makes any proposal highly dependent on the national political climate.”

“Employer-sponsored health insurance plans, which cover 54 percent of Americans, are another hurdle for states trying to pass single-payer health care. Federal law largely prevents states from regulating employer-provided health insurance, so states can’t just stop employers from offering their own health care benefits. The exact scope of this law has been litigated for decades, but suffice it to say that it’s successfully put the kibosh on many statewide health care reforms. Single-payer health insurance is particularly tricky as there’s no way to get everyone onto the plan without first changing how private insurance works. States have tried to address this through measures like increasing payroll taxes or restricting providers’ ability to accept reimbursement from private insurance plans. But the more elaborate these mechanisms get, the more complicated it becomes to implement — and the more people that could slip through the cracks.

Finally, another big financial barrier is that state governments have far less leeway than the federal government to increase budgetary spending. That means tax increases, which come with their own political challenges, are often necessary for states to secure the funding they need.”

“All of this creates a daunting picture for statewide single-payer health care.”

COVID Might Help To Kill These Expensive, Anticompetitive Hospital Regulations in South Carolina

“Residents of Fort Mill, South Carolina, had to wait 18 long years for construction to start on a hospital that state regulators determined in 2004 was necessary—and then proceeded to hold up in an absurdly long legal battle that eventually went all the way to the state Supreme Court.
Hopefully, that saga won’t ever be repeated.

The state Senate voted 35–6 on Tuesday to repeal most of South Carolina’s Certificate of Need (CON) regulations that require hospitals and other health care providers to obtain permission from the state before expanding facilities, buying new equipment, or offering new services. Often, those regulations gave de facto veto power to existing providers, which lobby health policy bureaucrats to block the approval of new competition.

That’s exactly what happened in Fort Mill, where plans for a new 100-bed hospital were tied up for more than a decade and a half, in part because a rival hospital wielded the state’s CON laws in an attempt to block the new facility, as Reason previously reported.”

“If the bill becomes law, the Charleston Post and Courier reports, it would clear the way for 28 projects that are currently tied up in legal battles despite having won preliminary CON approval. Another 34 projects awaiting review by the state’s Department of Health and Environmental Control would be able to proceed as well. The paper estimates that those delayed projects represent more than $1 billion in health care investment in the state.”

“that doesn’t include the loss of projects that never materialized in the first place.”

“As part of his emergency order issued when COVID-19 first struck in March 2020, Gov. Henry McMaster (R) suspended enforcement of CON regulations—making South Carolina one of several states to do so because of the pandemic. When it became obvious that the sky wasn’t falling in the absence of those rules, some state lawmakers rightly began to question whether they were needed in the first place”

Democrats have no plan to fight housing inflation

“Over the course of the pandemic, home prices have skyrocketed; the underlying issue is simply that there are not enough homes for the people who need them (in particular in the places where people need to live for their jobs). This supply crisis is forcing a growing number of people to bid on a small number of available homes, thus increasing prices.
But not all “housing investments” are created equal. Generally, there are two ways you can attack an affordability crisis: 1) You work to make the item itself less expensive (supply-side policies), or 2) You give people more money to be able to afford the item (demand-side policies).

Both have their place in policymaking. But if you pursue demand-side policies when you are facing a massive supply shortage, you end up increasing prices, not decreasing them. And the nation is facing an estimated 3.8 million unit shortage.”

“The major constraint on building housing in the places where people are demanding it the most is zoning laws. These laws restrict what kinds of homes can be built and where, and regulate the size of homes to the point that smaller or “starter” homes are becoming incredibly scarce. For instance, a law mandating that lots of land be no less than 4,000 square feet means that starter homes (smaller than 1,400 square feet) are illegal. The history behind these laws is complicated, but essentially they are a way for some homeowners to block change in their communities, and in their original form were a tool of segregationists.

Beyond even small, single-family homes, it is illegal in most of the United States to build duplexes or small apartment buildings that could bring down the cost of housing. The White House has repeatedly acknowledged this problem, but in the Build Back Better bill, Democrats have metaphorically thrown up their hands, abrogating responsibility for the driving force behind skyrocketing home prices.

The best way to have tackled this problem would have been to tie the dollars in the bipartisan infrastructure framework to zoning reform. Iowa law professor Greg Shill suggested tying existing highway dollars to zoning reform, quipping that “there’s no reason Iowans should be subsidizing a highway from Silicon Valley to SF when the Valley makes it illegal to build homes under $1M.”

Essentially, if California wants federal dollars to build highways or transit, it’s going to need to reform policies like parking minimums and minimum lot sizes to get it. Instead, states are being handed money from the federal government to construct transportation networks that exclude large swaths of the American public from using them.

The federal government has held highway funding hostage for other reasons in the past — notably was the 1984 National Minimum Drinking Age Act, which “requires that States prohibit persons under 21 years of age from purchasing or publicly possessing alcoholic beverages as a condition of receiving State highway funds.” President Ronald Reagan also conditioned highway dollars on setting a national minimum speed limit; this was later repealed, which one study shows may have cost over 12,500 lives

If Democrats are serious about attacking housing inflation, they should put real money into incentivizing states to hold localities accountable. States are ultimately in control of local zoning policy “