# data[].attributes.headline
 Should gun control laws be uniform for the entire country or individualized by the needs of each state? 

# data[].attributes.subject
 Should gun control laws be uniform for the entire country or individualized by the needs of each state? 

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Should physician assisted suicide be banned by the federal government or left up to each individual state to decide?

# data[].attributes.subject
Should physician assisted suicide be banned by the federal government or left up to each individual state to decide?

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https://gun-control.procon.org/view.resource.php?resourceID=006436

http://digitalcommons.library.umaine.edu/cgi/viewcontent.cgi?article=1256&context=mpr

http://www.huffingtonpost.com/2013/01/25/firearms-freedom-act_n_2552385.html

https://www.govloop.com/community/blog/guns-government-the-anti-federalist-solution/

http://www.nationalreview.com/corner/337637/states-and-gun-control-fight-mario-loyola

http://www.yalelawjournal.org/forum/why-firearm-federalism-beats-firearm-localism

https://www.nraila.org/articles/20170920/reuniting-the-united-states-with-reciprocity

https://go.gale.com/ps/i.do?p=OVIC&u=alex95762&id=GALE|EJ3010788205&v=2.1&it=r&asid=a7d5ae51

http://www.governing.com/gov-data/safety-justice/gun-show-firearms-bankground-checks-state-laws-map.html

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Jan. 17, 2013&#151; -- No sooner had President Barack Obama laid out his gun control proposals Wednesday, than some states responded, saying they would move to block the laws' enforcement. Some state legislators were even working feverishly to block the measures before the president proposed them.
Mississippi
After the president's announcement, Mississippi Gov. Phil Bryant joined House Speaker Phil Gunn at a press conference at the State Capitol in Jackson to denounce the president's gun control measures and call on the legislature to make it illegal to enforce any of the new federal gun control measures.

"We are here to assure Mississippians that we are going to continue to fight for their Second Amendment rights to bear arms," Gunn said. "These are dangerous times, and people have a constitutional right to protect themselves and their property."

Bryant also tweeted out a letter he wrote to Gunn and Lt. Gov. Tate Reeves, saying that the president's Executive Order "infringes our constitutional right to keep and bear arms as never before in American history.

"I am asking that you immediately pass legislation that would make any unconstitutional order by the President illegal to enforce in Mississippi by state or local law enforcement," Bryant wrote in the letter, adding that other states have "introduced similar measures and I believe we will be successful in preventing this overreaching and anti-constitutional violation of our rights as American citizens."
Texas
On Monday, Texas State Rep. Steve Toth, who represents an area near Houston, announced he would file legislation "assisting the protection of the Second Amendment."

Named the "Firearms Protection Act," the bill would make "any federal law banning semi-automatic firearms or limiting the size of gun magazines unenforceable within the state's boundaries" and most notably "anyone trying to enforce a federal gun ban could face felony charges under the proposal."

"We can no longer depend on the Federal Government and this Administration to uphold a Constitution that they no longer believe in," Toth said in a release. "The liberties of the People of Texas and the sovereignty of our State are too important to just let the Federal Government take them away."
Missouri
On Wednesday in Missouri, State Sen. Brian Munzlinger, who represents Williamstown, filed legislation he says will seek "to keep far-reaching regulations from violating the constitutional rights of all Missourians."

"Today's extreme grab of power was created under executive order and not heard publicly," Munzlinger said in a statement. "We cannot let the total disregard of our constitutional rights continue."

His proposal would make the president's Executive Order or any federal law banning semi-automatic weapons not already on the books "unenforceable" and the bill notably, like in Texas, would "make it a crime for any officer, government agent, or employee from enforcing a law or order declared unenforceable," effectively making it a crime for the feds to enforce the bill in the state.

Another Missouri state legislator, Rep. Casey Guernsey, introduced a similar bill that "specifies that it is unlawful for any officer or employee of the state or any political subdivision, or any licensed federal firearms dealer to enforce, or attempt to enforce, any federal law relating to a personal firearm, firearm accessory, or ammunition that is owned or manufactured in this state and remains exclusively within the boundaries of the state," according to Guernsey's legislative aide Ryan Clearwater.
Tennessee
Lawmakers in Tennessee laid out similar legislation. State Rep. Jeremy Faison and Sen. Frank Nicely proposed a bill that would make it illegal for any "public funds" of the state to be "allocated to the "implementation, regulation or enforcement of any federal law, executive order, rule or regulation" that is passed and "adversely affects a United States citizen's ability to lawfully possess or carry firearms in this state."

Faison also put out a statement saying while he "appreciates" some of the president's plans like "additional school resource officers, training for schools, churches, and higher education," as well as "being tougher on gun crimes," he disagrees with aspects of the proposal such as the "vague" term "military assault weapons" and private sales needing background checks.

"10 years of an assault weapons ban did nothing to stop shooting crimes. How will it work now?" Faison asked in a statement.
Wyoming
In Wyoming, state Rep. Kendell Kroeker was joined by several other state legislators in proposing a bill that reads "any federal law which attempts to ban a semi-automatic firearm or to limit the size of a magazine of a firearm or other limitation on firearms in this state shall be unenforceable in Wyoming."

Like other states, the bill would make it a felony for a federal employee to enforce federal legislation on a firearm or ammunition "owned or manufactured commercially or privately in Wyoming" that remains in the state.
Oregon
And it's not just state legislators. A sheriff in Oregon, Tim Mueller of Linn County, wrote a letter to Vice President Joe Biden on Monday which he posted on his Facebook page, telling Biden, "We must not allow, nor shall we tolerate, the actions of criminals no matter how heinous the crimes to prompt politicians to enact laws that will infringe upon the liberties of responsible citizens who have broken no laws."

"Any federal regulation enacted by Congress or by executive order of the President offending the constitutional rights of my citizens shall not be enforced by me or my deputies, nor will I permit the enforcement of any constitutional regulations or orders by federal officers within the borders of Linn County Oregon," Mueller wrote in the letter.
Kentucky
Another sheriff in Kentucky, Denny Peyman of Jackson County, told The Lexington Herald-Leader that he too would not enforce any laws he considers unconstitutional, saying he has "a team of attorneys to step up with me if necessary to be sure the Second Amendment is upheld," adding that he considers it "a moral obligation."

Even before the Dec. 14 Sandy Hook school shooting that left 20 first graders and six educators dead, eight states had adopted similar laws that would exempt guns made in those states from federal regulations as long as the firearms remain in those states.

ABC News' Whitney Lloyd contributed to this report.

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Several State Legislators Say No to Federal Gun Control Laws

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No sooner had President Barack Obama laid out his gun control proposals Wednesday, than some states responded, saying they would move to block the laws' enforcement. Some state legislators were even working feverishly to block the measures before the president proposed them.

# data[].attributes.headline
Do sanctuary cities violate federal immigration laws?

# data[].attributes.subject
Do sanctuary cities violate federal immigration laws?

# data[].attributes.headline
Should states be allowed to circumvent federal laws on same sex marriage (2015 supreme court decision) due to religious objections? 

# data[].attributes.subject
Should states be allowed to circumvent federal laws on same sex marriage (2015 supreme court decision) due to religious objections? 

# data[].attributes.headline
Should states or the federal government have control over extending a moratorium on evictions during a pandemic?

# data[].attributes.subject
Should states or the federal government have control over extending a moratorium on evictions during a pandemic?

# data[].attributes.headline
Should the federal government create one uniform death penalty law for the entire nation? (Is it right to commit a crime in one state and get the death penalty but not another?)

# data[].attributes.subject
Should the federal government create one uniform death penalty law for the entire nation? (Is it right to commit a crime in one state and get the death penalty but not another?)

# data[].attributes.headline
Should states or the federal government be allowed to order COVID mandates?

# data[].attributes.subject
Should states or the federal government be allowed to order COVID mandates?

# data[].attributes.headline
Does federally mandated standardized testing violate the rights of state governments?

# data[].attributes.subject
Does federally mandated standardized testing violate the rights of state governments?

# data[].attributes.body
http://www.huffingtonpost.com/2011/08/16/no-child-left-behind-reauthorization-federalism_n_927718.html

https://www.usnews.com/news/articles/2015/12/09/congress-replaces-no-child-left-behind-shifts-power-to-states

https://standardizedtests.procon.org/

http://www.edweek.org/ew/articles/2016/01/06/under-essa-states-districts-to-share-more.html
http://educationnext.org/a-new-new-federalism/

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https://www.usatoday.com/story/opinion/2015/10/20/our-view-physician-assisted-suicide-california-oregon-editorials-debates/74282866/

http://www.euthanasia.com/bystate.html

http://thefederalist.com/2016/11/29/fight-assisted-suicide-courts-stop-arguing-federalism/

http://www.patientsrightscouncil.org/site/wp-content/uploads/2017/09/Comparison_of_State_Laws_09-1417.pdf

http://healthcare.findlaw.com/patient-rights/is-there-a-constitutional-right-to-physician-assisted-suicide.html

http://www.nejm.org/doi/full/10.1056/NEJMlim060731

https://righttodie.uslegal.com/physician-assisted-suicide/supreme-court-rulings/

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March 24, 2015 About an hour read Download Report

Senior Research Fellow in American Principles and Public Policy

Ryan T. Anderson, Ph.D., researches and writes about marriage, bioethics, religious liberty and political philosophy.

Summary

Allowing physician-assisted suicide would be a grave mistake for four reasons. First, it would endanger the weak and vulnerable. Second, it would corrupt the practice of medicine and the doctor-patient relationship. Third, it would compromise the family and intergenerational commitments. And fourth, it would betray human dignity and equality before the law. Instead of helping people to kill themselves, we should offer them appropriate medical care and human presence. We should respond to suffering with true compassion and solidarity. Doctors should help their patients to die a dignified death of natural causes, not assist in killing. Physicians are always to care, never to kill.

Key Takeaways

The Hippocratic Oath proclaims: "I will keep [the sick] from harm and injustice. I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect."[1] This is an essential precept for a flourishing civil society. No one, especially a doctor, should be permitted to kill intentionally, or assist in killing intentionally, an innocent neighbor.

Human life need not be extended by every medical means possible, but a person should never be intentionally killed. Doctors may help their patients to die a dignified death from natural causes, but they should not kill their patients or help them to kill themselves. This is the reality that such euphemisms as "death with dignity" and "aid in dying" seek to conceal.

In 2015, at least 18 state legislatures and the District of Columbia are considering whether to allow physician-assisted suicide (PAS).[2] Legalizing physician-assisted suicide, however, would be a grave mistake because it would:

Endanger the weak and vulnerable,

Corrupt the practice of medicine and the doctor-patient relationship,

Compromise the family and intergenerational commitments, and

Betray human dignity and equality before the law.

First, PAS endangers the weak and marginalized in society. Where it has been allowed, safeguards purporting to minimize this risk have proved to be inadequate and have often been watered down or eliminated over time. People who deserve society's assistance are instead offered accelerated death.

Second, PAS changes the culture in which medicine is practiced. It corrupts the profession of medicine by permitting the tools of healing to be used as techniques for killing. By the same token, PAS threatens to fundamentally distort the doctor-patient relationship because it reduces patients' trust of doctors and doctors' undivided commitment to the life and health of their patients. Moreover, the option of PAS would provide perverse incentives for insurance providers and the public and private financing of health care. Physician-assisted suicide offers a cheap, quick fix in a world of increasingly scarce health care resources.

Third, PAS would harm our entire culture, especially our family and intergenerational obligations. The temptation to view elderly or disabled family members as burdens will increase, as will the temptation for those family members to internalize this attitude and view themselves as burdens. Physician-assisted suicide undermines social solidarity and true compassion.

Fourth, PAS's most profound injustice is that it violates human dignity and denies equality before the law. Every human being has intrinsic dignity and immeasurable worth. For our legal system to be coherent and just, the law must respect this dignity in everyone. It does so by taking all reasonable steps to prevent the innocent, of any age or condition, from being devalued and killed. Classifying a subgroup of people as legally eligible to be killed violates our nation's commitment to equality before the law-showing profound disrespect for and callousness to those who will be judged to have lives no longer "worth living," not least the frail elderly, the demented, and the disabled. No natural right to PAS exists, and arguments for such a right are incoherent: A legal system that allows assisted suicide abandons the natural right to life of all its citizens.

Instead of embracing PAS, we should respond to suffering with true compassion and solidarity. People seeking PAS typically suffer from depression or other mental illnesses, as well as simply from loneliness. Instead of helping them to kill themselves, we should offer them appropriate medical care and human presence. For those in physical pain, pain management and other palliative medicine can manage their symptoms effectively. For those for whom death is imminent, hospice care and fellowship can accompany them in their last days. Anything less falls short of what human dignity requires. The real challenge facing society is to make quality end-of-life care available to all.

Doctors should help their patients to die a dignified death of natural causes, not assist in killing. Physicians are always to care, never to kill. They properly seek to alleviate suffering, and it is reasonable to withhold or withdraw medical interventions that are not worthwhile. However, to judge that a patient's life is not worthwhile and deliberately hasten his or her end is another thing altogether.

Citizens and policymakers need to resist the push by pressure groups, academic elites, and the media to sanction PAS. Recent experience with PAS both in the United States and in Europe suggests how problematic it is.

Endangering the Weak and Marginalized

To understand how PAS endangers the weak and marginalized, one must understand what PAS entails and where it leads. With PAS, a doctor prescribes the deadly drug, but the patient self-administers it. While most activists in the United States publicly call only for PAS, they have historically advocated not only PAS, but also euthanasia: the intentional killing of the patient by a doctor.

This is not surprising: The arguments for PAS are equally arguments for euthanasia. Neil Gorsuch, currently a federal judge, points out that some contemporary activists fault the movement for not being honest about where its arguments lead. He notes that legal theorist and New York University School of Law Professor Richard Epstein "has charged his fellow assisted suicide advocates who fail to endorse the legalization of euthanasia openly and explicitly with a 'certain lack of courage.'"[3]

The logic of assisted suicide leads to euthanasia because if "compassion" demands that some patients be helped to kill themselves, it makes little sense to claim that only those who are capable of self-administering the deadly drugs be given this option. Should not those who are too disabled to kill themselves have their suffering ended by a lethal injection?

And what of those who are too disabled to request that their suffering be ended, such as infants or the demented? Why should they be denied the "benefit" of a hastened death? Does not "compassion" provide an even more compelling reason for a doctor to provide this release from suffering and indignity?[4] As Professor John Keown points out:

If compassion justified us in giving a lethal prescription to a terminally ill patient on request to end their suffering, it would equally justify us in giving them a lethal injection, particularly if they were physically unable to commit suicide. It would also justify us in giving a lethal injection to a terminally ill patient who was incapable of making a request.[5]

Judge Gorsuch notes that for the Dutch, "it is the physician's assessment of the patient's quality of life as 'degrading' or 'deteriorating' or 'hopeless' that stands as the ultimate justification for killing."[6]

Although the Supreme Court of the United States has ruled in two unanimous decisions that there is no constitutional right to PAS, three states permit it by statute: Oregon, Washington, and Vermont.[7] Physician-assisted suicide and euthanasia are allowed in three European countries-the Netherlands, Belgium, and Luxembourg-and Switzerland allows assisted suicide.[8]

The evidence from these jurisdictions, particularly the Netherlands, which has over 30 years of experience, suggests that safeguards to ensure effective control have proved inadequate. In the Netherlands, several official, government-sponsored surveys have disclosed both that in thousands of cases, doctors have intentionally administered lethal injections to patients without a request and that in thousands of cases, they have failed to report cases to the authorities.[9]

Physician-Assisted Suicide Will Most Threaten the Weak and Marginalized.Physician-assisted suicide will most threaten the weak and marginalized because of the cultural pressures and economic incentives that will drive it.[10] The New York State Task Force on Life and the Law, established by Governor Mario Cuomo, explained in its report:

The Task Force members unanimously concluded that legalizing assisted suicide and euthanasia would pose profound risks to many patients....

... The practices will pose the greatest risks to those who are poor, elderly, members of a minority group, or without access to good medical care....

... The clinical safeguards that have been proposed to prevent abuse and errors would not be realized in many cases.[11]

Dr. Paul McHugh, University Distinguished Service Professor of Psychiatry at Johns Hopkins University School of Medicine and Psychiatrist-in-Chief at Johns Hopkins Hospital from 1975 to 2001, highlights that "with physician-assisted suicide, many people-some not terminally ill, but instead demoralized, depressed and bewildered-die before their time."[12] This sad reality led Dr. Leon Kass-a medical doctor, philosopher, and former chairman of the President's Council on Bioethics-to explain that physician-assisted suicide "is, in fact, the state's abdication of its duty to protect innocent life and its abandonment especially of the old, the weak, and the poor."[13]

The people most likely to be assisted by a physician in their suicide are suffering not simply from terminal illness, but also from depression, mental illness, loneliness, and despair. "Researchers have found hopelessness, which is strongly correlated with depression, to be the factor that most significantly predicts the wish for death," write Dr. Herbert Hendin, Professor of Psychiatry and Behavioral Science at New York Medical College and Chief Executive Officer and Medical Director of Suicide Prevention Initiatives, and Dr. Kathleen Foley, Professor of Neurology at Cornell University's medical school and attending neurologist, pain and palliative care services, at Sloan-Kettering Cancer Center.[14] As Dr. Hendin reports:

Mental illness raises the suicide risk even more than physical illness. Nearly 95 percent of those who kill themselves have been shown to have a diagnosable psychiatric illness in the months preceding suicide. The majority suffer from depression that can be treated. This is particularly true of those over fifty, who are more prone than younger victims to take their lives during the type of acute depressive episode that responds most effectively to treatment.[15]

From their decades of professional medical practice, Drs. Hendin and Foley report that when patients who ask for a physician's assistance in suicide "are treated by a physician who can hear their desperation, understand the ambivalence that most feel about their request, treat their depression, and relieve their suffering, their wish to die usually disappears."[16] They conclude: "Patients requesting suicide need psychiatric evaluation to determine whether they are seriously depressed, mentally incompetent, or for whatever reason do not meet the criteria for assisted suicide."[17]

Yet only five of the 178 Oregon patients who died under the Oregon assisted suicide laws in 2013 and 2014 were referred for any psychiatric or psychological evaluation. Remarkably, patients were referred for psychiatric evaluation in less than 5.5 percent of the 859 cases of assisted suicide reported in Oregon since its law went into effect in 1997.[18] "This constitutes medical negligence," writes Dr. Aaron Kheriaty, Associate Professor of Psychiatry at U.C. Irvine School of Medicine. Dr. Kheriaty concludes, "To abandon suicidal individuals in the midst of a crisis-under the guise of respecting their autonomy-is socially irresponsible: It undermines sound medical ethics and erodes social solidarity."[19]

Regrettably, even in jurisdictions that require a doctor to mention palliative care and hospice alternatives before proceeding with assisted suicide, the doctors need not be experts. Drs. Hendin and Foley point out:

They are not required, however, to be knowledgeable about how to relieve physical or emotional suffering in terminally ill patients. Without such knowledge, which most physicians do not have, they cannot present or make feasible alternatives available. Nor in the absence of such knowledge are they required to refer the patient to a physician with expertise in palliative care.[20]

The Legal Protections in Physician-Assisted Suicide Are Ineffective. Even if one were to accept an argument for PAS on the basis of autonomy and compassion, one would be forced to conclude that neither value is sufficiently protected in laws that have been enacted in several states and in current bills that would authorize it in additional jurisdictions. One of the greatest concerns is that autonomy will be violated and people pressured or coerced into killing themselves.

The District of Columbia's Death With Dignity Act of 2015 would authorize physicians to prescribe deadly drugs to patients.[21] This act is substantially similar to the laws passed in Oregon, Washington, and Vermont and others pending in various jurisdictions.[22] None of the purported protections offered in the bill are sufficient; the experience with PAS to date shows that all will prove ineffective. Professor Alexander Capron, a leading health lawyer, has concluded that the Oregon safeguards are "largely illusory."[23] So, too, are those in the D.C. proposal.

The D.C. bill states that to receive a physician's assistance in suicide, the patient must make two oral requests, separated by 15 days, to a physician of the patient's choice. Before the second request, the patient must also make a written request, no less than 48 hours before the lethal drugs are prescribed or provided. This written request must be witnessed by two individuals, neither of whom may be the physician and only one of whom may be related to the patient, stand to inherit upon the patient's death, or be an owner or employee of a health care facility where the patient is residing. The witnesses must attest that the patient is capable and acting voluntarily.

