Author: Barry Roseman

Quote of the Day, March 31, 2017

“The day that this country ceases to be free for irreligion, it will cease to be free for religion — except for the sect that can win political power.”
—  Justice Robert H. Jackson, Zorach v. Clauson, 343 U.S. 306, 232 (1952)

Judge Gorsuch and Religious Bigotry

What would a Justice Neil Gorsuch do?  We need not look far to answer that question.

Today, the Supreme Court decided, for the ninth time since all the briefs were filed, to postpone a decision on whether to take up the case of Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n.  That case has been a flashpoint in Colorado, and could be one nationally, on the “right” of businesses to use religion as the reason for discriminating against members of the LGBT community.  It could legitimate discrimination against women, people of color and members of religious groups.  And a Gorsuch vote could make that happen.

As the Colorado Court of Appeals noted, this case arose from the decision of a bakery in a Denver suburb not to decorate or sell a wedding cake for a same-sex wedding ceremony.  The owners of that bakery justified their decision on religious grounds.  That court decided that the Colorado Anti-Discrimination Act (“CADA”) “is a neutral law of general applicability, and does not offend the Free Exercise Clause of the First Amendment.”  The bakery, that court concluded, ” remains free to continue espousing its religious beliefs, including its opposition to same-sex marriage. However, if it wishes to operate as a public accommodation and conduct business within the State of Colorado, CADA prohibits it from picking and choosing customers based on their sexual orientation.”

This is not a new legal principle.  Fifty-one years ago, a federal district judge rejected the assertion by restaurants in South Carolina that requiring them to serve African-American customers violated their First Amendment right to free exercise of their owner’s religious beliefs.  It rejected the owner’s argument “that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.” Newman v. Piggie Park Enters., Inc., 256 F. Supp. 941, 945 (D.S.C. 1966), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968).

Judge Gorsuch, in contrast, has expressed an expansive view of First Amendment religious rights.  He stated, in his concurring opinion in Hobby Lobby Stores, Inc. v. Sibelius, 723 F.3d 1114 (10th Cir. 2013), aff’d, 134 S.Ct. 2751 (2014), that the Affordable Care Act’s requirement that company-provided health insurance coverage contraception “infringes the [company’s owners’] religious liberties by requiring them to lend what their religion teaches to be an impermissible degree of assistance to the commission of what their religion teaches to be a moral wrong.”  He ignored the fact that the statute he was interpreting, the Religious Freedom Restoration Act (“RFRA”), applies only to government conduct that imposes a “substantial burden” on people’s religious expression.  He ignored the fact that Hobby Lobby was being required only to include contraceptive coverage in a plan that it paid for, the interests of the women who were seeking insurance coverage for contraception, and the fact that none of the contraceptive methods to which it objected would  prevent implantation of a fertilized human egg.

In a later case, Little Sisters of the Poor Home for the Aged v. Burwell, 799 F.3d 1315 (10th Cir. Colo. 2015), vacated sub nom. Zubik v. Burwell, 136 S. Ct. 1557 (U.S. 2016), he voted to have the entire court decide whether a system, which allowed a religious employer that objected on religious grounds to paying for contraceptive coverage by submitting a form to the insurer or to the federal government, violated their rights under RFRA.  Again, none of this would have imposed a substantial burden on the objectors’ religious beliefs.  All they would have had to do is to fill out a form.

Two other cases show how far Judge Gorsuch is willing to go.  In Green v. Haskell County Bd. of Comm’rs, 574 F.3d 1235 (10th Cir. 2009), he voted to have the full court consider whether a county government violated the Establishment Clause of the First Amendment by installing on the courthouse lawn a monument with a summary of one version of the Ten Commandments on one side and the Mayflower Compact on the other.  He ignored the fact that the language on that monument was not the Jewish version of the Ten Commandments, and the specifically religious content and context of the Mayflower Compact.  Instead, he viewed the Ten Commandments as a secular document, which incidentally trivializes the obviously religious character of the Commandments.

