Endangered frog still in hot water -- Nov. 29, 2018 column

By MARSHA MERCER

The dusky gopher frog hopped into these pages in early October after its appearance, figuratively, before the Supreme Court.

The first oral argument of the term involved the endangered frog’s critical habitat, specifically the federal government’s responsibility under the Endangered Species Act to protect critical habitat versus landowners’ rights.

On Tuesday, the court issued a unanimous opinion in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service -- but did not settle the matter.

The justices sent the dispute, with instructions on two questions, back to the 5^th U.S. Circuit Court of Appeals in New Orleans, which had sided with the wildlife service in 2016.

So the frog is still in hot water.

To recap, the dusky gopher frog (Rana sevosa) historically lived in Louisiana but hasn’t been seen there since about 1965. The frog is named for the gopher tortoise holes where the mature frog lives.

Now found in only three places in Mississippi, the frog was declared endangered in 2001, and the wildlife service designated 1,544 acres in St. Tammany Parish as critical habitat in 2012.

The landowners want to develop the property, and the government and environmentalists want to preserve the land in case it’s needed to save the species.

The case became a cause celebre for property rights advocates who accuse the government of a land grab. The landowners claimed a Supreme Court win.

“In a word: elated. It’s a great victory for our side,” Edward Poitevent whose family has owned the land for generations, told the Associated Press. Weyerhaeuser Co. also owns a part and grows commercial timber there.

Environmentalists were disappointed, but “the ruling doesn’t weaken the mandate to protect habitat for endangered wildlife,” said Collette Adkins of the Center for Biological Diversity.

The case is important because it may signal courts are willing to slow Trump Administration efforts to weaken the Endangered Species Act. Separate efforts by House Republicans to rewrite the species law seem doomed now that Democrats have regained control of the House, but that doesn’t stop the administration’s action.

In oral arguments, three of the four conservative justices seemed sympathetic to the landowners, and Justice Clarence Thomas asked no questions. The four liberal justices seemed sympathetic to saving the frog’s habitat.

Perhaps they agreed to disagree. The vote was 8 to 0 to send back the case. Justice Brett Kavanaugh, who was not yet on the court when the justices heard the arguments, did not participate in the case.

In the opinion, Chief Justice John G. Roberts Jr., seemed to appreciate the quirky critter.

“Warts dot its back, and dark spots cover its entire body. It is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes. Less endearingly, it also secretes a bitter, milky substance to deter would-be diners,” Roberts wrote.

The chief also provided a grammar lesson: “Our analysis starts with the phrase ‘critical habitat.’ According to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat.’ Adjectives modify nouns – they pick out a subset of a category that possesses a certain quality.”

Yes, but. The law also says unoccupied land can be habitat, as Roberts noted in this parenthetical sentence: “(Habitat can, of course, include areas where the species does not currently live, given that the statute defines critical habitat to include unoccupied areas.)”

The Supreme Court batted back to the lower court the warty issues of what constitutes habitat and the economic ramifications of designating the property as critical habitat. 

An economic impact report found the designation potentially could cost the landowners $33.9 million in lost development, but the government concluded the cost was not disproportionate considering the conservation benefits.

“The dusky gopher frog’s habitat protections remain in place for now, and we’re hopeful the 5^th Circuit will recognize the importance of protecting and restoring habitats for endangered wildlife to live,” said Adkins at the Center for Biological Diversity said.

At this point, the frog is in the 5th Circuit, but the prolonged legal battle means it could yet hop back to the Supreme Court.

©2018 Marsha Mercer. All rights reserved.

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Act II for voting rights -- June 27, 2013 column

By MARSHA MERCER

“Voting discrimination still exists; no one doubts that,” Chief Justice John G. Roberts Jr. declared in his Supreme Court opinion that nevertheless shredded part of the federal voting rights safety net.

By a 5-4 vote, Roberts and the four other justices nominated by Republican presidents effectively ended nearly 50 years of federal oversight on voting practices in mostly Southern states that had a history of discrimination.

The court said that times have changed and racial progress has made outdated the decades-old formula Congress used to decide which states had to submit their election law changes in advance.  Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito joined Roberts in the majority opinion.

You won’t be surprised that the four justices appointed by Democratic presidents saw the case, Shelby County v. Holder, much differently.

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” Justice Ruth Bader Ginsburg wrote in a stinging dissenting opinion, which was joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Now what? Until Tuesday, the Voting Rights Act of 1965 required the states of Alabama, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia and Alaska to submit changes in their election laws to the federal government. Parts of California, Florida, Michigan, New York, North Carolina and South Dakota were also required to do so.

Today, those states and localities no longer have to “beseech” – Roberts’ word -- the government for approval. Several states said they’d move quickly to put in place strict new voter ID laws.

Attorney General Eric Holder says the Justice Department will continue to monitor all states and to file lawsuits when questionable steps are taken. Lawsuits take years. Preclearance is a fairly quick process that puts the burden on jurisdictions to prove at the outset that their new election laws do not discriminate.  

The court challenged Congress to rewrite the law’s Section 4, which contains the formula identifying states needing preclearance. The smart money is on Congress to fail, once again, to do anything.  

If members of Congress can’t pass a farm bill or immigration legislation, and might well fight over whether the evening meal is called dinner or supper, how can they possibly agree on politically explosive standards for which states must get federal scrutiny of their election decisions?  