Likewise, the chosen physician must judge the patient to be capable and acting voluntarily and that the patient will likely die within six months. Then the physician refers the patient to a consulting physician who must verify these judgments.

Despite the purported safeguards, this system is ripe for abuse. One of the witnesses may be a family member with a financial or emotional incentive to see the patient die, and the other may simply be a friend willing to affirm that judgment. Patients or their more powerful guardians could shop around for a doctor who is willing to make the judgment that they are capable, acting freely, and likely to die within six months.

Moreover, the bill does not specify whether death need be likely with medical treatment or without. As a team of physicians has noted, "Deciding who should be counted as 'terminally ill' will pose such severe difficulties that it seems untenable as a criterion for permitting physician-assisted suicide."[24]

Of course, there is no reason to assume that all doctors will seek to make a serious diagnosis, because a patient can shop around for a compliant physician. Richard Doerflinger notes that Compassion and Choices (C&C), formerly known as the Hemlock Society and one of the advocacy groups pushing for assisted suicide laws nationwide, keeps a list of "friendly" doctors:

The doctors who declare patients qualified for assisted suicide are not randomly selected. C&C has boasted of its direct involvement in the vast majority of such cases in Oregon, as it has its own list of doctors who are willing and able to get patients around any pesky "safeguards." If the patient's own physician, or the next physician, discovers a disorder such as depression, the patient can simply shop around to find one who won't care (or just call C&C in the first place).[25]

Such shopping around for doctors claimed the life of Helen, a woman in Oregon. Judge Gorsuch recounts:

Helen was a breast cancer patient in her mid-eighties when the Oregon law went into effect. Helen's regular physician refused to assist in her suicide; a second doctor was consulted but also refused, on the stated ground that Helen was depressed. At that point, Helen's husband called Compassion in Dying. The medical director of the group spoke with Helen and later explained that Helen was "frustrated and crying because she felt powerless." Helen was not, however, bedridden or in great pain.... The Compassion in Dying employee recommended a physician to Helen. That physician, in turn, referred Helen to a specialist (whose specialty is unknown), as well as to a psychiatrist who met Helen only once. A lethal prescription was then supplied.[26]

Remarkably, the D.C. bill provides explicit protections for doctors to engage in such judgments by providing immunity from liabilities: "No person shall be subject to civil or criminal liability or professional disciplinary action for: (A) Participating in good faith compliance with this act." Doerflinger explains:

"Good faith" is the loosest of legal standards, much weaker than the negligence standard physicians are generally held to. Instead of meeting the objective standards for what doctors should know, a doctor need only say that he sincerely didn't know that he failed to live up to them.[27]

The political left is ordinarily quite opposed to tort reform or medical malpractice limitations, yet here they explicitly support them. Doerflinger concludes:

So, in a matter of literal life and death, standards are much lower than anywhere else in law or medicine. You're likely to be seen as terminal (hence a candidate for assisted suicide) if the doctor feels that you are, or thinks that you could become so without treatment. If you take the lethal drugs in a few weeks based on that prediction, there is, of course, no chance to prove him wrong.[28]

Judge Gorsuch echoes this concern:

[I]t is also rather remarkable that, while physicians in Oregon are held to a standard of professional competence in administering all other treatments they provide, the Oregon assisted suicide statute creates an entirely different regime when it comes to administering this "treatment," specifically and uniquely immunizing doctors from criminal prosecution, civil liability, or even professional discipline for any actions they take in assisting a suicide, as long as they act in "good faith." Thus, while a doctor may be found liable for mere negligence in any other operation or procedure, there is no recourse for family members when a doctor kills a patient even on the basis of gross negligence by misdiagnosing the patient as terminal or by misassessing the patient as competent.[29]

The disability-rights group Not Dead Yet agrees:

[I]t cannot be seriously maintained that assisted suicide laws can or do limit assisted suicide to people who are imminently dying, and voluntarily request and consume a lethal dose, free of inappropriate pressures from family or society. Rather, assisted suicide laws ensure legal immunity for physicians who already devalue the lives of older and disabled people and have significant economic incentives to at least agree with their suicides, if not encourage them, or worse.[30]

Moreover, there are no protections relating to the time when the lethal drugs are taken. Once the requirements are met, a doctor may prescribe the deadly drugs and send the patient home to self-administer them. The D.C. bill, like the state bills, provides no safeguards to ensure that the patient is mentally competent when he or she takes the drugs and is not being pressured to do so. The lack of any legal protections ensuring autonomy at the time the lethal choice is made led Judge Gorsuch to ask: "How does it serve the putative goal of autonomous patient decision making to set up a regime that allows people to commit suicide without considering whether they are, in fact, acting freely, competently, and autonomously at the time of suicide?"[31]

In sum, a family member or friend who might benefit financially from the death of a patient may act as a witness that the patient is voluntarily requesting the lethal prescription, and doctors who support the ideology of death and have never before met the patient (or the patient's family) can judge the patient to be "qualified" under the law. Finally, at the time of administering the deadly drug, there are no safeguards to ensure voluntariness or competence or to guard against coercion. Such a measure woefully fails to protect autonomy.[32]

The World's Experience with Physician-Assisted Suicide Laws Confirms the Lethal Logic. While many assisted suicide laws attempt to limit PAS eligibility to the terminally ill, and while many laws attempt to provide protections ensuring autonomous consent, the experience of countries with PAS and euthanasia suggests that safeguards fail to ensure effective control.

In 1989, while teaching law and medical ethics at the University of Cambridge, Professor John Keown began to investigate PAS and euthanasia in the Netherlands. He found that key Dutch guidelines, such as requiring an explicit request from the patient, have long been widely violated with virtual impunity.[33] He pointed out that the first of several official surveys conducted by the Dutch found that in 1990, "the total number of life-shortening acts and omissions where the doctor's primary intention ... was to kill, and which are therefore indubitably euthanasiast, is 10,558."[34]

Shockingly, the majority of these cases were nonvoluntary. Oxford legal scholar John Finnis, commenting on the Dutch data, remarks: "[W]ell over half ... were without any explicit request. In the United States that would be over 235,000 unrequested medically accelerated deaths per annum."[35] In 2013, 1.7 percent (1,807 patients) of all deaths in Belgium were due to euthanasia and physician-assisted suicide.[36] A 2010 study discovered that 66 of 208 identified deaths in Belgium were administered without an explicit patient request.[37]

Keown confirms that "the undisputed empirical evidence from the Netherlands and Belgium shows widespread breach of the safeguards, not least the sizeable incidence of non-voluntary euthanasia and of non-reporting."[38] In October of 2013, three judges of the High Court of Ireland voiced the same concern: "[T]he incidence of legally assisted death without explicit request in the Netherlands, Belgium and Switzerland is strikingly high."[39] And the numbers of those assisted in committed suicide keep growing.[40]

Part of the reason for these troubling statistics is that any purported legal safeguards can be and have been abused, and over time the logic of a "right to die" is extended to ever-wider groups of patients, including the incompetent. Keown describes the logic of PAS as based on judging some lives as unworthy of life:

Once a doctor is prepared to make such a judgment in the case of [a] patient capable of requesting death, the judgment can, logically, equally be made in the case of a patient incapable of requesting death.... If a doctor thinks death would benefit the patient, why should the doctor deny the patient that benefit merely because the patient is incapable of asking for it?... The logical "slippery slope" argument is unanswerable.[41]

Dr. Ezekiel Emanuel, writing in the Atlantic Monthly, affirms that this is the lesson to take from the Netherlands and that proposed American PAS laws cannot avoid the same outcome:

The Netherlands studies fail to demonstrate that permitting physician-assisted suicide and euthanasia will not lead to the nonvoluntary euthanasia of children, the demented, the mentally ill, the old, and others. Indeed, the persistence of abuse and the violation of safeguards, despite publicity and condemnation, suggest that the feared consequences of legalization are exactly its inherent consequences.[42]

In 1996, two doctors prosecuted in the Netherlands for the nonvoluntary euthanasia of disabled infants were acquitted when they argued medical necessity.[43] The Dutch courts simply followed the inexorable logic that drives the case for PAS and voluntary euthanasia to a new extent. If necessity justifies ending the life of a suffering patient who requests it, it equally justifies ending the life of a suffering patient who cannot request it. Dutch pediatricians have now devised a protocol for infanticide.[44]

A 2005 study in the New England Journal of Medicine recorded that in the previous seven years, 22 cases of infant euthanasia were reported in the Netherlands.[45] A 2013 Netherlands commission on euthanasia argued that as many as 650 infants per year should be eligible for euthanasia on the basis of the children's diagnosis as "babies who in spite of very intensive treatment are certain to die in the short term, babies with a poor prognosis and very poor expected quality of life, or babies who are not dependent on intensive treatment but who face a life of severe suffering with no prospect of improvement."[46] The U.N. Human Rights Committee formally condemned this Dutch infanticide: "The Committee is gravely concerned at reports that new-born handicapped infants have had their lives ended by medical personnel."[47]

In March 2014, Belgium became the first country to legislatively allow doctors to euthanize "consenting" minors, despite the objections of 160 physicians.[48] In an open letter, these doctors argued that legalization without age restriction was unnecessary, as palliative care is sufficient, and the bill would create excessive pressure on both children and parents to choose premature death.[49] Nevertheless, Belgium went forward and removed the age restrictions.

Diagnoses of disability are now considered sufficient grounds for death. In December 2012, Marc and Eddy Verbessem, 45-year-old deaf twins, were euthanized in a Belgian hospital after they discovered they were going blind.[50] Nancy Verhelst, a 44-year-old transsexual Belgian whose doctors made mistakes in three sex change operations, was left feeling as though she was a "monster." She then requested-and was granted-euthanasia by lethal injection.[51]

In the Netherlands, the euthanized include Ann G., a 44-year-old woman whose only ailment was chronic anorexia.[52] In the beginning of 2013, Dutch doctors administered a lethal injection to a 70-year-old blind woman because she said the loss of sight constituted "unbearable suffering."[53] In early 2015, a 47-year-old divorced mother of two suffering from tinnitus, a loud ringing in the ears, was granted physician-assisted suicide in the Netherlands.[54] She left behind a 13-year-old son and a 15-year-old daughter.[55] Gerty Casteelen was a 54-year-old psychiatric patient with molysomophobia, a fear of dirt or contamination. Her doctors decided that she would not be able to control her fear and agreed to administer a lethal injection.[56]

Corrupting the Practice of Medicine

Physician-assisted suicide threatens to:

Corrupt the culture in which medicine is practiced;

Corrupt the profession of medicine by permitting the tools of healing to be used as a technique for killing;

Fundamentally distort the doctor-patient relationship, greatly reducing patients' trust of doctors and doctors' undivided commitment to the healing of their patients; and

Create perverse incentives for insurance providers and the financing of health care.

Physician-Assisted Suicide Corrupts the Profession of Medicine. The heart of medicine is healing. Doctors cannot heal by assisting patients to kill themselves or by killing them. They rightly seek to eliminate disease and alleviate pain and suffering. They may not, however, seek to eliminate the patient. Allowing doctors to assist in killing threatens to fundamentally corrupt the defining goal of the profession of medicine.

In testimony before the U.S. House of Representatives, Dr. Kass elaborated on this point:

The legalization of physician-assisted suicide will pervert the medical profession by transforming the healer of human beings into a technical dispenser of death. For over two millennia the medical ethic, mindful that power to cure is also power to kill, has held as an inviolable rule, "Doctors must not kill."[57]

Dr. Paul McHugh agrees that this inviolable rule is essential to the practice of medicine:

Since ancient Greece physicians have been tempted to help desperate patients kill themselves, and many of those Greek doctors must have done so. But even then the best rejected such actions as unworthy and, as the Hippocratic Oath insists, contrary to the physician's purpose of "benefiting the sick."[58]

For this reason, the American Medical Association (AMA) code of ethics rejects physician-assisted suicide. The AMA states: "Physician-assisted suicide is fundamentally incompatible with the physician's role as healer."[59] As law professor O. Carter Snead notes,[60] dozens of professional associations and groups representing vulnerable persons oppose physician-assisted suicide, including the:

American Medical Association,

World Health Organization,

American Nurses Association,

American Association of Critical-Care Nurses,

Hospice Nurses Association,

Oncology Nurses Society,

American Osteopathic Association,

American Psychiatric Association,

American Academy of Hospice and Palliative Medicine,

American Academy of Pain Management,

American Academy of Pain Medicine,

American Academy of Orthopaedic Surgeons,

American Academy of Physical Medicine,

Society of Critical Care Medicine,

American Academy of Neurology,

American Neurological Association,

American Society of Anesthesiologists,

American Society of Clinical Pathologists,

College of American Pathologists,

American Society of Abdominal Surgeons,

American Association of Clinical Endocrinologists,

Society of Medical Consultants to the Armed Forces,

American Institute of Life Threatening Illness and Loss,

Massachusetts Medical Society,

Disability Rights Education and Defense Fund,

American Disabled for Attendant Programs Today,

American Association of People with Disabilities,

Association of Programs for Rural Independent Living,

Justice for All,

National Council on Disability,

National Council on Independent Living,

National Spinal Cord Injury Association,

Not Dead Yet,

TASH,

World Association of Persons with Disabilities, and

World Institute on Disability.

Practicing medicine is a not a morally neutral act of mere technical skill. Physicians do not practice medicine simply to fulfil the desires of consumer-patients, whatever those desires may be. Rather, medicine is a profession governed by its core commitment to healing patients. Dr. Kass explains that professionals profess their devotion to the purposes they serve and the ideals to which they look. Teachers are devoted to learning, lawyers to justice, clergy to things divine, and "the physician devotes himself to healing the sick, looking up to health and wholeness." Dr. Kass adds: "Healing is thus the central core of medicine: to heal, to make whole, is the doctor's primary business."[61]

Killing is incompatible with caring. Dr. Kass explains: "Can wholeness and healing ever be compatible with intentionally killing the patient? Can one benefit the patient as a whole by making him dead?... 'Better off dead' is logical nonsense." Indeed, "to bring nothingness is incompatible with serving wholeness: one cannot heal-or comfort-by making nil. The healer cannot annihilate if he is truly to heal. The boundary condition, 'No deadly drugs,' flows directly from the center, 'Make whole.'"[62]

Dr. McHugh illustrates what happens when this boundary is crossed: "Once doctors agree to assist a person's suicide, ultimately they find it difficult to reject anyone who seeks their services. The killing of patients by doctors spreads to encompass many treatable but mentally troubled individuals, as seen today in the Netherlands, Belgium and Switzerland."[63] Disability groups note that "numerous studies have demonstrated that physicians underestimate the quality of life of people with disabilities compared to our own assessments."[64]

Physician-Assisted Suicide Distorts the Doctor-Patient Relationship. Physician-assisted suicide will not only corrupt the professionals who practice medicine, but also affect the patients because it threatens to fundamentally distort the doctor-patient relationship, greatly reducing patients' trust of doctors and doctors' undivided commitment to the healing of their patients.

Our laws shape our culture, and our culture shapes our beliefs, which in turn shape our behaviors. The laws governing medical treatments will shape the way that doctors behave and thus shape the doctor-patient relationship. Legal philosopher John Finnis explains how a change in the law will lead to a change of heart on the part of doctors:

Now change the law and the professional ethic. Killing with intent becomes a routine management option. Oh yes, there are restrictions, guidelines, paperwork. Well meant. Not utterly irrelevant. But as nothing compared with our doctors' change in heart, professional formation, and conscience.[65]

On this point, Dr. Kass agrees:

Won't it be tempting to think that death is the best treatment for the little old lady "dumped" again on the emergency room by the nearby nursing home? Even the most humane and conscientious physician psychologically needs protection against himself and his weaknesses, if he is to care fully for those who entrust themselves to him. A physician friend who worked many years in a hospice caring for dying patients explained it to me most convincingly: "Only because I knew that I could not and would not kill my patients was I able to enter most fully and intimately into caring for them as they lay dying."[66]

Dr. Kass asks us to consider the new normal that PAS would bring to patients:

Imagine the scene: you are old, poor, in failing health, and alone in the world; you are brought to the city hospital with fractured ribs and pneumonia. The nurse or intern enters late at night with a syringe full of yellow stuff for your intravenous drip. How soundly will you sleep? It will not matter that your doctor has never yet put anyone to death; that he is legally entitled to do so-even if only in some well-circumscribed areas-will make a world of difference.[67]

Finnis dramatizes this new normal, highlighting how the change in law leads to a change in patients' behavior:

A new zone of silence. Can I safely speak to my physician about the full extent of my sufferings, about my fears, about my occasional or regular wish to be free from my burdens? Will my words be heard as a plea to be killed? As a tacit permission? And why does my physician need my permission, my request?[68]

The trust that patients place in their doctors will be seriously breached if patients fear that their doctors may encourage-and actively facilitate-their death.

Physician-Assisted Suicide Creates Perverse Incentives for Insurance Providers. Physician-assisted suicide will create perverse incentives for insurance providers and the financing of health care. Assisting in suicide will often be a more "cost-effective" measure from the perspective of the bottom line than is actually caring for patients. In fact, some advocates of PAS and euthanasia make the case on the basis of saving money.

Baroness Mary Warnock, a leading ethicist in the United Kingdom, has argued, "If you're demented, you're wasting people's lives-your family's lives-and you're wasting the resources of the National Health Service." Warnock went on to suggest that such people have a "duty to die."[69]

Derek Humphry, founder of the Hemlock Society, also points to the role of money, noting that "the pressures of cost containment provide impetus, whether openly acknowledged or not, for the practicalities of an assisted death." He goes on to add that "the connections between the right-to-die and the cost, value, and allocation of health care resources are part of the political debate, albeit frequently unspoken." Humphry, however, was one advocate willing to speak about that cost: "It is impossible to predict exactly how much money could be saved.... Conservative estimates, however, place the dollar amount in the tens of billions."[70]

Physician-assisted suicide has affected the financing of health care in the United States as well. Dr. McHugh notes:

When a "right to die" becomes settled law, soon the right translates into a duty. That was the message sent by Oregon, which legalized assisted suicide in 1994, when the state-sponsored health plan in 2008 denied recommended but costly cancer treatments and offered instead to pay for less-expensive suicide drugs.[71]

Richard Doerflinger adds:

Last year, over half the patients who committed assisted suicide in Oregon relied on the government for their health coverage or had no coverage at all. Over three-quarters of those dying under Washington's assisted suicide law were partly or completely dependent on Medicare or Medicaid.[72]

This sets the stage for a perverse alignment of public financing and patient death, just as the New York Task Force predicted in its 1994 report:

Limits on hospital reimbursement based on length of stay and diagnostic group, falling hospital revenues, and the social need to allocate health dollars may all influence physicians' decisions at the bedside.... Under any new system of health care delivery, as at present, it will be far less costly to give a lethal injection than to care for a patient throughout the dying process....

Physicians who determine that a patient is a suitable candidate for assisted suicide or euthanasia may be far less inclined to present treatment alternatives, especially if the treatment requires intensive efforts by health care professionals.[73]

These perverse financial incentives will exercise a subtle but profound pressure on patients as the advice from their physicians and the procedures covered by their insurance increasingly point toward PAS. Given the increasing number of elderly patients in modern societies, their increasing longevity, and the increasing cost of treating their chronic illnesses, PAS will increasingly be seen as a cost-effective option and one that the elderly should be encouraged to consider.

Compromising the Family and Intergenerational Obligations

Physician-assisted suicide will also negatively affect our culture, especially the family and our intergenerational obligations. The temptation to view elderly or disabled family members as burdens will surely rise. The temptation for elderly and disabled family members to view themselves as burdens will also surely rise. Instead of the solidarity of civil society and true compassion, PAS threatens to create cheap solutions by eliminating those who are perceived as socially and economically burdensome.

The Family Has Responsibility for Disabled and Elderly Relatives. There is a natural cycle to human life. Human beings enter the world as entirely needy, totally dependent newborns. Many people exit life dependent on others as well. Along the way, there will undoubtedly be periods of trial and tribulation when people need the assistance of others. Traditionally, the family has been a central social institution for weathering life's storms. Mothers and fathers take care of children at the dawn of life, and then children take care of their aging parents at the twilight.