And he also sought full-court review of a decision that held that government-paid highway memorials, in the form of twelve-foot high crosses, for fallen state troopers had “the impermissible effect of conveying to the reasonable observer the message that the State prefers or otherwise endorses a certain religion.”  Am. Atheists, Inc. v. Duncan, 637 F.3d 1095 (10th Cir. 2010).  That’s right, he believed that the display of crosses, paid for by the state government, did not endorse Christianity.

Judge Gorsuch does not understand or does not care about the rights of members of religious minorities — such as Jews, Muslims, Hindus and Buddhists — and of atheists not to have their government promote the view of a particular religion or set of religions.  He is not willing to consider the concerns of some — such as the female employees of Hobby Lobby — who would not be able to exercise their right to insurance coverage for contraception because of the religious beliefs of their employers or of their employers’ owners.

If he is confirmed, Judge Gorsuch likely would vote to allow employers and other businesses to use religion as the reason for blatant discrimination against others.  Any such precedent would be difficult to confine to discrimination because of sexual orientation.  Companies could refuse to hire women, or members of other religions, or members of other races, on religious grounds.  Or people could use religion as an excuse not to pay taxes, or not to obey noise or zoning ordinances, or to practice plural marriage, or many other things that would be illegal for anyone else.

This is deeply alarming.  It is one more reason why the Senate should not confirm Judge Gorsuch.

Judge Gorsuch’s Unreasonable Definition of “Reasonable”

In a 2014 opinion, Judge Gorsuch concluded that a leave of absence of more than six months was not a “reasonable accommodation” for an employee’s disability.  Hwang v. Kan. State Univ., 753 F.3d 1159 (10th Cir. 2014).  He therefore ruled that the plaintiff in that case had failed to establish that her employer, a state university, had violated her rights under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.

That opinion ignored the central purposes of the Rehabilitation Act and of the Americans with Disabilities Act (“ADA”).  Congress instructed the courts to use the standards adopted under Title I of the ADA — the employment provisions of that statute — in deciding cases under § 504 of the Rehabilitation Act.  29 U.S.C. § 794(d).

The ADA and § 504 prohibit employers from not making reasonable accommodations to the known physical or mental limitations of an employee or applicant who is otherwise qualified for his or her job.  29 U.S.C. § 12112(b)(5).  An employer can avoid liability by demonstrating that the accommodation would impose an undue hardship on the operation of the employer’s business.

Congress made a number of legislative findings when it enacted the ADA.  It found, among other things, that “discrimination against individuals with disabilities continue[s] to be a serious and pervasive social problem”; that people with disabilities “occupy an inferior status in our society” and “are severely disadvantaged,” including economically; and that this discrimination “costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.”  Section 504 of the Rehabilitation Act and Title I of the ADA were enacted to combat that discrimination and to try to prevent disabled persons from being trapped in an endless cycle of poverty.

Prof. Hwang needed to take time off work in order to get treatment for the leukemia.  She was able to get six months’ paid leave, some of which was “shared leave” — leave time that other university employees donated to her.  She asked for additional leave for the spring semester, promising to return in time for the summer term.  But she had not been idle even when receiving chemotherapy.  As the district court — the trial court — explained, two substitute teachers covered her classes while she was receiving treatment; she “prepared the substitutes and shared her teaching materials, lesson plans, and syllibi” with them; and she “consulted with the substitutes through phone calls and e-mails while she was hospitalized.”

The university refused to extend her leave, based on a regulation that limited her leave time to six months.  That led to the termination of her employment and to her lawsuit.

In an earlier disability discrimination case, Rascon v. U.S. West Communications, Inc., 143 F.3d 1324 (10th Cir. 1998), Judge Gorsuch’s court held or at least implied that a one-year leave of absence could be a reasonable accommodation.  Judge Gorsuch cited, but did not follow, that decision.  Instead, he concluded that anything more than a six-month leave of absence would not be a reasonable accommodation for Prof. Hwang or to any other employee.  He claimed that the Rehabilitation Act “seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.”