Yes, but…how can Congress NOT act – if the people demand it? It has happened before.

In August 1963, the March on Washington drew more than 200,000 in peaceful demonstration to the Lincoln Memorial. Martin Luther King Jr. gave his “I Have a Dream” speech.

After the march, King and other leaders went to the White House and talked with President John Kennedy and Vice President Lyndon Johnson about the need for bipartisan civil rights legislation. The Civil Rights Act of 1964 and Voting Rights Act of 1965 eventually resulted.  

On the 50^th anniversary of the march and Dream speech, the civil rights community is planning five days of events in August in Washington Leaders say this won’t be a nostalgia trip but a call to restart the civil rights movement and to urge Congress to act on voting rights for the 21^st century.   

For the record, not everyone who has dealt with the preclearance rules has found them burdensome.

“I have generally found the process straightforward, and given the importance of voting, not onerous,” said Sen. Tim Kaine, D-Va., who served as Richmond’s mayor as well as lieutenant governor and governor in a state that had its share of civil rights issues.

Kaine suggested that until Congress acts, jurisdictions previously covered should continue to submit their election changes for preclearance to the Justice Department “as a sign to their own constituents that they are committed to ensuring equal voting rights.” Nice try.

But then Kaine was once a missionary.

The country is becoming more diverse, but members of Congress actually risk little politically if they fail to respond to racial diversity. The average House Republican district is 75 percent white while the average Democratic district is 51 percent white, according to the Cook Political Report. 

So here we are: Everybody agrees voting discrimination is still with us. Democrats and Republicans always say voting isn't a partisan issue. Prove it. Work together on new rules for preclearance and ensure that everybody eligible to vote can do so.

© 2013 Marsha Mercer. All rights reserved.

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Supremely kicking the uninsured -- July 19, 2012 column

By MARSHA MERCER

When the U.S. Supreme Court upheld almost all the Affordable Care Act last month, analysts gushed that it was a stunning victory for President Barack Obama.

It’s becoming clear, though, that the court’s ruling on the Medicaid provision may be a bitter disappointment for low-income workers who are uninsured, especially in the South.

A central promise of the Affordable Care Act is that it will relieve the anxiety and financial insecurity of having to live without health insurance. Most of the uninsured have jobs or live in a household with someone who does, but their employers don’t offer health insurance, they aren’t eligible because they work part-time or they can’t afford the premiums.

Obamacare, as the law is known, provides carrots and sticks for people to obtain affordable health insurance. That’s where Medicaid, the nation’s largest health program in terms of participants, comes in. About 60 million Americans receive health care through Medicaid. About three-fourths are poor children and families and one fourth are elderly or disabled. Seven in 10 nursing home patients are on Medicaid.

The idea was to bring coverage to about 16 million more Americans by 2019 by adding a new category of Medicaid eligibility: adults without children who are under 65, not disabled, and whose income is near the poverty line.

The law presented states with an offer they couldn’t refuse: Expand Medicaid in 2014 to people whose incomes are within 138 percent of the federal poverty level -- $26,344 for a family of three in 2012 -- or forgo all existing federal Medicaid funding.

But Chief Justice John G. Roberts Jr., writing for the majority, said such “economic dragooning” left states no real choice but to participate in the expansion. The court struck down the funding restriction, and states now have the option of rejecting the expansion and sticking with their current Medicaid program without penalty.

Sadly, that means health coverage now depends on geography, with many low-income Americans who can’t afford insurance in limbo and at the whim of their governors.

So far, only a handful of governors will definitely implement the expansion. About a dozen governors, many in the South, have said they may or will reject expansion.Republicans Rick Perry of Texas and Rick Scott of Florida will reject. Those leaning against expansion include Alabama Gov. Robert Bentley and Virginia Gov. Robert F. McDonnell, both Republicans. Tennessee Gov. Bill Haslam, a Republican, is mulling whether to ask for a block grant to run his state’s program. A lump sum payment would come with fewer strings as to how the program operates.

The governors say their main worry is cost, and yet the federal government will pay for expanding Medicaid at first. Uncle Sam will pay 100 percent of the costs for new enrollees for the first three years. After that, states would begin sharing in the new costs, up to 10 percent.

Turn down free money? Highly unlikely, the Obama administration thought. Some veteran political watchers still predict balky states won’t turn down the money come the 2014 election cycle.

The court has left the decision up to each state at a time when the fiscal and political forecast is stormy. A new report on states’ fiscal health by respected economists predicted financial woes that will last long after the economy finally rebounds.

Complicating the matter is a provision in the health law that says those who don’t qualify for Medicaid will be able to get insurance through new marketplaces called exchanges. Those who can’t afford the premiums will be eligible for subsidies.

States are expected to set up the exchanges, but many states have been slow to get started. As with the Medicaid expansion, some may pass. If a state won’t set up an exchange for its residents, the federal government will step in. But there’s yet another catch.

The law says that the uninsured can get subsidies for premiums on state-run exchanges. It doesn’t say subsidies will be available for premiums on federally run exchanges.

That glitch too can be worked out – if there’s a will.

For now, millions of working Americans who lack insurance are still pawns on the great political chess board. And that’s a shame. We can and should do better.

© 2012 Marsha Mercer. All rights reserved.

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