Family life is meant to include shouldering one another's burdens and assisting those in need. In his provocatively titled essay "I Want to Burden My Loved Ones," ethicist Gilbert Meilaender explains why he refuses to accept the logic of atomistic individualism:

Is this not in large measure what it means to belong to a family: to burden each other-and to find, almost miraculously, that others are willing, even happy, to carry such burdens? Families would not have the significance they do for us if they did not, in fact, give us a claim upon each other. At least in this sphere of life we do not come together as autonomous individuals freely contracting with each other. We simply find ourselves thrown together and asked to share the burdens of life while learning to care for each other.[74]

While the family is the primary institution tasked with intergenerational care, no family is an island. As Dr. Kass and Eric Cohen point out, families are situated within a larger culture-and the law shapes this culture:

Even if the burdens of aging and death are always borne most fully by individuals and families, how we age and die are not only private matters. Our communal practices and social policies shape the environments in which aging and caregiving take place-not only in moments of crisis, when life-or-death decisions need to be made, but in the long days of struggle and everyday attendance. Faith-based institutions and community groups support families in meeting those needs they cannot meet alone. Programs like Medicaid assist those who are old and impoverished, in need of nursing that they cannot themselves afford.[75]

Physician-Assisted Suicide Creates Heightened Pressures on Disabled and Elderly Family Members. The introduction of PAS would undermine familial relationships and promote the view that disabled and elderly relatives are not people to be loved but burdens to be managed. Physician-assisted suicide would alter how people in general view the disabled and elderly and how the disabled and elderly view themselves. On the interaction between the two groups, Professor Finnis describes a dramatic scene:

Another zone of fearful silence. Outside the door are the relatives. What will they be telling the doctor about my condition and my wishes? What is prudent to tell them about my suffering, my depression, my wishes? Are they interpreting my state of mind just as I would wish? Are their interests in line with mine?[76]

Physician-assisted suicide creates a temptation for relatives and thus undermines trust. Because of its potential to corrupt these intergenerational ties, Finnis concludes that in a world with PAS, "[m]any people will find that their nearest and dearest are less and less near, and less and less dear."[77]

Victoria Reggie Kennedy, widow of the late Senator Edward Kennedy (D-MA), campaigned against a bill that would have legalized PAS in Massachusetts on precisely these grounds. Kennedy noted that "the proposed law is not about bringing family together to make end of life decisions; it's intended to exclude family members from the actual decision-making process to guard against patients' being pressured to end their lives prematurely."[78] She went on to explain how her husband was able to die a true death with dignity by avoiding the pressures of assisted suicide:

When my husband was first diagnosed with cancer, he was told that he had only two to four months to live, that he'd never go back to the U.S. Senate, that he should get his affairs in order, kiss his wife, love his family and get ready to die.

But that prognosis was wrong. Teddy lived 15 more productive months.... Because that first dire prediction of life expectancy was wrong, I have 15 months of cherished memories-memories of family dinners and songfests with our children and grandchildren; memories of laughter and, yes, tears; memories of life that neither I nor my husband would have traded for anything in the world.

When the end finally did come-natural death with dignity-my husband was home, attended by his doctor, surrounded by family and our priest.[79]

Mrs. Kennedy concluded that most people wish for a good death "surrounded by loved ones, perhaps with a doctor and/or clergyman at our bedside." But with PAS, "what you get instead is a prescription for up to 100 capsules, dispensed by a pharmacist, taken without medical supervision, followed by death, perhaps alone. That seems harsh and extreme to me."[80] Indeed it is.

Even if legal protections against pressure and coercion could somehow be made effective, how could they prevent the corruption of culture? In a society with PAS, legal safeguards will not mute the clear moral message transmitted by laws allowing PAS: that some lives are "not worth living" and that some people have a duty to end their lives.

These cultural pressures are not merely the suppositions of cultural philosophy. They play out in real life. Dr. Hendin has documented many such stories, such as this one:

A wife who no longer wished to care for her sick, elderly husband gave him a choice between euthanasia and admission to a home for the chronically ill. The man, afraid of being left to the mercy of strangers in an unfamiliar place, chose to have his life ended; the doctor, although aware of the coercion, ended the man's life.[81]

These stories are not isolated incidents. Dr. Hendin reports that a study of Dutch hospitals found that "doctors and nurses reported that more requests for euthanasia came from families than from patients themselves. The investigator concluded that the families, the doctors, and the nurses were involved in pressuring patients to request euthanasia."[82] The same pressure is evident in the limited places where physician-assisted suicide is legal in the United States. Oregon Health Authority research found that 40 percent of those who were assisted with suicide cited being a burden on family or friends and caregivers as their motivation to end their lives.[83]

These considerations are particularly disturbing because suicide is a phenomenon that can spread throughout a society, based on imitation. Social scientists, Dr. Kheriaty notes, "know that there is a 'social contagion' aspect to suicide."[84] In its guide to preventing suicide, the World Health Organization notes the scholarly research on the imitative nature of suicide:

Over 50 investigations into imitative suicides have been conducted. Systematic reviews of these studies have consistently drawn the same conclusion: media reporting of suicide can lead to imitative suicidal behaviours.... Particular subgroups in the population (e.g., young people, people suffering from depression) may be especially vulnerable to engaging in imitative suicidal behaviours. Finally, and probably most importantly, overt description of suicide by a particular method may lead to increases in suicidal behaviour employing that method.[85]

Commenting on Brittany Maynard's suicide, Dr. Kheriaty argues that "given what we know about suicide's social effects, and given the media portrayal around her death, we can anticipate that her decision will influence other vulnerable individuals."[86] Dr. Kheriaty concludes that PAS will send a signal to legitimize such suicidal desires:

Refusing to legitimate suicide helps those in need. The practice of physician-assisted suicide ... sends a message that some lives are not worth living. The law is a teacher: If assisted suicide is legalized, this message will be heard by everyone who is afflicted by suicidal thoughts or tendencies.[87]

In doing so, PAS undermines our entire culture.

Betraying Human Dignity and Equality Before the Law

Perhaps the most profound injustice of PAS is that it violates human dignity and denies equality before the law. Every human being has intrinsic dignity and worth. For our legal system to be coherent and just, the law must respect this dignity by taking all reasonable steps to prevent the taking of innocent lives. Classifying a subgroup of people as legally eligible to be killed violates our nation's commitment to equality before the law and shows profound disrespect for the elderly and disabled.

No natural right to physician-assisted suicide exists, and arguments for such a right are indeed incoherent. A legal system that permits assisted suicide undermines the natural right to life for all of its citizens.

Every Human Being Has Intrinsic Human Dignity and Worth. The American Creed, best articulated in the Declaration of Independence, holds it to be a self-evident truth "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Philosophers Patrick Lee and Robert P. George explain that "every human being, of whatever age, size, or degree of development, has inherent and equal fundamental dignity and basic rights."[88]

This dignity does not depend on subjective evaluations of worth, even of self-worth, or on the ability to "contribute" to society. Rather, the dignity is intrinsic. Human dignity is not based on an instrumental account of what a person can do, but on recognition of what a human being is: a person made for reason, freedom, and love. Lee and George explain that "a human being is valuable as a subject of rights in virtue of what he or she is.... And so a human being remains a subject of rights, someone who has a right not to be intentionally killed, for as long as he or she exists."[89]

Of course, a belief in human dignity is not unique to the United States. The Universal Declaration of Human Rights begins by noting that the "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world."[90] The European Convention on Human Rights also emphasizes the inalienable right to life: "Everyone's right to life shall be protected by law. This right is one of the most important of the Convention since without the right to life it is impossible to enjoy the other rights."[91]

The Law Must Respect Human Dignity and Equality Before the Law. The deepest injustice of PAS, then, is that it treats some human lives as lacking dignity or worth-and therefore unworthy of the law's protection. Lee and George conclude that "the choice to kill an innocent human life, whether one's own or another's, even for the sake of avoiding terrible suffering, is intrinsically immoral. Euthanasia and suicide are contrary to the intrinsic dignity of human persons."[92]

Obviously, this does not require that every medical procedure to extend life must be accepted. As the Supreme Court held in a unanimous decision upholding New York's prohibition on PAS, there is a significant difference between allowing someone to die of natural causes and killing him.[93]

The D.C. assisted suicide bill, like most, attempts to define which lives are unworthy of legal protection and thus eligible for physician assistance in killing. That definition is unavoidably a statement of who is unworthy of legal protection.There is no way around it. While the evidence discussed in the first section of this paper indicates that its proposed safeguards would fail to ensure effective control, even the attempt to define which lives are eligible for suicide is a grave injustice: It violates human dignity and equality before the law. It declares that some lives matter less than others.

Disability-rights groups are particularly concerned about the ways in which assisted suicide deprives disabled people of the law's equal protection. In 2009, for example, Not Dead Yet, ADAPT, the Disability Rights Education and Defense Fund, the National Council on Independent Living, and the National Spinal Cord Injury Association filed a joint amicus brief in the Montana court system in a case reviewing Montana's law on assisted suicide.

Diane Coleman, president of Not Dead Yet, summarized these arguments in an article for the Disability and Health Journal.[94] Coleman explains that the push for assisted suicide undermines the value of the lives of people with disabilities:

The primary underlying practical basis for the physician's determination that the individual is eligible for assisted suicide is the individual's disabilities and physical dependence on others for everyday needs, which is viewed as depriving them of what nondisabled people often associate with "autonomy" and "dignity," and may also lead them to feel like a "burden." This establishes grounds for physicians to treat these individuals completely differently than they would treat a physically able-bodied suicidal person.[95]

In addition to denying the intrinsic human dignity of the disabled, PAS laws violate the equal protection of the law. The law and government officials would treat suicidal disabled citizens differently from able-bodied citizens:

Not Dead Yet's central argument is that legalized assisted suicide sets up a double standard for how health care providers, government authorities, and others respond to an individual's stated wish to die. Some people get suicide prevention while others get suicide assistance, and the difference between the two groups is the health status of the individual.[96]

As the joint amicus brief notes, "Assisted suicide singles out some people with disabilities, those labeled 'terminal' or very severely impaired, for different treatment than other suicidal people receive."[97] Government policy should seek to respect the innate dignity of the disabled by eliminating every form of unjust discrimination against them, not by expressly approving the worst form of discrimination of all.

A "Right" to Physician-Assisted Suicide Is Incoherent, Grounded in Neither Nature Nor Reason. Not only does PAS violate human dignity and equality, but any supposed right to assisted suicide is incoherent, grounded neither in nature nor in reason.

Dr. Kass highlights the absurdity of a "right to die": "As the ultimate new right, grounded neither in nature nor in reason, it demonstrates the nihilistic implication of the new ('postliberal') doctrine of rights, rooted in the self-creating will." He later adds: "If we start at the beginning, with the great philosophical teachers of natural rights, the very notion of a right to die is nonsensical." This is partly because "the right to life is a matter of nature, not will."[98] Dr. Kass notes that:

We Americans hold as a self-evident truth that governments exist to secure inalienable rights, first of all, the right to self-preservation; now we are being encouraged to use government to secure a putative right of self-destruction. A "right to die" is surely strange and unprecedented, and hardly innocent.[99]

If there is a right to the pursuit of happiness, how could one argue that the pursuit of happiness could entail the elimination of the person with that right?[100]

The American Founders would agree with Professors Kass, Lee, and George. They distinguished liberty from license. Liberty, they rightly understood, is self-directed action in accord with the moral law; license is self-destructive action that debases one's community. The Founders would have little patience for an argument based on "autonomy" (what they would view as license) to commit PAS, especially as the legal allowance of such a practice would threaten other people's right to life. Dr. Kass highlights the absurdity in terms of the philosophy of Kant:

For Kant, autonomy, which literally means "self-legislation," requires acting in accordance with one's true self-that is, with one's rational will determined by a universalizable, that is, rational maxim. Being autonomous means not being a slave to instinct, impulse or whim, but rather doing as one ought, as a rational being. But "autonomy" has now come to mean "doing as you please," compatible no less with self-indulgence than with self-control.[101]

Any purported right to assisted suicide is both incoherent and impossible to specify. To highlight this incoherence and lack of specificity, John Finnis reflected on the phrase "right to die":

Where is the proposition specifying who has the right, to what acts, by which persons? Is it the right of terminally ill patients? (And what is terminal illness?) Or only of those who are suffering? (And what sort and degree of sufferings?) Or of all who are suffering whether or not their illness is terminal? Is it a right only to be assisted in killing oneself...? Or also that others be permitted (or perhaps under a duty) to kill me? (When I cannot do so myself? Or also when I choose?)[102]

In truth, the entire concept of a right to assisted suicide will be applied only to certain people whom government officials have classified as "eligible." Finnis explains:

Even when you fall seriously ill, or become clinically depressed, you will find (if the reformers [i.e., those proposing bills to allow assisted suicide] are to be believed) that your right to autonomy does not give you the right to be assisted in suicide unless you are ill enough or suffering enough, or depressed severally and incurably enough-in each case "enough" in the view of somebody else, other people.[103]

Rather than allow the government to decide whose life is unworthy of life, it is much better to have the government respect the intrinsic dignity of every human life and thus provide for the equal protection in law of all human beings. The alternative, as Finnis presents it, requires that we "allow some people to sit in judgment on the life of another human person, to judge that person's life worthless, and so to authorize themselves or others to carry out that person's request for death."[104]

If we empower such people to judge other people's lives as worthless, how long will it be until the choice for death under certain circumstances becomesan obligation-perhaps enforced by other people. Thus, an incoherent "right" to assisted suicide might very well result in a duty to have oneself euthanized.

The Legal System as a Whole Must Protect Rights. Physician-assisted suicide would transform our nation's legal system. A society that creates a right to assisted suicide will seriously compromise the natural right not to be killed. As Finnis has argued, "A whole new breed of lawyers and law teachers and judges will rapidly come into existence to give effect to the new régime."[105] With this new set of legal officials interpreting and enforcing new laws, society can expect to see more people have their right not to be killed violated.

Given the various ways in which PAS will change the practice of medicine, law, and the culture, Finnis asks "which legal framework will take ... rights most seriously." He answers:

[T]he secular, highly experienced, and sophisticated members of the Walton Committee [House of Lords Select Committee on Medical Ethics, chaired by Lord Walton] and the New York Task Force judge that if euthanasia were legalized at all, the right not to be killed would be catastrophically nullified for very many more people than the few whose supposed right to die is compromised by present law.[106]

The right not to be killed cannot be protected effectively in a nation that allows physician-assisted suicide.

The Alternative: Respecting Human Dignity and Equality and Offering True Compassion

Physicians are always to care, never to kill. They are to eliminate illness and disease but never eliminate their patients. Not every medical means must be used. Patients can refuse or doctors can withhold particular treatments that are useless or causing more harm than good.[107] But in deciding that a treatment is useless, we must not decide that a patient is worthless. Doctors should not kill.

Mental Health and Palliative Care: True Compassionate Treatment. Instead of embracing PAS, we should respond to suffering with true compassion. Most people seeking PAS suffer from depression or other mental illnesses, physical illness, or simply loneliness. Dr. Kheriaty notes:

Suicidal individuals typically do not want to die; they want to escape what they perceive as intolerable suffering. When comfort or relief is offered, in the form of more-adequate treatment for depression, better pain management, or more-comprehensive palliative care, the desire for suicide wanes.[108]

Rather than helping suicidal people to kill themselves, we should offer them treatment and support. For those in physical pain, palliative care and other pain management can manage their symptoms effectively. For those for whom death is imminent, hospice care and fellowship to accompanying them in their last days is what a true death with dignity looks like. Victoria Reggie Kennedy has said it best:

My late husband Sen. Edward Kennedy called quality, affordable health care for all the cause of his life. [PAS] turns his vision of health care for all on its head by asking us to endorse patient suicide-not patient care-as our public policy for dealing with pain and the financial burdens of care at the end of life. We're better than that. We should expand palliative care, pain management, nursing care and hospice, not trade the dignity and life of a human being for the bottom line.[109]

Palliative care focuses on improving a patient's quality of life by alleviating pain and other distressing symptoms of a serious illness. Palliative care is an option for people of any age at any stage in illness, whether that illness is curable, chronic, or life threatening.

When a patient receives a terminal or life-altering diagnosis, the subsequent life changes are not limited to the medical challenges. Patients encounter the physical trauma of the medical diagnosis while also experiencing psychological difficulties, social changes, and even existential concerns. In Oregon Health Authority research, 91 percent of those who were assisted with suicide cited loss of autonomy as their motivation to end their lives, and 71 percent cited loss of dignity as their motivation. Only 31 percent cited inadequate pain control.[110] These needs require different forms of care. Palliative care seeks to take into consideration every facet of the patient's situation-with professionals who can attend to all aspects of the patient's needs.

The most common structure in which patients receive palliative care is in hospice. Hospice care can be provided in patients' homes, hospice centers, hospitals, long-term care facilities, or wherever a patient resides. By rejecting PAS and committing to palliative care and hospice care, we can better people's lives at the end of life. As Dr. Kass notes:

We must care for the dying, not make them dead. By accepting mortality yet knowing that we will not kill, doctors can focus on enhancing the lives of those who are dying, with relief of pain and discomfort, moral and social support, and, when appropriate, the removal of technical interventions that are merely useless or degrading additions to the burdens of dying.[111]

Regrettably, palliative care is not as widely available as it should be. The United States has only one palliative care physician for every 1,200 persons living with a serious or life-threatening illness. Even with the aging population, only 63 percent of hospitals report a palliative care program.[112]

In order to increase the availability and understanding of palliative care, medical schools should ensure that students are trained in managing pain and other common distressing symptoms and that they learn how to talk to patients about palliative options at the end of life. As Drs. Hendin and Foley note, when there is a lack of comprehensive support for patients with terminal or life-altering diagnosis, "the focus shifts away from relieving the distress of dying patients considering a hastened death to meeting the statutory requirements for assisted suicide."[113] This we must resist.

Always to Care, Never to Kill

Doctors should help their patients die a dignified natural death, but doctors should not assist in killing or self-killing. Physicians are always to care, never to kill.

Physician-assisted suicide endangers the weak and marginalized in society. Where PAS has been allowed, safeguards that were put in place to minimize this risk have proved inadequate and over time have been weakened or eliminated altogether.

Introducing PAS changes the culture in which medicine is practiced. It corrupts the profession of medicine by permitting the tools of healing to be used as techniques for killing. It also distorts the doctor-patient relationship by reducing patients' trust of doctors and doctors' undivided commitment to the healing of their patients. Physician-assisted suicide also creates perverse incentives for insurance providers and the financing of health care.

Worse yet, PAS negatively affects our entire culture. The temptation to view elderly or disabled family members as burdens will increase, as will the temptation for elderly and disabled family members to view themselves as burdens. Instead of solidarity through civil society and true compassion, PAS creates quick-fix, discriminatory, and lethal solutions.

The most profound injustice of PAS is that it violates human dignity and denies equality before the law. Every human being has intrinsic dignity and is the subject of immeasurable worth. No natural right to PAS exists, and arguments for such a right are incoherent. A legal system that sought to vindicate a right to assisted suicide would jeopardize the real natural right to life for all of its citizens.

For all of these reasons, citizens and policymakers need to resist the push for physician-assisted suicide.
-Ryan T. Anderson, PhD, is William E. Simon Fellow in the Richard and Helen DeVos Center, of the Institute for Family, Community, and Opportunity, at The Heritage Foundation.

Show References

Authors

Ryan Anderson

Read Full Report

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Always Care, Never Kill: How Physician-Assisted Suicide Endangers the Weak, Corrupts Medicine, Compromises the Family, and Violates Human Dignity and Equality

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The Hippocratic Oath proclaims: "I will keep [the sick] from harm and injustice. I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect."[1] This is an essential precept for a flourishing civil society.