The cases interpreting these statutes have made it clear that an employee is not entitled to the accommodation of his or her choice, if more than one accommodation is possible.  Employers are not required to create new jobs for disabled employees, and need not offer indefinite leaves of absence.  However, whether a particular accommodation is reasonable, and whether that accommodation would impose an undue hardship on the employer, are highly fact-specific inquiries.  Where the facts are in dispute, as they were in this case, the court can and should not decide these questions based only on the documents submitted by the parties, as was done here on a pretrial motion.  Instead, those matters can and should be decided by the jury at trial.

Judge Gorsuch told the Senate Judiciary Committee that judges should not be secret legislators.  Yet that is exactly what he did in this case.  His six-month limit on employer-granted leaves does not appear in either of these statutes.  It contravenes the clear Congressional intent that these statutes be interpreted in a way that would eliminate discrimination and make it possible for disabled persons to be productive members of society.  He chose, instead, to affirm a decision to fire a cancer survivor solely because her doctor recommended that she not return to work within six months.

There is more to this story.  For example, Judge Gorsuch twisted the words of an EEOC compliance document in a way that misrepresented its meaning.  But we need not go there.  He interpreted a statute, which requires an individualized assessment of the demand of a disabled person’s job and of the ability of that person to perform that job, to impose a blanket rule that prevented an employee from being able to continue performing her job.  That is deeply troubling and should be disqualifying for the most important court of law in the United States.

Judge Gorsuch and the (Almost) Frozen Trucker

In his opening statement last Monday to the Senate Judiciary Committee, Judge Neil Gorsuch disavowed any intent to legislate from the bench.  Yet in one of his decisions, the focus of much attention, that is exactly what he did.

The case, TransAm Trucking, Inc. v. Admin. Review Bd., 2016 U.S. LEXIS 13071 (10th Cir. July 15, 2016), involved Alphonse Maddin, the driver of a tractor-trailer on I-88 in Illinois late at night in January.  This case arose under the Surface Transportation Assistance Act (“STAA”), a law passed by Congress in 1994.  The STAA is intended to protect commercial truck and bus drivers from retaliation because they have raised safety concerns or have refused to operate a vehicle in conditions they believe to be unsafe.

That statute prohibits any person from discharging an employee, among other reasons, because “the employee refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.”  49 U.S.C.§ 31105(a)(1)(B)(ii).  An employee who claims that an employer has violated the STAA can file an administrative complaint.  That case is heard by an administrative judge (“AJ”).  The losing party can appeal that decision to the Administrative Review Board (“ARB”) of the U.S. Department of Labor.  An appeal from that decision is heard by a court of appeals, in this case, the court on which Judge Gorsuch sits.

This should have been an easy case.  The AJ, the ARB and a majority of the Tenth Circuit concluded that the employer, TransAm, violated the STAA when it fired Mr. Maddin.  He had pulled off I-88 late that night because he was low on gas.  When he tried to start his tractor again, he discovered that the brakes on the trailer had frozen because of the extreme cold.  He called his dispatcher.  He was told to remain with the tractor-trailer until a repair vehicle arrived.  He was told that would take about one hour.

Three hours later, he awoke in the cab of the tractor.  No repair person had arrived.  The heater in the cab of the tractor was not working.  Mr. Maddin could not feel his feet.  His speech was slurred and he was having trouble breathing because of the extreme cold.

He called again to his dispatcher.  He was told to wait until help arrived.

Thirty minutes later, no one had arrived.  Mr. Maddin called his supervisor and described his symptoms.  His supervisor told him either to drag the trailer down the highway, despite its frozen brakes, or to wait with the trailer until a repairperson met him.