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http://www.cnn.com/2017/01/25/politics/sanctuary-cities-explained/index.html

https://worldpopulationreview.com/state-rankings/sanctuary-states

https://www.aclu.org/other/major-developments-relating-sanctuary-cities-under-trump-administration

https://www.reuters.com/article/us-usa-immigration-sanctuary/trump-says-he-will-block-u-s-funds-to-sanctuary-jurisdictions-idUSKBN20S1V0

https://www.reuters.com/world/us/exclusive-us-justice-department-ends-trump-era-limits-grants-sanctuary-cities-2021-04-28/

https://www.procon.org/headline.php?headlineID=005333

https://www.dallasnews.com/opinion/commentary/2015/08/04/the-pros-and-cons-of-sanctuary-cities

https://www.heritage.org/immigration/commentary/sanctuary-cities-thats-constitutional-hell-no

https://www.splcenter.org/20180308/current-state-sanctuary-law

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The term "sanctuary state" is a phrase that takes on different meanings in politically-charged conversations. Members of the Republican party see sanctuary states or sanctuary cities as places where illegal immigrants are protected. On the other hand, the Democratic view of sanctuary states are areas where illegal immigrants are protected from aggressive attempts of deportation.

In general, the term sanctuary state means a state that limits its cooperation with federal immigration enforcement agents as much as possible to protect illegal immigrants that have come to this country to make a living. While some illegal immigrants are protected, those that commit serious crimes are turned over to authorities. Some proponents of sanctuary states and cities believe that the term is misleading, which is why some use the term "safe" to replace sanctuary.

Whether you agree with it or not, the fact remains that there are sanctuary cities and sanctuary states in the United States. This has come to light in recent years, as President Donald Trump has aggressively pushed for the removal of all illegal immigrants. As of early 2019, there are seven sanctuary states, according to the Center for Immigration Studies. Those states are: California, Colorado, Illinois, Massachusetts, New Mexico, Oregon, and Vermont.

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The term "sanctuary state" is a phrase that takes on different meanings in politically-charged conversations. Members of the Republican party see sanctuary states or sanctuary cities as places where illegal immigrants are protected. On the other hand, the Democratic view of sanctuary states are areas where illegal immigrants are protected from aggressive attempts of deportation.

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Same Sex Marriage & Religious objections 

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Same Sex Marriage & Religious objections 

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https://ballotpedia.org/Obergefell_v._Hodges

https://sites.law.lsu.edu/civilian/2015/08/obergefell-v-hodges-decision-debate-2/

https://www.csmonitor.com/USA/Politics/Politics-Voices/2015/0708/Same-sex-marriage-and-federalism-Miles-s-Law-wins-again

https://www.nbcnews.com/feature/nbc-out/supreme-court-allows-mississippi-anti-lgbt-law-stand-n835721

https://www.usatoday.com/story/news/nation/2017/09/20/aclu-sues-michigan-over-religious-exemptions-adoptions/682065001/

https://www.aclu.org/cases/dumont-v-gordon

https://www.nbcnews.com/feature/nbc-out/states-across-u-s-still-cling-outdated-gay-marriage-bans-n1137936

https://www.aljazeera.com/news/2021/6/17/us-supreme-court-sides-with-catholic-group-in-lgbt-rights-dispute

https://www.npr.org/2017/02/28/517092031/in-religious-freedom-debate-2-american-values-clash

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The US Supreme Court ruled in favour of a Catholic Church-affiliated organisation in a case involving its opposition to same-sex marriage [File: Evelyn Hockstein/Reuters]

The United States Supreme Court has embraced religious rights over LGBTQ rights by ruling in favour of a Catholic Church-affiliated agency that sued after Philadelphia refused to place children for foster care with the organisation because it barred same-sex couples from applying to become foster parents.

The 9-0 ruling on Thursday, written by conservative Chief Justice John Roberts, was a victory for Catholic Social Services, part of the Archdiocese of Philadelphia. The court said the city's refusal to use the Catholic agency for foster care services unless it agreed to certify same-sex couples violates the US Constitution's First Amendment guarantee of the free exercise of religion.

Catholic Social Services (CSS) argued that Philadelphia had penalised it for its religious views and for following church teachings on marriage. The court did not rule on some of the broader legal questions raised by religious rights advocates.

"The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment," Roberts wrote in the ruling.

Although the court ruled in favour of CSS, the Americans Civil Liberties Union (ACLU) noted that the court did not establish a precedent for religious groups to dismiss non-discrimination laws.

"We are relieved that the court did not recognize a license to discriminate based on religious beliefs," Leslie Cooper, deputy director of the ACLU LGBTQ & HIV Project, said in a statement.

"Opponents of LGBTQ equality have been seeking to undo hard-won non-discrimination protections by asking the court to establish a constitutional right to opt out of such laws when discrimination is motivated by religious beliefs," Cooper said.

The case, argued before the court in November, pitted LGBTQ rights against religious rights. It was one of the first main cases that former President Donald Trump's third appointee to the court, Amy Coney Barrett, participated in after being confirmed by the US Senate in October.

The Philadelphia-based 3rd US Circuit Court of Appeals in 2019 ruled against Catholic Social Services, saying it had not shown that Philadelphia had treated it differently because of its religious affiliation. US District Judge Petrese Tucker in Philadelphia in 2018 also ruled against the organisation, finding that the city's anti-discrimination measures were applied uniformly, meaning the group's religious rights were not violated and it was not entitled to an exemption.

Catholic Social Services, which has helped provide foster care services for more than a century, had said it would be compelled to close its foster care operations if it was unable to participate in Philadelphia's programme.

Philadelphia in 2018 suspended foster care referrals to Catholic Social Services, which then sued alongside three foster parents.

Eleven of the 50 states currently allow private agencies to refuse to place children with same-sex couples, according to the Movement Advancement Project, a group backing gay rights.

Philadelphia in 2018 suspended foster care referrals to Catholic Social Services after a newspaper report about the organisation's policy of turning away same-sex couples seeking to serve as foster parents. The organisation had a contract with the city for the placement of foster children. It said the city's action meant that available foster homes were sitting empty amid a foster care crisis in the city of about 1.5 million people.

The Supreme Court in recent years has sent mixed messages on the conflict between LGBTQ and religious rights.

It backed gay rights in a series of landmark rulings, including a 2015 decision legalising same-sex marriage nationwide and a June 2020 ruling that a federal law barring workplace discrimination protects gay and transgender employees.

The court also bolstered religious rights in several decisions, including a 2014 ruling that allowed owners of businesses to raise religious objections against the government.

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US Supreme Court rules for Catholic group in LGBTQ rights dispute

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The United States Supreme Court has embraced religious rights over LGBTQ rights by ruling in favour of a Catholic Church-affiliated agency that sued after Philadelphia refused to place children for foster care with the organisation because it barred same-sex couples from applying to become foster parents.

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https://www.cnn.com/2021/09/09/politics/joe-biden-covid-speech/index.html

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biden announces new vaccine mandates that could cover 100 million americans - cnnpolitics

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Biden announces new vaccine mandates that could cover 100 million Americans

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President Joe Biden on Thursday imposed stringent new vaccine rules on federal workers, large employers and health care staff in a sweeping attempt to contain the latest surge of Covid-19.

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Laws Relating to the Death Penalty

Constitution * Congress * Executive * Federal Courts * State Governments

Introduction

Most of the discussion we hear about the death penalty concerns practices by state governments. States traditionally are responsible for policing and crime/prosecution, and most criminal trials are held in state courts.

The federal government has the death penalty too - for federal offenses. It has been used much less frequently. In fact, under Obama, the federal government placed the federal death penalty on hold (a formal moratorium on executions) to do a review of the practice. The review was spurred by a highly publicized failed execution in Oklahoma, where the prisoner regained consciousness and exhibited signs of pain during the execution.

The federal death penalty has gained public attention recently as President Trump's Justice Department declared on July 25, 2019 that the U.S. government will resume executions.

Most cases that make their way to the federal court system, however, are state death penalty cases. The Constitution places limits on states' criminal punishment processes (Eighth and Fourteenth Amendments), so many cases are constitutional challenges by individuals to state death penalty practices. In the October 2018 term, for example, the Supreme Court evaluated an inmate's challenge to a state's execution method (Bucklew v. Precythe) and an inmate's challenge to his state execution based on his mental state (Madison v. Alabama). In the upcoming term, the Supreme Court will evaluate the state of Kansas's approach (or lack thereof) to allowing an insanity defense in a death penalty case (Kahler v. Kansas).

Legal Landscape
What laws relate to the death penalty in the United States?

The Constitution
The Federal vs. State Death Penalty
The Legislative Powers part of the Constitution ( Article I) gives Congress the power to make laws relating to certain "federal" issues, or issues of national concern. Those powers are listed/enumerated in Article 1 (at Section 8) (and called the " Enumerated Powers"). The end of the list says that Congress, in addition, has the power to make any laws "necessary and proper" to carry out the rest of the laws (the " Necessary and Proper Clause ").

Because of the clauses above, the death penalty on the federal level is imposed in relation to crimes that are inherently federal. The Enumerated Powers include, for example (a nonexhaustive list):

crimes "committed on the high seas,"

"organizing, arming, and disciplining, the Militia" and

(the most expansive) regulating commerce with foreign nations, between the states and with Indian nations

The Tenth Amendment of the Constitution says that the States have all powers not specifically granted to the federal government. This is the concept of "Federalism." Federalism is code for states' autonomy (on all issues not-federal).

General powers of crime and punishment traditionally are state powers. This is most of what we think of as criminal law. Because police power is traditionally "local" or state-controlled, most often the death penalty is imposed by a state government. States must abide by the protections of the Constitution, the Bill of Rights, when they carry out the death penalty.
Protections in the Bill of Rights:
The Eighth Amendment protects individuals against "cruel and unusual punishment." This applies to both the federal government and to state governments. Many individuals have challenged the death penalty using the 8th Amendment. See cases in the Judicial section.

The Sixth Amendment guarantees that a defendant has the right to have a jury decide the facts of the case instead of the judge. Ring v. Arizona is a Supreme Court case that applied this to the death sentence (see Judicial section).

The Fourteenth Amendment includes a right to Procedural Due Process. Procedural due process ensures fairness in the process by which someone's life, liberty or property rights may be taken away. It includes, for example, the right to a fair trial and the right to confront witnesses against you. In regards to the death penalty, due process concerns sometimes are considered under the 8th Amendment or the 6th Amendment.

Congress

The federal government conducts many fewer executions than the state governments. Since 1977, there have been 37 federal executions and 1453 by the states (reported by the Death Penalty Information Center).

We outline here the laws of the early federal death penalty and of the the modern federal death penalty.
The Early Federal Death Penalty:
The Crimes Act of 1790 was the first law allowing for the federal death penalty. Federal crimes that received the death penalty were treason, counterfeiting federal records, murder, disfigurement and robbery in federal jurisdictions or on the high seas.

In 1897, " An Act To reduce the cases in which the penalty of death may be inflicted " was passed. It narrowed the number of federal crimes that could qualify for the death penalty and also made a death sentence an option for juries rather than required. With this Act, the federal death penalty occurred much less frequently.
Expanded Federal Law Enforcement
Throughout the 20th century, social perception of the death penalty rose and fell. While some states abolished the death penalty, the federal government began inserting itself more into federal law enforcement. The goal (sometimes a political one) was to be tough on organized crime.
Conflict with States on Place of Execution
When the states started abolishing the death penalty and the federal government continued, a practical difficulty arose. If a person is sentenced to death for a federal crime in a state that does not conduct executions, where should the execution take place?

In the 1930s, the federal government, led by an Attorney General with a tough-on-crime political agenda executed someone for a federal crime in Michigan. Michigan was the first state that abolished the death penalty. Holding the execution in the state caused controversy. Today, there is a law directing that for federal law executions tried in a state without the death penalty, the judge should identify an executing state to impose the punishment. However the practice of trying someone with a potential death sentence in a state without the death penalty is still controversial because the federal government is essentially bypassing state law. See the discussion about Attorneys General in the Executive section.
Temporary Halt of Executions
Societal opposition to the death penalty reached a high in the 1960s. Activists led by the NAACP brought a series of legal challenges to the death penalty, which jammed up the courts and caused delays. The federal government conducted its last execution of the 20th century in 1963. In 1972, the Supreme Court ruled the death penalty, as it was applied in Georgia, was unconstitutional, but the Court did not explain exactly why. The decision left the death sentence unclear around the nation. See Furman v. Georgia (Judicial section). The federal government did not enact a law to reengage the death penalty until 1988.
The Modern Day Federal Death Penalty:
The Anti-Drug Abuse Act of 1988, the first death penalty law after years of nonuse, established the death penalty for intentional killing related to a "continuing criminal enterprise" or a major drug felony. The Act was passed during the "War on Drugs" and the process pronounced was intended to address the ruling in Furman v. Georgia (see Judicial section).

The Federal Death Penalty Act of 1994 established additional categories for which the death penalty can be imposed. These crimes fall into three categories: (1) homicide offenses; (2) espionage and treason; and (3) non-homicidal narcotics offenses. The Act also created procedures for carrying out the federal death penalty. This Act was part of the Violent Crime Control and Law Enforcement Act of 1994.

The Antiterrorism and Effective Death Penalty Act of 1996 validated the death penalty for a U.S. citizen found guilty of using a weapon of mass destruction. It also reformed (majorly limited) the process by which a citizen could appeal to a federal court on grounds that the state court had treated his case unfairly. This appeal, called habeas corpus, is used as a last resort for individuals on death row and has found serious errors in state capital cases.

The USA PATRIOT Improvement and Reauthorization Act of 2005 established new procedures for the death penalty for individuals convicted of terrorism.

For a complete list of federal offenses that qualify for the death penalty, see the Death Penalty Information Center.

The President and Executive Agencies

The Department of Justice plays an important role in death penalty enforcement. That's because attorneys in the DOJ represent the government against people accused of crimes. If a federal law allows for the death penalty (see Legislative section), the DOJ decides whether it will ask for the death penalty in a specific case.

The Attorney General, the head of the Department of Justice, leads the federal government in deciding the process determining when the death penalty will be sought and how aggressively.
Attorney General Janet Reno
In 1995, to address the new activity of the federal death penalty that had come with the Federal Death Penalty Act, then-Attorney General Janet Reno issued procedures for the Department of Justice to follow when seeking the death penalty:

The Death Penalty Protocol is a set of rules that the government follows in determining whether or not to seek the death penalty in a particular case. As first issued by AG Janet Reno, all cases in which a U.S Attorney decided to seek the death penalty would have to be approved by the Attorney General and a proper evaluation of the case would need to take place. As mentioned in the Legislative section, the federal death penalty could cause controversy if sought in a non-death penalty state. The Protocol under Janet Reno acknowledged the difference of states' laws and ended up seeking the death penalty less often in states that had abolished the death penalty. The Protocol also permitted a plea deal to act as a work-around for a U.S. Attorney to avoid seeking the death penalty.

Attorney General John Ashcroft, a death penalty proponent who stepped in with George W. Bush in 2001, altered the Death Penalty Protocol to encourage its use. He places restrictions on plea deals that allowed U.S. Attorneys to get away from seeking the death penalty.

Attorney General Alberto Gonzales, also appointed by George W. Bush, made clear that the federal death penalty was to be applied with consistency around the nation. This again made it more difficult to avoid the federal government seeking the death penalty even in a state that had abolished it.

Attorney General Eric Holder, appointed by Barack Obama, was personally opposed to the death penalty. He questioned and ordered a review of its use, but he also approved federal prosecution of the death penalty in several cases. In 2015, Holder ordered a nationwide halt on the death penalty after an error of an execution in Oklahoma. He placed executions on hold until the Supreme Court could review the practice. The Court affirmed it (see Glossip v. Gross in the Judicial section).

Attorney General Jeff Sessions, appointed by Donald Trump (and then replaced), is an outspoken supporter of the death penalty. Here is an article critical of his actions seeking the death penalty as Alabama's attorney general.

Attorney General William Barr, who replaced Jeff Sessions under Trump, also supports the death penalty. On July 25, 2019, Barr formally declared an end to the hold on federal executions. The same press release stated the U.S. will use the drug pentobarbital to conduct the executions. The drug caused several botched executions in the past, and the government will likely face lawsuits challenging its use.

Current Federal Death Penalty Protocol. You can read the current rules here.

See this article by Tirschwell and Hertzberg for an account of the federal death penalty, which was instructive in creating this report.

Federal Courts
Background on Death Penalty in the Supreme Court:
In Weems v. U.S. (1910), the Supreme Court ruled that the protection against cruel and unusual punishment means that "punishment for [a] crime should be graduated and proportioned to [the] offense." The case was not a death penalty case, but it set out the proportionality rule.

In Furman v. Georgia (1972), the Supreme Court ruled the death sentence, given arbitrarily (without rational standards to determine when it should be imposed), violates the 8th Amendment's prohibition of cruel and unusual punishment. Five of the Justices making up the majority believed that Furman's case was one of those arbitrary/unjust ones, but they did not agree on exactly why. The justices wrote several concurrences and dissents. In Furman, a man committed murder during a robbery when he tripped and his gun went off, killing the victim. After Furman, states widely rethought and redefined their death penalty statutes. It was not until 1976, the next set of cases that the Supreme Court clarified the constitutionality of the death penalty.

In 1976, the Supreme Court decided the " Death Penalty Cases ":

After Furman, considering these cases together, the Court ruled to guide states as to what the constitution would permit in regards to the death penalty. It declared that the nation still supports the death penalty as a method of punishment, both for retributive purposes (to get back at someone who commits a most grievous affront to humanity) and for deterrent ones (concluding someone may consider the death penalty before committing a calculated murder although no empirical study showed this). The Court set rules on the trial decision process necessary to conclude in a sentence of death. State laws defining how a case may result in a death sentence must include a several-step process that adequately narrows an individual first into an offense eligible for consideration of the death penalty, and then into the type of person especially deserving of the worst type of punishment (some states use "aggravating factors" for this latter analysis).
More Recent Cases Setting Boundaries on the Death Penalty: Death Penalty not Allowed for Individuals with Intellectual Disabilities:
In Atkins v. Virginia (2002), the Supreme Court ruled the death penalty is not valid for an individual with an intellectual disability. The Court acknowledged a lessened culpability for those individuals and said the standards of decency do not justify the penalty of death in such a case. The Court said that determining the proportionality of the punishment should be considered by the standards of today instead of the standards of when the 8th Amendment was enacted. Several later cases have considered how to determine whether someone has an intellectual disability that can qualify for this defense.
Death Penalty not Allowed for Juveniles:
In Roper v. Simmons (2005), the Supreme Court ruled the death penalty is not valid for juveniles. It violates the 8th Amendment because sentencing a juvenile to death was out of line with national standards of decency. The Court pointed to the number of states that disallowed it (30 at the time).
Death Penalty not Allowed for Rape Alone:
In Kennedy v. Louisiana (2008), the Supreme Court ruled the death penalty is not valid for an individual convicted of raping of a child where death was not caused and death was not the intended result. It violates the 8th Amendment because the sentence was not proportional to the crime. This decision means that a death sentence cannot be imposed on someone who did not commit murder.
Death Penalty Without Intending Murder Allowed if Involved in a Felony:
In Tison v. Arizona (1987), the Supreme Court ruled that the death penalty may be imposed for someone involved with a felony (present and aiding in the course of a felony) in which a murder occurred, regardless of whether that person caused or intended to cause the murder, as long as the person was substantially involved with the felony and exhibited a reckless disregard for human life. This rule is very controversial.
Jury Must Decide the Facts to Determine a Death Sentence:
In Ring v. Arizona (2002), the Supreme Court ruled a jury must decide on the facts, rather than a judge, to determine the imposition of the death penalty. Arizona argued that the judge should be able to decide "aggravating factors" to push the penalty to death, after a jury has decided the capital offence. But the Court disagreed. The right to have a jury decide such important facts is a guarantee of the 6th Amendment.
Manner of Execution: Some Risk of Pain is Allowed.
In Baze v. Rees (2008), the Supreme Court ruled that lethal injection is permissible and does not constitute cruel and unusual punishment. The 8th Amendment bans punishments of torture, including "deliberate infliction of pain for the sake of pain." This case challenged a lethal injection method of a three-drug process because administering the drugs has a potential for error and consequently the potential for pain. The Court ruled a method of execution is unconstitutional only if it has a "substantial risk of serious harm" or an "objectively intolerable risk of serious harm." In short, the state must avoid unnecessary cruelty by trying to avoid pain and trying to ensure the process is quick but it does not need to adopt any proposed alternatives unless an alternative is tested (proven by study) to be equally effective and without its own concerns.

In Glossip v. Gross (2015), the Supreme Court affirmed a three-drug lethal injection process similar to the one in Baze above. The Court reasoned that because the death penalty is constitutional, "there must be a constitutional means of carrying it out." It restated that some risk of pain is inherent in imposing a death sentence and the lethal injection method prevalent in many states today is the states' best efforts at imposing a quick and painless death. The dissent by Justice Breyer suggested the Court revisit the issue of whether the death penalty is constitutional.

The Glossip opinion starts with a history of the methods of execution. For those interested in reading it, skim past the first four pages (the "Syllabus" which is the summary).

State Governments

States define their own categories of crimes. In all states, murder has varying degrees, ranging from unintentional to intentional and horrific. The most severe kinds of murder are those for which the state may, within the limits of the U.S. Constitution, seek a death penalty.

Some states have banned the death penalty through their own State Constitutions. Michigan, the first state to abolish the death penalty, actually specifically stated so in its Constitution, while in other states, the courts ruled the death penalty violates the state's constitution.

Some states have banned the death penalty by legislative acts.

Some states still use the death penalty.

See here to get state-by-state information (from the Death Penalty Information Center). Click around on this site, which has a lot of information about the death penalty.

The 31 states allowing the death penalty must follow Constitutional requirements. So any state laws (definitions of murder allowing the death penalty or procedures related to the death penalty) must not violate the limitations discussed in the Judicial section.

You can see a map of death penalty states here, along with state-specific information about methods of execution and recent laws relating to the death penalty (from the National Conference of State Legislatures).

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The Death Penalty in the United States | Subscript Law

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Laws Relating to the Death Penalty Constitution * Congress * Executive * Federal Courts * State Governments Introduction Most of the discussion we hear about the death penalty concerns practices by state governments. States traditionally are responsible for policing and crime/prosecution, and mo ...

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Obstacles to carrying out the death penalty are mounting, keeping the number of executions conducted in the United States low, experts say. Only a few of the 31 states where capital punishment remains legal still put prisoners to death. And the decision in May by one of the world’s top pharmac…

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There was little surprise in a federal jury's voting death for Boston Marathon bomber Dzhokhar Tsarnaev, and little ground for sympathy to be found in the record of the defendant himself beyond his sheer youth. While the evidence presented at trial seemed to confirm the picture of his enraged older brother Tamerlan as the radicalized instigator of their brutal and nihilistic marathon plot, Dzhokhar's protracted and active role ahead of time, and his stone-cold activities in the hours following the bombing-calmly cruising the dairy aisle at Whole Foods-are not the material from which a strong mitigation case is made. To spare him, the jury would have had to vote against capital punishment itself; since they were "death qualified" ahead of time in the selection process this was never in the cards.

But while perhaps inevitable, Tsarnaev's federal-court death sentence is still profoundly unsettling for most Bostonians-and should be unsettling nationwide too. Tsarnaev was sentenced to death in a state that had abolished capital punishment 31 years ago; in a city whose residents had overwhelmingly preferred him to be imprisoned for life; and in a courtroom in which sat survivors and family members left bereft by the Tsarnaevs' warped jihad who themselves were deeply divided about his fate. What does it mean that a killer is sentenced to die by lethal injection against the wishes-expressed in law, polls and the words of many survivors-of the very community he injured? What is the purpose of a federal prosecution's imposing capital punishment on a region that wants none of it, at a moment when capital punishment has been abandoned by more than one-third of all states?

State death-penalty law, for better or worse, is usually a deep reflection of local history, culture, and debate. That's true in the states that still routinely execute prisoners-Texas, Oklahoma, and the Deep South death-penalty strongholds; those that shut their death rows decades ago, such as West Virginia and Michigan; and the nine states that have abolished capital punishment since 1980, including Massachusetts.

The federal death penalty, on the other hand, is a different story: largely a recent invention, radically expanded during a few brief years of Bill Clinton's presidency. Ever since, the federal death penalty-both in the laws passed by Congress and the cases selectively pursued by US Attorneys-has been all about politics of the most cynically expedient variety. Most relevant to the Tsarnaev case, the federal death penalty has been a convenient vehicle for Washington Republicans and Democrats alike to profit from the same terrorism panic which after 9/11 saddled us with the Patriot Act.

Up until twenty years ago, the federal death penalty was limited to treason and a handful of other rare offenses not covered by state criminal laws. But in 1994, the Clinton administration-responding to the first World Trade Center bombing and otherwise hoping to burnish its tough-on-crime credentials-radically expanded capital punishment, writing terrorism in among dozens of new federal death-penalty offenses in that year's sweeping criminal-justice reform package. It didn't do much good; seven months after the bill was signed, Timothy McVeigh and two co-conspirators bombed the Murrah Federal Building in Oklahoma City (a tragedy whose 20th anniversary was marked during the Tsarnaev trial). So the next year, Clinton and Congress went even further, pushing through the Antiterrorism and Effective Death Penalty Act. This package-surely one of the most deceptively labeled bills of all time-limited habeas corpus and otherwise weakened the protections offered to state and federal death-row prisoners alike, most having nothing to do with terrorism, national security, or anything other than conventional murder.

Between them, these two reforms gutted the federal appeals rights of conventional death-row prisoners. By putting crimes previously prosecuted by states onto the federal books, they also enabled US Attorneys to push capital trials into non-death penalty jurisdictions, occasionally leading to notable conflicts. In 2011, for instance, federal prosecutors in Rhode Island-a state without capital punishment since the eighties-insisted on pursuing capital charges against a gas-station robber who would otherwise have been tried, convicted, and sentenced in state criminal courts. Then-governor Lincoln Chafee, incensed at this imposition of a death-penalty trial on his state, committed a singular act of civil disobedience: for almost two years he refused to hand the offender over to the feds. The dispute was settled only when the robber pleaded guilty in return for life without parole.

But terrorism? As far as national security is concerned, the federal death penalty has been meaningless. It did nothing to deter Oklahoma City, the 9/11 attacks, or ideologically motivated lone wolves like Nidal Malik Hassan, the Fort Hood shooter, or the Tsarnaevs. Meanwhile Khalid Sheikh Mohammed and other 9/11 conspirators won't even be tried under the Antiterrorism and Effective Death Penalty Act, since the same politicians who clamor for the death penalty for terrorism suspects are unwilling to entrust Guantánamo prisoners to US courts.

In 1994, the death penalty could at least be claimed as policy in the overwhelming majority, if not totality, of states. The Clinton administration's promotion of capital prosecution could perhaps be defended as effective electoral politics. Now, with the death penalty abolished in 18 states, that consensus is over.

Whether the federal government will even have a mechanism for eventually executing Tsarnaev is now in a matter of debate. The last time a terrorist bomber was executed was McVeigh, killed by lethal injection in Indiana in June 2001. At his execution, news reporters noted tears streaming from one otherwise immobile eye as the court-approved three-drug poison regimen pumped through his veins. Those tears caught the attention of a Columbia University anesthesiologist named Dr. Mark Heath; from operating-room experience Heath recognized it not as a sign of emotion but as a classic scientific indication that the pain-masking sedative in the federal government's killing cocktail was wearing off, with McVeigh still paralyzed but now in unspeakable agony. From McVeigh's teardrop and Heath's diagnosis flowed 14 years of medical journal and law-review articles, lawsuits, and worldwide alarm about the procurement of drugs for America's lethal injections. International pressure led drug companies to refuse to supply state corrections departments with the cocktail's ingredients. During the Tsarnaev trial, the lethal-injection debate reached the Supreme Court, with a fractious and macabre argument among the justices over whether the injection of substitute death-row cocktails, improvised from shadowy suppliers, amount to cruel and unusual punishment.

It should be clear by now that the federal death penalty, far from reflecting social consensus or meaningful deterrence, is entirely political in nature-designed to sell the capital punishment back to states that clearly rejected it, and to inoculate Democratic and Republican presidents alike in the country's most ardently pro-execution regions. But the criminal-justice culture war has turned around. In a new libertarian wave, Congress, the president, and state legislatures are variously ratcheting down the drug war, reversing three-strikes criminal laws and trying desperately to empty overcrowded, expensive, and dangerously ill-functioning prisons. In 1994, Bill Clinton Democrats played the federal-death-penalty card to retain their hold in divided states. But since then six states, including four that today have Republican governors-New Jersey, New Mexico, Maryland, and Illinois-have since turned back from the death penalty.

It's a different time. Three of Hillary Rodham Clinton's Democratic rivals-Chafee, Maryland's former governor Martin O'Malley and Vermont Senator Bernie Sanders-are death-penalty opponents. Chaffee, who four years ago had taken that principled stand against federal prosecutors, and O'Malley, who as governor abolished capital punishment in Maryland, made statements of respect for the Boston jury, but made clear their determination to stay the abolitionist course. Sooner or later the federal death penalty will be a Democratic campaign issue, and Hillary Clinton will be challenged on her views.

While Boston Mayor Marty Walsh and Governor Charlie Baker both expressed hope that the verdict would bring, in Baker's words, "some kind of closure," they, like the rest of Boston, kept their responses low-key. They understood that this verdict is not one that most people in their city and state would seek. They clearly did not want to be part of any national cheering section. And while closure may be what politicians are expected to seek, there's no evidence the federal death penalty-or any capital punishment law-provides it. For Boston Tsarnaev's federal death sentence can only prolong the agony, keeping the bomber front and center for years to come. In the words of Bill and Denise Richard, whose son was killed and daughter maimed in the Marathon bombing, "As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours."

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What's Wrong With the Federal Death Penalty

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There was little surprise in a federal jury's voting death for Boston Marathon bomber Dzhokhar Tsarnaev, and little ground for sympathy to be found in the record of the defendant himself beyond his sheer youth.

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State by State: Death Penalty Laws | BillMoyers.com

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See where each U.S. state draws the line on capital punishment.

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Should states be allowed to circumvent federal law (Roe v Wade) by creating laws such as the “heartbeat” laws?  

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Should states be allowed to circumvent federal law (Roe v Wade) by creating laws such as the “heartbeat” laws?  

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In spring 2019, a seemingly new legislative phenomenon caught national attention as it stormed through statehouses across the country. Bills that imposed new restrictions banning abortion as soon as a fetal heartbeat is detected sparked protests but sailed to passage in a half-dozen states.

For many who first learned about the so-called heartbeat bills in national headlines, the push seemed unprecedented. But it was the outcome of nearly 10 years of calculated effort, starting with a sample bill written in Ohio that was then copied over and over - like a viral internet post - and proposed 26 times before it finally gained traction, a USA TODAY/Arizona Republic analysis has found.

That analysis found efforts to limit abortion in a variety of ways have succeeded through the same copy-and-paste strategy, also known as "model" or "copycat" legislation ¹. From 2010 to 2018, more than 400 abortion-related bills that were introduced in 41 states were substantially copied from model bills written by special-interest groups. The bills, among other things, required women to receive ultrasounds before an abortion procedure, imposed stricter licensing requirements on abortion clinics, and established a waiting period before abortions can be performed. States passed 69 of them into law.

The most copying of fill-in-the-blank legislation occurred in states that this year moved to effectively ban abortion when a fetal heartbeat is detected or in nearly all cases - Alabama, Georgia, Kentucky, Louisiana, Mississippi, Missouri and Ohio. Those seven states accounted for more than one-third of the copying of special interests' anti-abortion model legislation during the period analyzed by USA TODAY and The Arizona Republic.

Alexa Kolbi-Molinas, a senior staff attorney with the American Civil Liberties Union ², which is challenging in court some of the heartbeat laws, called the volume of copycat abortion bills introduced nationwide "stunning."

"This is all part of an orchestrated national strategy to push abortion out of reach for people," she said, noting the copycat bills were introduced during a period when more than 400 abortion restrictions were enacted across the country.

While many of the states that have passed heartbeat bills have long been active in their anti-abortion efforts, lawmakers and legal experts say the passage of heartbeat bills in multiple states this year is a reaction to two recent developments, in particular: President Donald Trump's appointment of two conservative justices to the U.S. Supreme Court and passage of abortion-rights laws in Vermont and New York.

Also, heartbeat bills represent the next logical step for lawmakers who've experienced a decade of success enacting restrictions on abortion by using copycat bills.

But the heartbeat bills are controversial because they ban abortion as early as six weeks after gestation, a point when women may not yet realize they are pregnant.

The heartbeat bills have faced immediate court challenge, so none has gone into effect. But they have already provided a potentialpath to challenge the U.S. Supreme Court's 1973 Roe v. Wade decision that legalized abortion nationwide.

A two-year investigation by USA TODAY, The Arizona Republic and the Center for Public Integrity found copycat bills amount to the nation's largest, unreported special-interest campaign, supplanting in some states the traditional approach of writing legislation from scratch.

Lawmakers allied with anti-abortion groups and the groups themselves say there is nothing inherently wrong with using copycat legislation if it addresses real problems in their particular states.

"The value of model legislation is that it typically has been well-researched, is grounded in constitutional research," said Cathi Herrod, president of the Center for Arizona Policy ³, a nonprofit advocacy group that has had a hand in crafting several anti-abortion measures in Arizona, including at least seven copycat bills since 2010.

She added, "I can't think of any time we've looked at a model proposal that we've taken verbatim. Virtually all model legislation has to be adapted to your state."

More than a dozen states have introduced or considered legislation restricting abortion in 2019.

Most attention has focused on the so-called heartbeat bills that ban abortion after a fetal heartbeat is detected, which can be as soon as six weeks after gestation. Those bills are based on model legislation created by an Ohio-based group called Faith2Action.

Activist and Faith2Action founder Janet Folger Porter ⁴ said she was frustrated with other conservatives' slower-developing strategy to effectivelyban abortion by focusing on incremental legislation. So she crafted heartbeat legislation at her northeast Ohio home during a women's sleepover party. God "put this idea in my heart," she said at the time.

"When I started it, there were those who said it was impossible," Porter recently told The Cincinnati Enquirer. "But the state of Ohio motto says, 'With God, all things are possible.'"

The first year it was introduced, in 2011, Porter's organization sent heart-shaped balloons to the Ohio statehouse to urge legislators to vote for the measure. Two pregnant woman were brought to committee hearings to have theirunborn children "testify" via ultrasound exam. Porter got supporters to flood lawmakers' offices with calls and emails.

Ohio's Senate declined to vote on the bill the first year over concerns it would be found unconstitutional.

Rachel Sussman, national director of state policy and advocacy at Planned Parenthood Federation of America ⁵, called Faith2Action "a radical fringe group" seeking to ban all abortions. As a result of the group's work, state legislators are now pushing this "extreme agenda," in a coordinated effort to ban abortion across the country, Sussman said in a statement.

"These politicians are dismantling our rights and freedoms in the process," she said.

The model bills have succeeded despite public polling that a majority of American adults believe abortion should be legal in all or most cases.

Six in 10 adults surveyed in 2018 said abortion should be legal in all or most cases, according to the Pew Research Center, with the partisan divide over abortion wider than it was two decades ago.

Though the bill died in Ohio's Senate, the copying of it was just beginning. Over the next two years, versions were introduced in a number of states, including Minnesota, Mississippi, Ohio and Texas.

In 2013, Arkansas and North Dakota became the first states to pass heartbeat bans, which were immediately blocked by court challenges and declared unconstitutional. Iowa became the third state in 2018, but that law was also blocked and declared unconstitutional. Heartbeat bills have now been introduced in about two dozen states in all.

This year, the momentum continued as anti-abortion lawmakers responded to changes on the Supreme Court as well as efforts to loosen abortion restrictions.

Heartbeat bills passed in Missouri, Kentucky, Mississippi, Ohio, Georgia and Louisiana. An Alabama law goes further, banning abortions at any stage of the pregnancy unless the mother's physical or mental health is in jeopardy.

Heartbeat bills have been the most controversial abortion-related bills of recent years, but they're not the only copy-and-paste legislation on the issue.

The Washington, D.C.-based public-interest law firm Americans United for Life ⁶ has for the past decade been the nation's most prolific author of copycat abortion legislation.

The reason: It's a full-service operation.

The group has 10 attorneys who work full-time or on contract for the advocacy group, writing legislation that lawmakers can adapt to their states. They also make their attorneys available for consultation. When debate begins, they furnish witnesses, such as doctors and law professors, to testify on behalf of the bills. After anti-abortion laws based on Americans United for Life have passed, they assisted state attorneys general in defending them against court challenges by filing amicus briefs. The group also ranks each state annually for the strength of its abortion restrictions.

A group of conservative Catholics founded the organization in 1971, and initially the group was involved in the debate surrounding abortion. In 1975, it reorganized into a legal organization and created a legal defense fund.

Americans United for Life lists as one of its early victories its involvement in a 1980 U.S. Supreme Court case that upheld the Hyde Amendment, ⁷ which prohibits federal funding of abortion in most cases.

Americans United for Life then took its legal strategy to the states, working with lawmakers on legislation to restrict abortion.

The group's influence and public profile began to grow in 2011 under the leadership of then-President and CEO Charmaine Yoest, who worked in the White House Presidential Personnel Office during President Ronald Reagan's administration and was senior adviser on Mike Huckabee's 2008 presidential campaign.

The group received national attention in 2012 after it issued a controversial report titled " The Case for Investigating Planned Parenthood."

The group publishes a "pro-life playbook" called Defending Life to guide lawmakers with model legislation and analysis. The 2019 edition includes recommendations for each state, and guidelines that encourage states to prioritize legislation to defund abortion services. Americans United for Life offers lawmakers a menu of more than 50 model bills.

Each year, about 30 bills pass nationwide based on its models or with assistance from the group's attorneys, said Steven Aden, the group's chief legal officer and general counsel.

The majority of anti-abortion laws are enacted at the state level, the group says. Its website cautions that improperly worded legislation - even if it's well-intended - can make matters worse.

"Our model legislation enables legislators to easily introduce bills without needing to research and write the bills themselves," the group states on its website. This helps "ensure that their efforts will have the desired impact and withstand judicial scrutiny."

The USA TODAY/Arizona Republic analysis found Americans United for Life was behind the bulk of the more than 400 copycat abortion bills introduced in 41 states. The analysis compares known model legislation with bills introduced by lawmakers using a computer algorithm developed to detect similarities in language.

Aden said he isn't surprised by what the analysis found.

In 2018, the group provided model language or helped enact 19 new laws while defeating eight "anti-life measures," according to its annual report. That year, Arizona, Indiana and Idaho passed laws based on the group's copycat language that required complications of abortion be reported in abortion statistics.

They focus on states where lawmakers ask for help, Aden said.

"We try to be ladies and gentleman. We don't go where we're not invited."

Mississippi Sen. Joey Fillingane ⁸ said he worked with Americans United for Life on legislation, adding, "they have a lot good attorneys."

Fillingane introduced the group's Child Protection Act three years in a row, beginning in 2010. The bills, which didn't pass in those years in Mississippi, sought to place additional reporting requirements on doctors who perform abortions on minors.

This year, as a committee chairman, Fillingane advanced Mississippi's heartbeat bill by presenting it for discussion to the Senate Public Health and Welfare Committee.

A Mississippi state senator, Michael Watson ⁹, is among the nation's most prolific sponsors of abortion-related model bill legislation.

The Republican proposed nine abortion-related bills over the eight-year period analyzed by USA TODAY/Arizona Republic. The bills ranged from banning the use of public funds for abortion or family planning to heartbeat bills.

He sourced language from eight Americans United for Life models, and he repeatedly used terms from a single Faith2Action model: the heartbeat bill.

A USA TODAY analysis of copycat legislation published in April found Watson is one of the top sponsors of model bills on other topics, too, with a total of 56 model bills.Watson acknowledged in an interview earlier this year that he uses model bills.

"We go down to our attorneys in Legislative Services, and say, 'Here are the issues I want to cover. I know several other states have done this, so there's some kind of boilerplate language out there. Let's pull in the good pieces and put some legislation together,'" Watson said.

Arizona has largely avoided national attention when it comes to abortion legislation this year.

The only abortion bill from Republicans in 2019 was a measure that would have provided $2.5 million for a pilot program that could fund crisis pregnancy centers. It failed in the Senate.

But the state is among the most prolific in the country when it comes to passing abortion restrictions. Americans United for Life in January named Arizona No. 1 for "legal protections for human life from conception to natural death."

The USA TODAY/Republic analysis found Arizona lawmakers had introduced 36 abortion-related bills since 2010 that were based on model legislation, trailing only Missouri, Alabama and Mississippi.

The conservative Center for Arizona Policy advocated for many of Arizona's abortion bills. The nonprofit group's strategy has been to propose incremental restrictions on abortion.