Mr. Maddin felt that both of those alternatives would have created an unsafe situation for himself and for others.  Instead, he locked the trailer, unhitched the tractor and drove it away.  When he returned, about 15 minutes later, a repairperson was there.  That person repaired the brakes on the trailer, and Mr. Maddin was able to drive away with it.

One week later, TransAm fired him for violating company policy by abandoning his load while under dispatch.  He filed a complaint, claiming a violation of the STAA.  That led to the Tenth Circuit’s decision, from which Judge Gorsuch dissented.

Judge Gorsuch stated that TransAm had not violated the STAA, because Mr. Maddin, in his view, had not refused to “operate” a “vehicle” because of his good-faith safety concerns about that “vehicle.”  The STAA does not define the term “operate.”  But it does define “commercial motor vehicle” to mean “a self-propelled or towed vehicle used on the highways in commerce principally to transport passengers or cargo” where the vehicle, among other things, weighs at least five tons.  The specific provision at issue in this statute uses the word “vehicle,” not “commercial motor vehicle” or “motor vehicle.”  It is reasonable to assume that Congress meant the word “vehicle” to include, but not to be limited to, a “motor vehicle.”

Judge Gorsuch claimed that TransAm fired Mr. Maddin not because he refused to operate a vehicle due to his safety concerns, but instead because he refused to exercise his statutory “right” to not operate the tractor-trailer until help arrived.  That claim ignores the fact that Mr. Maddin was worried that, if he were to stay with the tractor-trailer, he could freeze to death.  The real issue is whether he refused to operate not just the tractor, but also the trailer, because of those safety concerns; and whether that refusal was protected by the STAA.

In essence, Judge Gorsuch treated the tractor-trailer as if they were two separate vehicles.  Clearly, Mr. Maddin was able to operate the tractor safely.  However, the tractor could not pull the trailer safely.  Mr. Maddin unhitched the locked trailer and drove off in the tractor.  And TransAm fired him for doing that.

TransAm clearly felt that Mr. Maddin had violated its rules by not operating or remaining with the trailer.  It treated the tractor and trailer as being one vehicle, or the trailer as a vehicle that its driver had no right to leave by the side of the road.  In other words, it fired him for refusing to operate the trailer.  That refusal was protected by the STAA because the driver’s and the public’s safety were at risk.

This seems obvious to ordinary human beings.  The fact that it was not obvious to Judge Gorsuch is deeply troubling.  Among other things, it raises serious questions about his claimed refusal to legislate.

His dissent adopted a disdain about the safety of drivers and the public that the STAA was enacted to protect.  The statute was passed to protect drivers and the public from companies’ insistence that their drivers choose between their jobs and being able to operate their vehicles safely.  Although his dissent is couched in terms of legislative intent, Judge Gorsuch adopted an interpretation that would have gutted much of that statute.  His claim that he has not attempted to legislate from the bench betrays either his failure to recognize what he did in this case or an attempt at outright deception about his methods.

The Senate has a legitimate right to be concerned when a federal judge ignores the clear intent of a federal statute.  The senators who are complaining about this dissent are Democrats.  In another situation, it could be Republicans who would complain.  Both would be right.  Federal judges must not legislate, and they must be honest about their methods.  This dissent, together with Judge Gorsuch’s other actions and decisions, demonstrates why the Senate should not confirm him to a lifetime seat on the Supreme Court.

Quote of the Day, March 27, 2017

“When I put on the robe, I am also reminded that under our Constitution, it is for this body, the people’s representatives, to make new laws.  For the executive to ensure those laws are faithfully enforced.  And for neutral and independent judges to apply the law in the people’s disputes.  If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk.”
— Neil Gorsuch, opening statement to Senate Judiciary Committee, March 20, 2017

The Republican Death Panels (Part 2)

A couple of days ago, I published a blog post that, among other things, accused Republicans who voted for TrumpCare, a/k/a the “American Health Care Act,” of being murderers.  That analysis was based on the Congressional Budget Office’s (“CBO’s”) score, which predicted that 24 million Americans would lose their health care coverage by 2026 under that bill.  And even the CBO’s projected future reduction in insurance premiums, we now learn, will result from policies for older Americans becoming so expensive, with so little in the way of subsidies, that many of them will become uninsured.  The remaining policies will cover a disproportionate number of younger people, at lower cost but with an enhanced level of human misery.