In 2011, Planned Parenthood halted abortion services at several rural clinics because it couldn't find physicians that met new requirements in legislation backed by the center. The center was also behind a controversial 2012 law prohibiting most abortions after 20 weeks of pregnancy. The law was challenged in court and declared unconstitutional in 2014.

More recently, a 2018 law that requires doctors to report complications related to abortion was based on an Americans United for Life model called the Abortion Reporting Act.

Arizona hasn't had a heartbeat bill introduced to date.

Herrod, the president of the Center for Arizona Policy, said her organization has not worked with Faith2Action, the group behind the heartbeat bills. She declined to say whether her group is interested in crafting similar legislation in Arizona.

"I have a standard policy that I don't discuss strategy and future steps with the media, no offense," she said.

She added the Center for Arizona Policy is committed to protecting human life from the very beginning to the natural end. "Where that leads as far as legislation in the future, we will see," she said.

The architect of the heartbeat bill is optimistic about its chances to overturn Roe v. Wade. But its recent success has highlighted a rift among anti-abortion groups over strategy.

Faith2Action tells supporters on its website that with the confirmation of Brett Kavanaugh to the nation's highest court, "experts now agree we have the votes to uphold the HeartBeat bill on the United State Supreme Court." The group predicts that "even more pro-life judges will likely be appointed" in coming years.

Porter, president of Faith2Action, did not respond to requests for comment. But she told The Guardian newspaper in April that heartbeat legislation is "an easy thing for the Supreme Court to embrace. All they have to do is move the marker from the unscientific marker to the scientific marker of heartbeat, which is inches away from our goal of when our lives begin at conception."

But Faith2Action appears to be an outlier among the anti-abortion organizations pushing copycat bills across the country.

Americans United for Life hasn't written a model heartbeat bill. Aden, the group's chief legal officer, said that's because from a strategic perspective, "we don't think the court is quite ready for that."

$1 for 6 months.

While Aden said he celebrates the passion of heartbeat bill supporters, the courts have struck down every one of those bills.

"I just wonder sometimes, I hope that they won't be too discouraged when the federal courts weigh in on some of these bills," he said.
Center for Public Integrity reporter Rui Kaneya, Arizona Republic reporter Rob O'Dell, Cincinnati Enquirer reporter Jessie Balmert and USA TODAY reporter Doug Stanglin contributed to this story. Reach the reporter at anne.ryman@arizonarepublic.com or 602-444-8072. Follow her on Twitter @anneryman.

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For anti-abortion activists, success of 'heartbeat' bills was 10 years in the making

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In spring 2019, a seemingly new legislative phenomenon caught national attention as it stormed through statehouses across the country. Bills that imposed new restrictions banning abortion as soon as a fetal heartbeat is detected sparked protests but sailed to passage in a half-dozen states.

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Courts say anti-abortion ‘heartbeat bills’ are unconstitutional. So why do they keep coming? | CNN

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As often as they are introduced, these bills get stymied. They are held up in committees, rejected in legislative votes, vetoed by governors and struck down in courts. Not one state has managed to put a heartbeat bill into lasting practice. But there is a strategy.

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Georgia Gov. Brian Kemp in early May signed into law a so-called "heartbeat" bill, banning abortion as early as six weeks into pregnancy. Georgia is the fourth state to pass such a law this year alone.

The bills prohibit abortion once a fetal heartbeat can be detected. But reproductive rights advocates and doctors say the laws, which prohibit abortion before many women know they are pregnant, amount to a near-total ban on the procedure.

"It's basically a forced pregnancy bill. It's a health care ban bill," said Dr. Krystal Redman, the executive director of Spark Reproductive Justice Now, a group that works on reproductive rights and other issues for women of color and queer and trans people in the South.

The bill also includes a penalty for those who perform abortions of up to 10 years in prison. It doesn't explicitly exempt women who perform their own abortions with drugs, leading to speculation about whether they would also be subject to criminal charges. Some have suggested that it could even lead to murder charges for women who have abortions - but other experts say the consequences are far from clear.

No heartbeat bills have yet gone into effect, and all have or are likely to be challenged in court. In May, for instance, a federal court blocked such a law in Mississippi. And on Friday, the American Civil Liberties Union and other groups challenged the Georgia law.

Whatever happens in the courts, the rise of heartbeat bills in 2019 is a sign of where the abortion debate is today. A few years ago, such bans were considered too extreme even by some anti-abortion groups, said Rachel Sussman, the national director of state policy and advocacy at Planned Parenthood Action Fund.

But with Donald Trump in the White House and Justice Brett Kavanaugh on the Supreme Court, abortion opponents around the country are eager to challenge Roe v. Wade. And banning abortion just six weeks into pregnancy may be a way to do that.

Heartbeat bills ban abortion very early in pregnancy

Heartbeat bills around the country are based on model legislation written by Faith2Action, which bills itself as "the nation's largest network of pro-family groups."

"While not the beginning of life, the heartbeat is the universally recognized indicator of life," the group states in an FAQ on its website. (Faith2Action has not responded to Vox's requests for comment.)

The model legislation says that if a patient is seeking an abortion, the doctor must use "standard medical practice" to determine whether the fetus has a heartbeat. If a heartbeat is present, the doctor is prohibited from performing an abortion, unless it is necessary to save the mother's life or "to prevent a serious risk of the substantial and irreversible impairment of a major bodily function."

The legislation does not include an exception for rape or incest. "No other law allows for the killing of an innocent child for the crime of his or her father," the Faith2Action FAQ states.

The bills do not cite a specific gestational time limit for abortions, which has led to some debate. Reproductive rights groups say the bills amount to a ban on abortion at about six weeks' gestation. That's when a doctor can detect "a flicker of cardiac motion" on a transvaginal ultrasound, according to Dr. Catherine Romanos, a doctor who performs abortions in Ohio and a fellow with the group Physicians for Reproductive Health.

Six weeks' gestation is just shortly after most pregnant women miss their first period, meaning many women don't know they are pregnant at this stage.

Some reproductive rights groups argue that the term "heartbeat" bill is a misnomer, since the fetus does not yet have a heart at six weeks' gestation - the cardiac activity detectable at that time comes from tissue called the fetal pole, as OB-GYN Jen Gunter has written. Planned Parenthood refers to the bills as six-week bans.

Meanwhile, some supporters of the bills argue that they might allow abortion slightly later in pregnancy than six weeks. The Ohio heartbeat bill, signed into law in April, does not specifically require a transvaginal ultrasound, said Jamieson Gordon, director of communications and marketing at Ohio Right to Life. Some doctors, she said, might choose to perform an abdominal ultrasound instead, and such a test cannot detect a heartbeat until around eight to 12 weeks' gestation.

In Ohio, the precise requirements for determining the presence of a heartbeat will be up to the Ohio Department of Health. But, said Romanos, the law, which is slated to take effect later this year if not challenged by the court, will likely ban nearly all abortions in the state.

"There will a small minority of people who know their body really well" and immediately recognize they are pregnant who will be able to get an abortion under the new law, Romanos said. They will also need to be able to travel to a clinic and get together the money for the procedure within the time allowed. The law carves out an exception if a patient's life is in danger, but not for a pregnancy resulting from rape or incest.

In all other cases, abortion will be illegal in Ohio. "It'll be really devastating to people," Romanos said. "It's patient abandonment."

The recently signed Georgia law does include exceptions for rape and incest, as well as for medical emergencies. But the law will hurt patients in Georgia, which has some of the highest rates of maternal mortality in the country, said Redman, the Spark Reproductive Justice Now executive director.

"People are dying because of the maternal health here in Georgia," she said. "The fact that we're eliminating a health care option, a service, will do a disservice to Georgians," especially black, queer, and low-income people who are disproportionately likely to seek abortion care.

Unlike other Georgia laws, the bill doesn't include language explicitly exempting women who terminate their own pregnancies from the penalties meant to apply to doctors. Elizabeth Nash, senior state issues manager at the Guttmacher Institute, said it wasn't clear if women would ultimately be prosecuted. Legal challenges if the ban is implemented in January 2020 will determine the reach of the bill, she said.

"[The bill] was set up thinking you would have some sort of physician person, either providing a pregnant person with medicine or some medication or doing surgical abortions," she said. "It doesn't seem to take into account necessarily what happens if the patient self-manages an abortion."

Some have suggested even bigger ramifications: Because the bill gives "full legal recognition" to "unborn children," Mark Joseph Stern wrote for Slate, the law could allow women who terminate pregnancies to be charged with murder.

Nash said it may be too early to make these kinds of assumptions. "It seems to be a stretch to what's actually in the law and I'm really confused as to whether or not this would be possible," she said.

The bills have proliferated since Trump took office. Their backers are aiming at Roe v. Wade.

The first bill based on Faith2Action's model legislation was introduced in Ohio in 2011. It didn't pass. While similar laws successfully passed in North Dakota and Arkansas in 2013, heartbeat bills were not embraced by all anti-abortion groups.Ohio Right to Life was neutral on the issue until 2018, preferring to back less sweeping restrictions like a 20-week ban. "We are proponents of the incremental approach," Gordon said.

But since the election of Trump, who promised to appoint Supreme Court justices to overturn Roe v. Wade, anti-abortion groups have been backing more restrictive laws.

"State legislators around the country are taking signals from Trump being in the White House and Kavanaugh being on the court that being radical and pushing legislation that really puts lives and health at risk is something they should be pursuing," Sussman said.

"Heartbeat" bills began to proliferate at the state level last year, with Iowa passing its version in May.

And for Ohio Right to Life, the incremental approach had been so successful - the 20-week ban and a ban on a common second-trimester abortion method recently became law - that a heartbeat bill was now "the next incremental step," Gordon said. The group threw its support behind the bill in December.

Similar bills have passed in Kentucky and Mississippi in recent months. Louisiana Governor John Bel Edwards, a Democrat, signed his state's version in May.

The North Dakota, Arkansas, Iowa, Kentucky, and Mississippi bans have been blocked by courts, and Ohio's ban is being challenged. The Louisiana law is written so that it will only take effect if Mississippi wins the case over its law.

On Friday, the ACLU and its Georgia chapter, along with the Center for Reproductive Rights and Planned Parenthood, filed suit to challenge the Georgia law.

"This legislation is blatantly unconstitutional under nearly 50 years of U.S. Supreme Court precedent," said Sean J. Young, legal director of the ACLU of Georgia, in a statement. "Our lawsuit asks the court to block the law from taking effect on January 1, 2020."

But a court battle is precisely what some supporters of the bills are hoping for. Some legislators backing the heartbeat bills have said they see them as potential challenges to Roe v. Wade, the 1973 Supreme Court decision that prohibits states from banning abortion before a fetus can survive outside the womb. A heartbeat bill, whether it bans abortion at six or 12 weeks, falls well before that limit.

Sponsors of the Iowa law were explicit about their desire to challenge Roe. "The science and technology have significantly advanced since 1973," said Iowa state Rep. Shannon Lundgren, the floor manager of the bill, in 2018. "It is time for the Supreme Court to weigh in on the issue of life."

In Ohio, "we're just trying to pass pro-life legislation that will save lives," Gordon said, "but also if it ends up being a good vehicle to overturn Roe v. Wade, we would be thrilled about that as well."

Meanwhile, heartbeat bills may already be affecting patients, even though none have actually taken effect.

"I think people are already confused," Romanos said. "I worry that there are patients that heard about the bans passing and now just aren't seeking care that they otherwise would seek because they think abortion is illegal already."
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The "heartbeat" bills that could ban almost all abortions, explained

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Georgia Gov. Brian Kemp in early May signed into law a so-called "heartbeat" bill, banning abortion as early as six weeks into pregnancy. Georgia is the fourth state to pass such a law this year alone. The bills prohibit abortion once a fetal heartbeat can be detected.

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The latest stage of pregnancy at which a patient can obtain an abortion by state in 2022 varies from 6 weeks to no limit - if abortion is not banned altogether.

As of July 5, 2022, eight states have outright banned abortion, with exceptions for cases where the patient's physical health is threatened. Judges have temporarily blocked abortion bans enacted under "trigger laws" in Louisiana, Kentucky, and Utah, allowing patients to receive care for the moment.

Six states have trigger laws still yet to go into effect that will ban abortion.

Of the 43 states and the District of Columbia that have not banned abortions, 36 states restrict abortion at a certain point in pregnancy in some way, either defined in terms of weeks post-fertilization or weeks from the patient's last menstrual period.

Many other states also carve out exceptions for the physical and general health of the patient, fetal abnormalities, and rape or incest.

This map shows the latest point in pregnancy a patient can currently obtain an abortion in each state, according to data from the Guttmacher Institute.

Without Roe, 23 states have laws on the books that could outright ban or severely limit access to abortion, and 16 states and DC have passed laws that would explicitly protect the right to abortion.

Now that the Supreme Court has overturned Roe, it doesn't mean abortion is banned nationwide.

Instead, the issue of abortion is now in the jurisdiction of the states, as was the case before the Roe decision.

Every state has free reign to permit or restrict abortion access, and over 30 states have passed laws or decrees that spell out how they'd treat abortion in the absence of Roe, according to research from the Guttmacher Institute.

13 states have passed "trigger" laws that are explicitly designed to ban all or most abortions if Roe were struck down.

Nine states have passed post-Roe abortion restrictions, like "heartbeat" bills and first-trimester abortion bans, that have been blocked by courts but could go back into effect with a court order if Roe fell.

Another group of nine states still have their pre-Roe abortion bans, which are currently unenforceable, on the books.

Those laws, importantly, aren't automatically revived without Roe but have to be put back into effect by a state legislature or order from a state attorney general, Guttmacher told Insider in 2019.

And lawmakers in seven states have passed decrees, which do not hold the force of law, expressing their intent to ban abortion to the greatest extent possible if Roe falls.

Four states have also passed constitutional amendments establishing that there is no right to an abortion under the state's constitution.

On the other hand, 16 Democratic-controlled states and the District of Columbia have passed laws that ensure abortion will remain legal within their borders.

The number of abortion clinics varies significantly per state, and more have shut down in the South and Midwest over the last decade.

In the decades since Roe, individual states have enacted a slew of restrictions to make it as difficult as possible for abortion clinics to operate, such that several states only have one remaining clinic.

Targeted Restrictions on Abortion Providers, or TRAP laws, impose very specific regulations on clinics. Oftentimes, these restrictions are so expensive that the costs of implementing them cause many clinics to close down altogether.

These include requirements on the width of corridors, the size and equipment of procedure rooms, and mandating that clinics have admitting privileges at local hospitals, even though less than 0.5% of abortions result in complications.

Between 2014 and 2017, more clinics opened up in the Northeast and on the West Coast but shut down in the South and Midwest, which lost 9% and 6% of their clinics respectively, partly due to TRAP laws in some cases.

In 2017, 89% of US counties had no known abortion providers, with 38% of US women ages 15-44 living in those counties.

The Supreme Court struck down one of the most extreme TRAP laws, Texas' HB2, in a 5-3 vote in 2016. But despite that, over 20 states still have such laws on their books.

A closer look at the county level shows stark disparities in abortion access across the country. There are now 16 states where 95% of counties do not have an abortion clinic.

By causing clinics to close down, TRAP laws have the consequence of making patients travel further and further to get to a clinic, especially in states that require patients to make multiple trips to the clinic and undergo a 24-to-72-hour "waiting periods."

According to another study from the Guttmacher Institute, patients travel an average of 34 miles each way to access abortion, and one in five American women have to travel at least 50 miles to reach their closest abortion provider.

Here's how the phases of pregnancy and fetal development line up with abortion bans. The Second Trimester starts at week 14.

Shayanne Gal/Insider

Before Texas' successful six-week abortion ban, states made many attempts to restrict patients from getting abortions after a certain number of weeks - oftentimes before a woman even knows she's pregnant.

In 2019, the governors of Arkansas, Alabama, Georgia, Mississippi, Louisiana, Kentucky, Ohio, and Missouri signed bills to either severely restrict abortion with so-called "heartbeat bills" or, in Alabama's case, ban the procedure altogether.

Other states have tried to ban dilation & evacuation (D&E), the method commonly used to perform abortions after 14 weeks.

The surgical procedure is usually used in late-term miscarriages and abortions to remove the fetal tissue as safely as possible and accounts for less than 0.5% of all abortions.

Prohibiting D&E abortions is effectively a ban on all second-trimester abortions.

Most US adults still favor protecting the legal right to abortion.

While the last decade has seen a huge increase in state-level abortion restrictions, Americans as a whole haven't become more anti-abortion in the past 20 years, according to survey data from Pew Research Center.

As of 2022, 61% of adults say abortion should be legal in all or most cases, while 37% say it should be illegal in all or most cases. Those numbers are almost exactly the same as they were back in 1995.

A supermajority of Democrats support keeping abortion legal, while conservative Republicans favor making it illegal. Moderates are more split.

Abortion has long been a hot-button partisan issue, with support for the procedure in all or most cases being highest among liberal Democrats and lowest among conservative Republicans.

Just under a quarter of those who identify as conservative Republicans now believe abortion should be legal in all or most cases, according to Pew Research.

And while state legislatures have passed draconian abortion restrictions for the purpose of starting litigation they hoped would overturn Roe v. Wade, support for the landmark decision still remains high.

A number of polls conducted prior to the 2020 election by organizations including Quinnipiac University, ABC News/Washington Post, Fox News, and Kaiser Family Foundation, found that between 61% and 69% of Americans support Roe, with 24% to 28% saying they want the decision overturned, CNN reported in 2021.

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Features Abortion Roe v Wade

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7 maps and charts that show what could happen now that Roe v. Wade has been overturned

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The latest stage of pregnancy at which a patient can obtain an abortion by state in 2022 varies from 6 weeks to no limit - if abortion is not banned altogether. As of July 5, 2022, eight states have outright banned abortion, with exceptions for cases where the patient's physical health is threatened.

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Diversity is a mantra in modern America. Yet when it comes to hot-button public policies, Americans prefer procrustean conformity to state experimentation. Recently enacted state abortion laws are a case in point.

Georgia's "heartbeat" law, set to take effect next year, will prohibit most abortions once a physician detects a fetal heartbeat, which is typically discernible at about six weeks. Hence, the heartbeat law is expected to drastically reduce the number of abortions in Georgia.

The Illinois legislature, on the other hand, has declared abortion a "fundamental right" and removed sundry regulations on abortion clinics. Fundamental rights, according to the U.S. Supreme Court in Washington v. Glucksberg (1997), are "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty" such that "neither liberty nor justice would exist if they were sacrificed." Based on this state classification, the number of abortions in Illinois will likely rise.

Abortion proponents have called for a boycott of Georgia. Alyssa Milano and other Hollywood celebrities promise to stop filming in the state unless the heartbeat law is repealed. Abortion opponents, such as the Catholic League, have condemned the Illinois bill as "Hitlerian." Both sides expectantly wait for some branch of the national government to step in to overturn the laws with which they disagree. Liberals want the federal courts to toe the line on Roe v. Wade (1973) and Planned Parenthood v. Casey (1991), while many conservatives urge Congress to use its legislative powers pursuant to Section 5 of the 14th Amendment to outlaw all abortions.

Strong feelings are to be expected when one side sees abortion as a fundamental right and the other as murder. But under a proper understanding of our Constitution, one does not have to understand what makes an opponent tick or agree with his favored legislative approach on abortion or any other issue.

One of the benefits of living in a federal republic is the states' freedom to take a variety of approaches to difficult and controversial issues. As noted by Alexander Hamilton in Federalist No. 32, under our Constitution the states "retain all the rights of sovereignty which they before had and which were not by [the Constitution] exclusively delegated" to the federal government. Inasmuch as the states under the Treaty of Paris were separate and independent republics after winning independence, this residuary sovereignty is substantial.

The federal government's powers, as noted by James Madison in Federalist No. 45, "are few and defined." Moreover, Madison taught that these delegated powers "will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce." In contrast, "[t]he powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people."

The Constitution delegates no "abortion power" to the federal government and thus the regulation of abortions is clearly part of the residuary sovereignty of the states concerning the lives and liberties of the people.

As for the 14th Amendment, which was added to the Constitution in 1868, Justice William Rehnquist in his Roe dissent rightly noted that the amendment's ratifiers and "drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter." Instead, they simply sought to confer equal citizenship on black people to counteract efforts in some states to permanently render them second-class citizens.