On further reflection, the word “murder” was probably too harsh.  Not because the bill actually would increase the level of health insurance coverage.  No, the CBO undoubtedly has it right that a bill that, if enacted, would reduce the subsidies now available for lower-income persons in the individual health-care market and that would slash funding for Medicaid will, inevitably, reduce the level of coverage.  The only question is how many people would no lose access to health care, outside of emergency room visits that hospitals are required to subsidize.

The problem is with intentionality.  I have little doubt that many Republicans sincerely believe that their plan will lower insurance premiums, reduce the amount of co-pays and deductibles, and provide more flexible health-care coverage.  As I pointed out in my earlier post, a person does not have to intend to kill another person in order to get convicted of first-degree murder in Colorado.  Creating a risk of death, without caring whether anyone in the zone of danger lives, is sufficient.

James Holmes didn’t know the names of his victims when he opened fire in a crowded movie theater in Aurora, Colorado.  But he knew he was creating a risk of death, he didn’t care whether anyone in his line of fire survived, and twelve people died.  That was more than enough to convict him of murder.

Now, many Republicans believe that their plan will do better than the CBO projected.  And they are counting on regulatory changes, which have neither been announced nor implemented, and future legislative changes, also neither announced nor implemented, to mitigate the impacts that the CBO projected.  But that is wishful thinking.  It is not reality.

So I will give the benefit of the doubt to those Republicans who want to replace the Affordable Care Act with another program.  Let us agree, for now, that the persons who support the “American Health Care Act” are sincere and do not want to cause harm to any other human being.  Let us agree that the Republicans who want to repeal and replace Obamacare are not murderers.

Does that change my advice to Republicans?  No, not at all.  And here’s why.

Even if you convince a majority of the American people that your current bill will not harm anyone, even if you get it enacted by Congress and signed into law, that will not solve your problems.  You will face one other problem, more serious than anything else.


You’ve been warned that your bill will cause tens of millions of Americans to lose health-care coverage.  You are gambling your political futures and the lives of your constituents on your belief that your plan will cause no harm.  If you are wrong, the voters will know exactly whom they should blame.  And that will be you.  The political bloodbath will be personal and devastating.

You will not be able to escape reality.  Organizations that study the levels of health-insurance coverage will keep track of how many people will be losing their coverage.  You will not be able to credibly attack those nonpartisan groups as being partisan.  More seriously, people will vote based on their own experiences and the experiences of their family members, friends and neighbors.

So my unsolicited advice is to tank your current plan and start from scratch.  Hold hearings on the problems of the Affordable Care Act.  Work with Democrats to improve that program.  Do not junk it.  Make your constituents physically, mentally and financially healthier.  Embrace, don’t reject, reality.

And if you don’t, please do not be surprised when you’re swept from office.  You’ve been warned.  Are you smart enough to listen?

Quote of the Day, March 15, 2017

Scott Pelley: “How do you fix it?”
Donald Trump: “There’s many different ways, by the way. Everybody’s got to be covered. This is an un-Republican thing for me to say because a lot of times they say, ‘No, no, the lower 25 percent that can’t afford private.’ But–”
Scott Pelley: “Universal health care?”
Donald Trump: “I am going to take care of everybody. I don’t care if it costs me votes or not. Everybody’s going to be taken care of much better than they’re taken care of now.”
— Donald J. Trump, interview on 60 Minutes, Sept. 27, 2016

The Republican Death Panels

Last week, Republicans in the U.S. House of Representatives pushed their “American Health Care Act” — their promised replacement for the Affordable Care Act (“ACA”), a/k/a “Obamacare” — through two House committees in marathon meetings.  They did so even though the text of the bill was keep secret until two days before those committee hearings, and even though the Congressional Budget Office (“CBO”) had not issued its estimate, or “score,” of the probable impact on that bill on the federal budget and on the number of persons in the U.S. who have health insurance.