We live in a divided country. Divisions and discord grow deeper when we demand national one-size-fits-all solutions to issues not expressly addressed in the Constitution. Bitterness will only grow when outsiders insist on meddling in the internal affairs of a state, whether seeking to protect life or resorting to hackneyed Hitler comparisons for legislators whose guiding principle is self-actualization.

By nationalizing political discourse on hot-button policy matters, Americans are losing the benefits of a federal system. According to the framers' design, we need only speak with a unified national voice on topics that affect the Union as a whole. Otherwise, the people of the states are left wide discretion to engage in policy experimentation and to govern themselves. Georgia and Illinois are doing just that within our historical constitutional design.

If we want to live together in peace, we should let the federal system work and not demand uniformity, which increases internal political tensions and rivalries.
William J. Watkins, Jr., is a research fellow at the Independent Institute and author of Crossroads for Liberty: Recovering the Anti-Federalist Values of America's First Constitution.

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Diversity is a mantra in modern America. Yet when it comes to hot-button public policies, Americans prefer procrustean conformity to state experimentation. Recently enacted state abortion laws are a case in point. Georgia's "heartbeat" law, set to take effect next year, will prohibit most abortions once a physician detects a fetal heartbeat, which is typically discernible at about six weeks.

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The Department of Justice has sued the state of Texas over a new law that bans abortions after about six weeks, before most people realize they are pregnant, all but halting the procedure in the country's second-largest state.

The lawsuit says the state enacted the law "in open defiance of the Constitution."

"The act is clearly unconstitutional under long-standing Supreme Court precedent," Attorney General Merrick Garland said during a news conference Thursday afternoon. "Those precedents hold, in the words of Planned Parenthood v. Casey, that 'regardless of whether exceptions are made for particular circumstances, a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.' "

The Justice Department is seeking a permanent injunction from a federal court in the Western District of Texas. But it's likely the U.S. Supreme Court will have the final word on the matter.

Garland noted the law deputizes private citizens "to serve as bounty hunters authorized to recover at least $10,000 per claim from individuals who facilitate a woman's exercise of her constitutional rights."

He pointed out the law has thus far had its intended effect.

"Because this statute makes it too risky for an abortion clinic to stay open, abortion providers have ceased providing services," he said. "This leaves women in Texas unable to exercise their constitutional rights and unable to obtain judicial review at the very moment they need it."

Experts said the Texas law is among the most strict in the nation, in part because it allows private citizens to sue anyone perceived to be helping patients obtain abortions and doesn't make exceptions for cases involving rape or incest. Several other GOP-led states have announced they are considering adopting similar measures.

The Justice Department case may be designed to slow some of that momentum. The attorney general said if the federal government and the courts didn't block the Texas law, other states could easily put other constitutional rights in jeopardy.

Texas Attorney General Ken Paxton tweeted that the administration "should focus on fixing the border crisis, Afghanistan, the economy and countless other disasters instead of meddling in state's sovereign rights."

The state's Republican governor, Greg Abbott, said he was confident Texas would prevail in court, according to a written statement.

The lawsuit follows heavy pressure from congressional Democrats, who have urged Garland to use the "full force" of the Justice Department.

"We urge you to take legal action up to and including the criminal prosecution of would-be vigilantes attempting to use the private right of action established by that blatantly unconstitutional law," wrote House Judiciary Chair Jerrold Nadler, D-N.Y., and 22 other Democrats.

Last week, the Supreme Court allowed the Texas law to go into effect over dissent from Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor. President Biden called the court's majority opinion "an unprecedented assault on a woman's constitutional rights under Roe v. Wade, which has been the law of the land for almost 50 years."

At an event Thursday, Vice President Harris said the administration and the Congress should work to codify Roe.

"We are heartened to see the Biden administration stepping in to take action to vindicate Texans' rights," said Helene Krasnoff, vice president, public policy litigation and law, for Planned Parenthood Federation of America.
Read the full lawsuit below:

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Justice Department Sues Texas Over New Abortion Ban

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The Department of Justice has sued the state of Texas over a new law that bans abortions after about six weeks, before most people realize they are pregnant, all but halting the procedure in the country's second-largest state. The lawsuit says the state enacted the law "in open defiance of the Constitution."

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Should states or the federal government have control over the election procedures in states.

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Introduction

Since the 2016 election cycle, the policy community has focused on what roles the federal government plays-or could play-in protecting U.S. elections from foreign interference. Recent reports suggest that attempts to interfere with the 2018 election cycle also are under way. Congress is responsible for overseeing the federal presence in campaigns and elections, both with respect to traditional policy challenges and new ones.

This report is intended to help Congress understand how the statutes and agencies it has created affect U.S. campaigns and elections. Currently, no single agency or statute provides overarching coordination. As this report shows, at least 22 congressional committees; 17 federal departments or independent agencies (plus the Intelligence Community and the federal judiciary); 9 federal statutes; and several constitutional provisions can affect the federal role in campaigns and elections.

As this report discusses

The federal role in campaigns and elections is limited, but can be extensive in those areas in which the federal government is involved. Congress has expanded the federal role in campaigns and elections in the past 50 years, particularly in campaign finance and voting rights.

Campaigns and elections are different things and are regulated differently. The federal government plays relatively little role in regulating campaigns, except for campaign finance. The federal government primarily supports states in administering elections.

Existing campaigns and elections policy primarily focuses on electioneering and voting. Topics such as issue advocacy or general attempts to influence public opinion are not necessarily regulated under federal law that covers campaigns and elections.

The Election Assistance Commission and Federal Election Commission are the only two agencies devoted solely to campaigns and elections. The Justice Department administers and enforces some elections statutes. Agencies such as the Department of Homeland Security are now more involved with elections than in the past. Several other agencies also play roles in campaigns and elections.

The following pages are based on CRS research of statutory references to campaigns and elections; legislative or other congressional activity; federal agency documents and websites; and media accounts. Citations appear throughout, including to other CRS products that provide additional detail. This report does not track legislation.

A Note on U.S. Code Citations

U.S. Code citations appear throughout this report. Title 52 citations reflect a 2014 "editorial reclassification" of federal election law. Some provisions noted in this report are now codified in Title 52 but were previously located in Titles 2 and 42 of the Code. As the Office of Law Revision Counsel (the House office that maintains the U.S. Code) explains, "No statutory text is altered by such editorial reclassification projects, other than necessary updates to references to reflect the reorganization. Relevant provisions are merely transferred from one place to another in the Code."

The report addresses those areas of law and public policy that most directly and routinely affect federal campaigns and elections. It does not attempt to cover every instance of federal involvement in this policy area. Other agencies or provisions in law or regulation that are not addressed here might be relevant in specific cases. For example, a campaign finance investigation might involve banking law, but because banking law typically is not a campaign finance policy or election administration matter in the United States, the report does not address it. The report also excludes agencies that Congress generally has prohibited from elections involvement, or in which involvement has merely been proposed. The Securities and Exchange Commission (SEC), for example, meets both criteria.

As another CRS report explains, "evaluating the authority of Congress to establish standardized election procedures would appear to require a consideration of a variety of different proposals and scenarios." This report does not provide such a legal or constitutional analysis. In practice, the federal and state governments share responsibility for administering, regulating, or supporting campaigns and elections in the United States.

Finally, in some cases, the federal government's activities and authorities change over time, or new information becomes available. This report will be updated in the future to reflect major developments or new information.

Two themes organize the analysis: categories and roles. Categories refer to six broad policy areas discussed in the following pages. These include

campaign finance;

election administration;

election security;

redistricting;

qualifications and contested elections; and

voting rights.

The report also briefly discusses other areas of law that can substantially affect campaigns, elections, or both. Roles refer to specific governmental responsibilities within the categories. These roles refer to what the federal government does to support, regulate, or fund aspects of U.S. campaigns or elections.

The Appendix at the end of this report lists the roles organized by category. For example, the Election Administration category includes the Voters-Registration role. Importantly, these categories and roles are not definitive, and not necessarily mutually exclusive. What one reader would characterize as Election Administration, another might view as more appropriately Voting Rights.

C ampaigns and elections are distinct concepts. This distinction affects the federal government's role in both. Practically and simply, campaigns are about persuading voters in an effort to win elections. Voters express their campaign preferences by casting ballots in elections. Except for campaign finance policy, U.S. campaigns are subject to relatively little regulation. Elections in the United States are highly regulated and primarily a state-level responsibility.

The Federal Government and Campaigns

There is no uniform standard for campaign conduct in the United States. Primarily, federal policy regulates how campaigns and related entities raise and spend money. Most regulation of campaign conduct rests in campaign finance law. This includes topics such as

permissible and prohibited sources of contributions and expenditures (including a broad prohibition on fundraising, spending, and certain campaign involvement by foreign nationals);

contribution limits;

permissible and prohibited uses of campaign funds;

public disclosure of contributions and expenditures; and

disclaimers required for political advertising.

Other areas of law and regulation sometimes affect campaigns, but do not specifically address campaign conduct. For example, state or local property law might govern disputes over campaign assets. In general, however, barring some other provision of federal, state, or local law (such as corporate law, or law prohibiting race-based discrimination), federal campaign finance policy is silent on topics such as

campaign management, including strategy, theme, and message;

field activities (e.g., get-out-the-vote [GOTV] efforts);

voter targeting;

strategic relationships among political committees and other organizations, provided that they do not violate prohibitions on coordination or result in prohibited in-kind contributions;

use of political consultants and vendors; and

commercial transactions, provided that they are at fair-market value.

Consequently, the federal government plays relatively little role in campaign conduct. As discussed below, the federal role in elections also is limited but far greater.

The federal role in elections is limited yet complicated. The Constitution and federalism limit the federal government's roles to specific tasks, many of which support states, territories, and localities. Within its purview, however, the federal government's duties can involve multiple statutes, agencies, and areas of public policy. Table 1 below provides a brief overview of the major functions performed by the federal government and by the states. The Appendix at the end of this report provides additional detail and cites relevant federal statutes.

Federal roles in elections include activities such as

providing Census Bureau data to the states to facilitate redistricting;

since 2002, providing some funding to states to upgrade election equipment;

facilitating voluntary information-sharing and "best practices" among states;

regulating campaign finance in federal elections;

prohibiting voter discrimination based on color, race, or language in U.S. elections;

facilitating access to absentee voting by members of the uniformed services and overseas civilians, and their families; and

assisting states with election security to respond to threats that are beyond normal state or local capabilities.

Most aspects of voting and administering elections are notably absent from this list because they fall to the states. In general, state and local government roles in elections include activities such as

managing and implementing all aspects of election administration and voting;

choosing voting methods and purchasing equipment;

determining voter eligibility and identification requirements, provided that they are consistent with federal law (e.g., do not discriminate based on race); and

securing election systems and polling places.

To summarize, states, territories, and local election jurisdictions (often counties) do most of the work of administering federal elections. They also retain most authority over how those elections are conducted. The federal government primarily supports state, territorial, and local election jurisdictions. The federal government also is responsible for ensuring that state, territorial, and local jurisdictions administer their elections consistent with federal law.

The Constitution and federal statutes establish the federal role in U.S. campaigns and elections. The following discussion addresses constitutional provisions; statutes that primarily regulate campaigns and elections; and, finally, statutes that can affect campaigns and elections but primarily address other policy issues. The Appendix at the end of this report provides citations to other areas of law that may be relevant in specific cases but are not otherwise addressed in the report.

The U.S. Constitution recognizes states' primary roles in election administration but also provides specific powers and responsibilities for the federal government.

Article I sets criteria for House and Senate elections. In addition, the Elections Clause assigns states with setting the "Times, Places and Manner" for House and Senate elections, but also permits Congress to "make or alter such Regulations," except for the "Places of chusing Senators." Article I requires a decennial census, the basis of congressional apportionment. Subsequent amendments (discussed below) affect some of these provisions. Article I also grants the House and Senate authority over "Judg[ing] the Elections" for each chamber.

Article II sets criteria for presidential elections. This includes allocating presidential electors among the states, permitting Congress to "determine the Time of chusing" presidential electors, and specifying that Congress may determine a nationwide date for presidential electors to cast ballots.

The Twelfth Amendment altered the original presidential and vice-presidential election process.

The Fourteenth Amendment contains the Equal Protection Clause (Section 1), the basis for some voting rights claims; and specifies the method for House apportionment (Section 2).

The Fifteenth Amendment prohibits race-based disenfranchisement.

The Nineteenth Amendment prohibits sex-based disenfranchisement.

The Twenty-third Amendment provides electoral college votes to the District of Columbia.

The Twenty-fourth Amendment prohibits poll taxes in federal elections.

The Twenty-sixth Amendment, ratified in 1971 amid controversy over the Vietnam War draft, grants 18-year-olds voting rights.

At least nine major statutes substantially affect the federal role in U.S. campaigns and elections. This section provides brief highlights of each, and cites other CRS products that contain additional detail.

Federal Election Campaign Act

established limits on sources and amounts of campaign contributions;

mandated public reporting ("disclosure") requirements to document financial transactions; and

created the Federal Election Commission as the nation's civil campaign finance enforcement agency.

Congress enacted the most significant amendment to FECA to date in 2002, via the Bipartisan Campaign Reform Act (BCRA). Among other provisions, the act

banned national parties, federal candidates, and officeholders from raising "soft money" in federal elections;

increased most contribution limits; and

placed additional restrictions on preelection issue advocacy known as "electioneering communications."

Major litigation affected interpretation of these statutes and of some others discussed in this report. Other CRS products contain additional information.

Help America Vote Act

authorized payments to help states improve election administration, and to replace punchcard and lever voting machines;

required states to establish statewide voter registration databases, provide polling-place access to disabled voters, and provide provisional ballots to voters whose eligibility is unclear, among other requirements;

transferred the Federal Election Commission's previous election administration functions to a new independent agency, the Election Assistance Commission (EAC);

required the EAC to disburse the federal payments to states;

charged the EAC with conducting research on election administration and developing voluntary voting system guidelines (VVSG) for election equipment, and with accrediting testing laboratories and certifying election equipment;

generally prohibited the EAC from engaging in rulemaking;

established working relationships between the EAC and several other governmental and nongovernmental entities, including through a Standards Board and Board of Advisors (which includes representatives from various federal agencies), and a Technical Guidelines Development Committee (TGDC) to review the VVSG and provide input on election "best practices";

provided the Justice Department with enforcement authority; and

expanded protections for military and overseas voters' access to election information and absentee ballots.

National Voter Registration Act

requiring states to provide voter-registration materials at certain governmental agencies, such as motor-vehicle and social service agencies;

requiring states to accept registration applications by mail using a federal form;

restricting removing voters from registration lists (e.g., "purging") in certain circumstances, and regulating some practices that states may use to maintain their registration lists;

permitting voters who have moved within voting jurisdictions to correct an address at the polling place or a central location (the "fail-safe" provisions); and

requiring states to designate a chief state election official for purposes of the act (and which is sometimes cross-referenced in other law or legislation that affects states).

Parts of the act also interact with provisions found in the Uniformed and Overseas Citizens Absentee Voting Act and the Voting Rights Act, both of which are discussed below. The Justice Department is responsible for civil NVRA enforcement.

Uniformed and Overseas Citizens Absentee Voting Act

Congress has enacted laws to help members of the military vote since the Civil War. Current provisions, which also cover overseas civilians, appear in the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). Congress most recently substantially amended UOCAVA in 2009, when it included provisions in stand-alone measure , the Military and Overseas Voter Empowerment (MOVE) Act in the FY2010 National Defense Authorization Act (NDAA). In brief, the current statute

applies to eligible members of the U.S. military and of some other "uniformed services," who are serving away from their residence for voting purposes, and to their spouses and dependents, and to overseas civilians;

encourages or requires states to make registration and voting easier for military voters, overseas citizens, or both, such as through accepting single absentee-ballot requests for multiple elections, accepting a federal write-in absentee ballot (FWAB), accepting registrations and ballots without notarization, and processing UOCAVA absentee ballots expeditiously; and

through HAVA amendments to UOCAVA, directs the Secretary of Defense to conduct outreach concerning military voting and to provide registration and voting assistance to servicemembers.

The Justice Department is responsible for civil enforcement of some UOCAVA provisions.

Electoral Count Act

Congress enacted the Electoral Count Act in 1887. This statute, as amended, and the Twelfth Amendment to the U.S. Constitution, establish a timeline and procedures for electoral college action, and for the joint session of Congress that convenes to certify the electoral college results.

Federal Contested Elections Act

For more than 50 years, nowhere has the federal government been more involved in election administration than with protecting voting rights. Enactment of modern federal law to protect access to registration and the ballot followed more than a century of national struggle on politics and race. More recently, Congress has enacted federal law designed to make registering to vote, and being able to cast ballots, easier for those who are blind, disabled, or elderly.

Americans with Disabilities Act

Voting Accessibility for the Elderly and Handicapped Act

Congress enacted the Voting Accessibility for the Elderly and Handicapped Act (VAEHA) in 1984. VAEHA generally requires states to

make polling places and registration locations accessible to disabled or elderly voters, or to provide an alternate voting method; and

provide registration and voting aids for disabled or elderly voters.

The Justice Department enforces these provisions.

Voting Rights Act

Congress originally enacted the Voting Rights Act (VRA) in 1965, at the height of the civil rights movement and amid violent voter suppression in some states. Congress extended or expanded the VRA several times between 1970 and 2006. The 2013 Supreme Court decision in Shelby County v. Holder substantially affected the two sections of the VRA, although the case explicitly addressed only one. Specifically, in Shelby County, the Court invalidated Section 4(b) of the VRA. This section of the act contained a coverage formula that identified jurisdictions within states, and some entire states, that had previously engaged in discrimination or contained minority-language populations that Congress determined warranted additional federal voting protections. Under Section 5 of the act, the U.S. Attorney General or the U.S. District Court for the District of Columbia had to approve in advance ("preclear") voting changes (e.g., changes in polling places) in those jurisdictions. Although the Court did not invalidate Section 5, it is inoperable now that Section 4(b) has been invalidated.

Currently, among other provisions, the VRA

prohibits states and other jurisdictions ("political subdivisions") from using race- or color-based qualifications, standards, or practices in registration, voting, or redistricting;

prohibits previous tools used to disenfranchise voters, such as poll taxes or literacy tests;

permits voting assistance and promotes polling place access for elderly and disabled voters;

permits the Justice Department to monitor elections to protect voting rights; and

requires the U.S. Census Bureau to conduct post-election surveys about voter registration and participation by age, race, and national origin in covered jurisdictions.

At least four other areas of law also can affect campaigns, elections, or both.

Various criminal provisions apply to prohibited election conduct. Some of these provisions are codified in laws cited elsewhere in this report; some appear in Title 18 of the U.S. Code. The Justice Department investigates and enforces these provisions, and some civil ones related to elections. Title 18 also provides the U.S. Secret Service with authority for protecting major presidential candidates. Among other criminal provisions related to campaigns and elections, federal law prohibits

intimidation, threats, and coercion in voter registration, voter assistance, or voting;

fraudulent voter registration and election tabulation;

using government authority to interfere with the nomination process or election results;

foreign nationals (except permanent resident aliens) from making campaign contributions or expenditures;

noncitizen ("alien") voting in federal elections;

coercion of political activity in federal employment; and

generally, a military role in elections.

Federal tax law, housed in the Internal Revenue Code (IRC; Title 26 of the U.S. Code), has three major implications for campaign finance policy. First, the IRC contains statutory provisions that authorize the presidential public financing program. Second, the IRC establishes the limited circumstances under which political campaigns, parties, and political action committees are subject to taxation. Third, the IRC requires that politically active tax-exempt social welfare groups, labor unions, and trade associations not primarily be engaged in campaign intervention.

Most regulation of political advertising appears in campaign finance law. Some provisions also appear in telecommunications statutes. In particular, the "lowest unit charge" (sometimes also called the "lowest unit rate") provision in telecommunications law permits candidates to purchase preemptible broadcast advertising at the most favorable rates provided to commercial advertisers for the same class of time (e.g., length and time of day). Telecommunications law also requires broadcasters to maintain a "political file" (sometimes also called the "public file") of candidate requests for advertising purchases.