Now we know the CBO’s scoring.  It issued an estimate today that the Republican bill will cause 24 million people to lose their health insurance coverage.  Specifically, the CBO estimated that by next year, 14 million people will lose their coverage, compared with levels under “Obamacare,” and that number will grow to 24 billion by 2026 as a result of cuts to Medicaid that are supposed to take effect beginning in 2020.

What will be the impact of that 24 million person increase in the ranks of the uninsured on death rates in the U.S.?  The CBO report is silent on that subject.  However, we can calculate the probable change in the death rate by extrapolating from a 2009 study, conducted by Harvard Medical School and the Cambridge Health Alliance, that was published in the American Journal of Public Health.

That study estimated that, at a time when there were about 50 million people in the United States without health insurance:

  • The mortality rate for the uninsured was 40% higher than the mortality rate for people who had health insurance; and
  • About 45,000 people per year died as a result of their lack of health insurance.

With 24 million people losing health insurance as a result of this new law, should it be passed, that translates to about 21,600 additional deaths per year.  That means that, on average, one person would die every 24 minutes as a result of this bill.  That does not include the people who would have to file for bankruptcy because they had incurred medical bills that, now, are covered by the ACA.

This could be an optimistic estimate.  Conservative Republicans in the House are reportedly insisting on introducing cuts to Medicaid in 2018, as opposed to the plans in the current bill to make them effective in 2020.  Any changes to this bill that would make health care even less affordable would increase the uninsurance rates even higher and would increase the death rates above these estimates.

There is a simple word to describe what the Republicans are proposing to do.  That word is “murder.”  The Republican Party is proposing to murder some 21,600 people each year, year in and year out, by making health insurance unaffordable for tens of millions of people.

My use of that word is not hyperbole.  The Colorado statute setting forth the elements of murder in the first degree provides that a person is guilty of that crime if he or she:

Under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another.

C.R.S. § 18-3-102(1)(d) (2016).

Any person, and in particular any politician elected to public office, who knowingly passes a law that a bipartisan office of the United States Congress reports will lead to 24 million people losing their health insurance, at a predictable cost of hundreds of thousands of lives within just the first ten years, has displayed “an attitude of universal malice manifesting extreme indifference to the value of human life generally.”  That legislative act would create “a grave risk of death to a person, or persons,” other than to the legislator, and would “cause[ ] the death of another.”  Any Republican legislator who objects to this analysis should be required to explain why he or she is moving forward with a bill that will cause this level of death, disease, bankruptcy and personal despair.

And if any Republican believes that this term is still too harsh, that person should admit that the “American Health Care Act” will cause hundreds of thousands of people to die prematurely.  Sarah Palin and some Republicans in Congress made the memorable and wildly inaccurate claim that the ACA would lead to, if not require, the establishment of “death panels” for Americans.  Those who falsely proclaimed “death panels” should not be heard to complain when they are, themselves, part of the real death panels that will lead, inevitably, to massive and unnecessary levels of death.

It is not settled that this bill will become law.  As a result of public outrage and totally justified fears about the result of this effort to repeal the ACA with an extremely flawed and grossly inadequate substitute, Congressional Republicans may yet abandon to repeal and replace Obamacare.  They may yet decide to improve the law, rather than to try to replace it.  But given the Republicans’ refusal to even delay consideration of this bill until after they had received the CBO scores, that appears highly unlikely.

Quote of the Day, March 13, 2017

“I firmly believe that nobody will be worse off financially in the process that we’re going through, understanding that they’ll have choices that they can select the kind of coverage that they want for themselves and for their family, not the government forces them to buy.”
— Tom Price, Secretary of Health and Human Services, March 12, 2017