Homeland security and cybersecurity statutes provide authority for the Department of Homeland Security's, the Intelligence Community's, and federal law enforcement agencies' involvement in elections, but do not directly address campaigns or elections. The 2017 critical infrastructure designation discussed in the "Department of Homeland Security" section of this report and in other CRS products has established new elections roles for the agency.

Additional provisions appear in the Appendix at the end of this report.

As discussed below, Congress affects elections-and vice versa-in several respects. In addition to Members being candidates themselves, Representatives and Senators

legislate in and oversee policy areas ranging from those that are central to campaigns and elections, such as campaign finance or voting rights, to those that affect campaigns and elections in some cases, such as cybersecurity;

appropriate federal funds to support election administration; and

execute constitutional duties related to elections, including counting electoral college ballots in presidential elections, and considering contested elections.

Members of congressional leadership also influence, formally or informally, appointments to the Election Assistance Commission, Federal Election Commission, and other agencies involved in campaigns and elections. The Senate provides advice and consent as required by statute or the Constitution.

Table 2 provides a brief overview of these and other duties.

At least 22 congressional committees potentially have roles in overseeing or appropriating funds for the federal role in U.S. campaigns and elections, as shown in Table 3.

The Committee on House Administration and Senate Committee on Rules and Administration exercise primary jurisdiction over federal elections. They also are the primary oversight committees for the Election Assistance Commission (EAC) and the Federal Election Commission (FEC). Both committees also have jurisdiction over election contests within their respective chambers. They also provide guidance, along with the House and Senate Ethics Committees, on how chamber rules might affect Member and staff actions (e.g., franking) regarding campaigns and elections.

In recent years, Congress has appropriated funds for the EAC and FEC through the Financial Services and General Government (FSGG) portions of omnibus appropriations laws.

Other policy matters related to campaigns, elections, or both sometimes arise in other committees' legislative, oversight, or appropriations work. Table 3 contains a brief sample.

This section briefly summarizes federal agencies that are substantially involved in regulating or supporting U.S. campaigns or federal elections. This report does not attempt to provide a detailed discussion of these roles, nor does it address issues beyond these agencies' elections responsibilities. Other agencies not addressed here might be relevant in specific circumstances. The discussion is divided into two sections: those agencies whose primary duties concern campaigns or elections; and those that primarily serve other policy areas, but that also have secondary elections duties. Table 4 provides a brief overview; more detailed discussion follows the table.

Election Assistance Commission

Congress established the Election Assistance Commission (EAC) in 2002, when it enacted the Help America Vote Act (HAVA). The EAC is the sole federal agency devoted to election administration. Major EAC functions include the following:

The agency coordinates best-practice information with states and provides voluntary certification of election equipment.

Congress tasked the EAC with distributing HAVA federal funding.

EAC commissioners serve on the Election Infrastructure Subsector Government Coordinating Council (EIS GCC). The EIS GCC coordinates information-sharing with other federal agencies; with state, territorial, and local election administrators; and with other subsectors. Additional information appears in the "Department of Homeland Security" section of this report.

HAVA generally prohibits the EAC from engaging in rulemaking.

Federal Election Commission

The Federal Election Commission (FEC) is the only federal agency with a significant regulatory role affecting political campaigns. Among other duties, the FEC

enforces civil aspects of federal campaign finance law;

administers disclosure of federal campaign finance reports;

administers the presidential public financing program for candidates who choose to participate; and

provides compliance guidance to regulated parties (e.g., candidates) and the public.

Department of Commerce

Decennial census data produced by the Department of Commerce's (DOC's) Census Bureau are the basis for congressional apportionment and redistricting.

The Census Bureau conducts post-election surveys about voter registration and participation as required by the Voting Rights Act.

DOC's National Institutes of Standards and Technology (NIST) provides technical assistance to other agencies involved in elections. In particular, this includes advising on the EAC's Voluntary Voting System Guidelines (VVSG) and consulting with the Defense Department's Federal Voting Assistance Program regarding topics such as cybersecurity and electronic ballot transmission.

The NIST director chairs the EAC's Technical Guidelines Development Committee (TGDC), which assists the EAC with development of the VVSG, and provides other technical guidance to the commission.

Department of Defense

Federal law and American political culture generally limits military involvement in federal elections.

The Defense Department's (DOD's) primary role in U.S. elections concerns facilitating ballot access for military servicemembers. DOD's Federal Voting Assistance Program (FVAP) administers UOCAVA. As noted previously, UOCAVA is designed to ensure that members of the uniformed services and overseas civilians have timely access to federal ballots. Mail to military personnel can be handled by the U.S. Postal Service (USPS; discussed below) and by the DOD's Military Postal Service Agency (MPSA).

The FVAP director serves on the EAC's Board of Advisors.

In some cases, DOD entities are involved in countering foreign threats to U.S. elections, such as through contributions to the Intelligence Community or other coordination with federal agencies (e.g., the State Department, as noted below). Some National Guard units have assisted states with election cybersecurity. Congress has authorized DOD to include elections cybersecurity vulnerabilities in exercises, in consultation with DHS and if states agree to participate.

Department of Health and Human Services

Some of the HAVA funding discussed in the " Help America Vote Act" section above was designated for improving voting access for disabled people, and for "protection and advocacy" payments to support voting among disabled Americans. Congress assigned the Department of Health and Human Services (HHS) with distributing those funds.

Department of Homeland Security

The Department of Homeland Security's (DHS's) role in elections has grown significantly in recent years. DHS's most substantial involvement in elections stems from Secretary Jeh Johnson's January 2017 decision to designate U.S. elections infrastructure as "critical infrastructure."

The designation applies to databases and information technology (IT) systems that support voter registration and election management, and to polling places and early voting locations. It does not directly affect political campaigns, parties, etc.

In general, the designation prioritizes DHS support for election jurisdictions. This includes information-sharing on threats; monitoring election systems; conducting vulnerability assessments; and assistance identifying or responding to threats (e.g., cyberattacks).

DHS serves as the "Sector-Specific Agency" (SSA) for the Elections Infrastructure Subsector (EIS) within the Government Facilities Sector. As SSA, DHS coordinates information-sharing among various governmental and nongovernmental entities (e.g., vendors) responsible for election administration. In this role, DHS also coordinates activities for the EIS Government Coordinating Council (GCC). The EIS GCC includes representatives from DHS, EAC, and state and local governments. DHS can also assist a Sector Coordinating Council (SCC), which consists of industry representatives (e.g., voting-machine manufacturers).

The critical infrastructure designation does not give DHS regulatory authority over federal elections.

Through an Election Task Force, DHS coordinates information-sharing and other work across the federal government supporting elections.

Department of Justice

The Justice Department (DOJ) investigates and enforces aspects of federal law, including those concerning election crimes. Among other roles in federal elections, DOJ is responsible for the following:

DOJ investigates and enforces various aspects of election law, such as campaign finance criminal provisions, alleged vote fraud or intimidation, and civil aspects of HAVA, UOCAVA and the VRA.

HAVA requires that DOJ representatives be among the EAC's Board of Advisors.

Under an Obama Administration executive order, the department may work with the State Department and Department of the Treasury to administer sanctions responding to election interference.

The Federal Bureau of Investigation (FBI), an agency within DOJ, may investigate alleged violations of campaign finance or elections laws, and other federal statutes.

As noted in the "Intelligence Community" section of this report, the FBI contributed to an Intelligence Community Assessment that found evidence of foreign efforts to influence the 2016 federal elections.

Department of Labor

Annual financial reports filed with the Labor Department include certain union "political activities." These can include funds spent to support or oppose candidates among union members and their families. Similar information must be reported separately to the FEC.

Department of State

The State Department supports overseas civilian access to absentee ballots through UOCAVA, although FVAP (DOD) administers the program.

The department's Global Engagement Center (GEC) is charged with coordinating government efforts to counter foreign propaganda and disinformation efforts aimed at undermining U.S. national security interests. GEC partners with other U.S. government agencies, including those within the State Department, at the Defense Department, and elsewhere.

Under an Obama Administration executive order, the department may work with the Department of the Treasury and Justice Department to administer sanctions responding to election interference.

Department of the Treasury

The Department of the Treasury houses the Internal Revenue Service (IRS), which collects taxpayer designations for the Presidential Election Campaign Fund (PECF). The PECF provides public financing for presidential candidates who choose to receive funds under certain conditions. The FEC administers candidate participation in the program.

Department of the Treasury agencies might also be involved in investigations of prohibited foreign influence in U.S. elections, such as through the Financial Crimes Reporting Network (FinCEN).

The department may work with the Justice Department and State Department to administer sanctions responding to election interference.

Federal Communications Commission

As noted elsewhere in this report, political advertising regulation rests in campaign finance law administered by the Federal Election Commission, and criminally enforced by the Justice Department. The Federal Communications Commission (FCC) administers aspects of telecommunications law that permit candidates to purchase preemptible broadcast advertising and that require broadcasters to maintain publicly available files of requests for advertising purchases.

Intelligence Community

National Archives and Records Administration

Office of Personnel Management

The VRA authorizes the Office of Personnel Management (OPM) to deploy federal election observers where ordered by a federal court or directed by the U.S. Attorney General. DOJ has determined that the 2013 Shelby County decision limits some of these provisions.

U.S. Access Board

U.S. Commission on Civil Rights

U.S. Postal Service

Election administrators and political campaigns (and parties, etc.) rely on the U.S. Postal Service (USPS) to transmit election mail and political mail. The former includes election-administration materials, such as absentee ballots, polling-place notices, etc. The latter refers to mailings advocating for political candidates, parties, etc. As noted previously, mail to military personnel can be handled by the USPS and by the MPSA (DOD).

Courts do not play policymaking or implementation roles in U.S. campaigns and elections. The judiciary's role is therefore largely beyond the scope of this report, as are legal issues. It is important to note, however, that courts can substantially affect interpretation of the statutes discussed above, and review agency implementation of those statutes. Federal law also assigns election-related duties to courts in specific cases, as noted briefly below.

Federal statutes provide expedited judicial review of complaints arising from some campaign finance and elections matters.

Particularly on constitutional questions, which are especially prominent in areas such as protected political speech, judicial interpretation shapes the policy options available to Congress.

The VRA permits federal courts to order the presence of federal election monitors or observers to protect against voting rights violations.

Federal courts sometimes adjudicate elections disputes, such as contested election results or oversight of redistricting plans.

Frequent election-related litigation and the increasing frequency of legal specialties devoted to campaign finance and elections suggest that the courts will continue to play important roles in shaping federal regulation of campaigns and elections.

Conclusion

The federal presence in campaigns and elections does not necessarily mean federal power. The preceding pages confirm that the federal government does relatively little to actually administer elections. Where the federal government is involved, however, its presence can be extensive. Historically, the federal government has emphasized domestic campaigns and elections concerns. These include topics such as transparent campaign financing, protecting voting rights, and providing states funding to upgrade election equipment. New challenges, such as threats from foreign actors and through cyberattacks, suggest that the federal government's role in campaigns and elections is increasingly complex and interdisciplinary.

Currently, no single agency or statute provides overarching coordination for the federal presence in campaigns and elections. Only two small independent agencies-the EAC for election administration and the FEC for campaign finance-are devoted solely to campaigns and elections policy. Agencies such as DHS can bring security expertise to elections, but are not elections specialists, as are the EAC, FEC, or parts of DOJ. For some, greater coordination across statutes and agencies might be beneficial, while others likely will respond that the existing system is based on deliberately unique statutes and agency expertise.

Currently, regulating campaigns and elections depends on a clear connection to defeating or electing candidates, or to voting for or against those candidates. This report generally does not address some topics-such as issue advocacy or foreign propaganda-not because they are unimportant, but because Congress has chosen primarily to regulate them outside of campaigns and elections statutes. Congress could choose to broaden the kinds of conduct that are subject to regulation in campaign finance or election law in the future. If it does so, one or more of the statutes and agencies discussed in this report likely would be affected.

Appendix. Overview of Major Governmental Roles in U.S. Campaigns and Elections

Campaign Finance

Federal law governs contribution amounts and sources, and sets disclosure and disclaimer requirements, for federal campaigns.

Department of Justice (DOJ); FEC may make referrals

U.S. Constitution: 1 st Amdt.; Election law (FECA): 52 U.S.C. §§30101-30146; Criminal law: 18 U.S.C. §§594-607, 610

Other federal law/agencies relevant in some cases (e.g., tax, banking matters)

Election Administration

Ballots-providing absentee

Federal law mandates availability of absentee ballots to overseas civilians and military voters in federal elections.

Federal Voting Assistance Program (FVAP, Department of Defense);

enforcement: DOJ

Criminal law: 18 U.S.C. §608;

Election law (UOCAVA): 52 U.S.C. §§20301-20311

Election Administration

Election administration-general

Some federal agencies provide limited coordination of "best practices"

U.S. Election Assistance Commission (EAC)

U.S. Constitution: Art. I, §4, cl. 1 (time, place, and manner) and Art. II, §4, cl. 1 (presidential electors);

Election law (Help America Vote Act; HAVA): 52 U.S.C. §§20901-21145

Related topics appear throughout the table. Functional responsibility for most election administration rests with states.

Election Administration

Military-prohibitions on "troops at the polls," use of military in voter coercion, or coercing participation in military voting

Federal law prohibits military presence at polling places and military interference with elections.

Election law (originally, for example, 13 Stat. 437 [1865]); now codified with VRA): 52 U.S.C. §10102

Criminal law: 18 U.S.C. §§592, 593, 596, 608

Some states have assigned National Guard units to duties such as cybersecurity support for state election officials.

Election Administration

Voters-uniformed (including military) and civilian overseas

Federal law mandates availability of absentee ballots to overseas civilians and military voters in federal elections.

Federal Voting Assistance Program (FVAP, DOD); enforcement: DOJ

Election Administration

Voting equipment-selecting

Federal law places certain conditions on states accepting HAVA grant funds for purchasing election equipment (e.g., required replacement of punchcard or lever machines).

EAC; Department of Commerce (DOC), National Institutes of Standards and Technology (NIST)

Election law (HAVA): 52 U.S.C. §§20901-21145

EAC and NIST share certification duties.

Election Security

Provides grant funding for states to upgrade election equipment, and provides voluntary equipment certification and testing

EAC; DOC, NIST; DHS; Office of the Director of National Intelligence (ODNI); other Intelligence Community (IC) agencies

Criminal aspects: DOJ, FBI

EAC provides grants and disseminates "best practice" information; DHS provides consultations and incident-response if invited; DHS responsible for "critical infrastructure" designation; Intelligence Community (IC) agencies can provide information on foreign interference.

Cybersecurity and law enforcement statutes that do not specifically address elections are also relevant.

Election Security

Voting equipment-security

Federal law provides (or has provided) grants for equipment meeting certain security criteria; federal government offers voluntary testing/certification for equipment

EAC; DOC, NIST; DHS; ODNI; IC agencies

Criminal aspects: DOJ, FBI

Election law (HAVA grants): 52 U.S.C. §20971

EAC and NIST share certification duties. HAVA assigned the General Services Administration (GSA) with distributing grants under Title I of the act before the EAC was fully operational.

See also Election systems and voting equipment-cybersecurity.

Cybersecurity and law enforcement statutes that do not specifically address elections are also relevant.

Qualifications and Contested Elections

Contested federal elections

Federal [see Notes to right]

The U.S. Constitution and federal law provide each chamber of Congress authority over deciding its own elections.

Congressional elections: U.S. Constitution, Art. 1, §5;

Presidential elections: U.S. Constitution, Art. 1I, §1; 12 th Amdt.; 3 U.S.C. §5

House contests: Federal Contested Elections Act (FCEA): 2 U.S.C. §§381-396;

Presidential contests: Electoral Counting Act (3 U.S.C. §§5; 15)

Primary federal responsibility at left refers to final disposition. State law also might be relevant.

Redistricting

Reapportionment

U.S. Constitution and federal law specify decennial census data as basis for apportionment and redistricting

U.S. Constitution: Art. I; 14 th Amdt.; 2 U.S.C. §2; 13 U.S.C. §141 VRA: 52 U.S.C. §§10101-10702

Redistricting

Redistricting

U.S. Constitution and federal law specify decennial census data as basis for apportionment and redistricting

U.S. Constitution: Art. I; 14 th Amdt.; 2 U.S.C. §2; 13 U.S.C. §141; VRA: 52 U.S.C. §§10101-10702

Voting Rights

Voter eligibility

U.S. Constitution or federal law prohibit voting restrictions based on sex, race, language, or age if over 18 years

Enforcement: DOJ

Participation research: DOC, Census Bureau

U.S. Constitution: Art. I and 14 th, 15 th, 19 th, 24 th, and 26 th Amdts.; VRA: 52 U.S.C. §§10101-10702

Voting Rights

Voters-disabled access to registration and the polls

Federal law permits voting assistance for elderly, disabled, blind, or illiterate voters; requires accessibility in certain registration and polling places; and authorizes funding for improving access to polling places and providing accessible voting machines

Americans with Disabilities Act (ADA): 42 U.S.C. §§12101-12213; Voting Accessibility for the Elderly and Handicapped Act (VAEHA): 52 U.S.C. §§20101-20107;

VRA: 52 U.S.C. §§10101-10702;

HAVA: 52 U.S.C. U.S.C.

§§20901-21145

The ADA does not appear to specifically address elections, but the ADA and accompanying regulations require accommodation in public services. See the " Americans with Disabilities Act" section for additional discussion.

Voting Rights

Voting-discriminatory practices

U.S. Constitution or federal law prohibit voting restrictions based on sex, race, language, or age if over 18 years

Enforcement: DOJ

Participation research: DOC, Census Bureau

U.S. Constitution: Art. I and 14 th, 15 th, 19 th, 24 th, and 26 th Amdts.; VRA: 52 U.S.C. §§10101-10702

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Federal Role in U.S. Campaigns and Elections: An Overview

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Since the 2016 election cycle, the policy community has focused on what roles the federal government plays-or could play-in protecting U.S. elections from foreign interference. Recent reports suggest that attempts to interfere with the 2018 election cycle also are under way.

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WASHINGTON (AP) - WHAT IS THE ROLE OF THE FEDERAL GOVERNMENT IN ELECTIONS?

The federal government has very little role in the elections that choose who is going to run it. Elections are run at the local level and supervised by states. The federal government can help fund elections and set certain standards - such as the requirement that people can register to vote when getting drivers' licenses - through federal law. And of course Washington, D.C., plays a big role in monitoring foreign actors to make sure they don't interfere in elections. But the actual machinery of democracy is run at the state and local level.

States devise the rules of their own elections. Some send everyone a ballot through the mail, others only allow people over age 65 to use that method of voting. The administering of the polls, printing of the ballots and counting of the vote usually occurs on the county level. The state tabulates the counties' totals and declares winners of statewide races, including the presidential contest, and assigns presidential electors accordingly.

The federal government can monitor and ensure that all candidates for federal office are reporting their campaign contributions and expenditures publicly, as required under federal law. It can act to ensure that voters are not deprived of their civil rights. It has in the past sent money to help local elections offices, including $400 million in the CARES Act in March to help with shifts in voting during the pandemic. But the federal government has no role in the operation of polling places or the counting of ballots.

__

This is a new series from the AP dedicated to answering commonly asked questions from our audience about the 2020 U.S. presidential election.

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Does the federal government have a role in the vote?

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WASHINGTON (AP) - WHAT IS THE ROLE OF THE FEDERAL GOVERNMENT IN ELECTIONS? The federal government has very little role in the elections that choose who is going to run it. Elections are run at the local level and supervised by states.

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Can The Federal Government Stop States’ Restrictive Voting Laws?

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NPR’s Audie Cornish talks with Rick Hasen, book author and law professor at the University of California, Irvine, about steps the federal government could take to counter restrictive voting laws.

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Exceptions to Voter Identification Requirements

Most states with strict voter identification requirements make some exceptions. These exceptions may include people who:

Have religious objections to being photographed (Indiana, Kansas, Mississippi, South Carolina, Tennessee, Texas, Wisconsin)

Are indigent (Indiana, Tennessee)

"Have a reasonable impediment" to getting an ID (South Carolina)

Do not have an ID as a result of a recent natural disaster (Texas)

People who are victims of domestic abuse, sexual assault or stalking and have a "confidential listing" (Wisconsin)

Additionally, voter ID requirements generally apply to in-person voting, not to absentee ballots or mailed ballots.

All voters, regardless of the type of verification required by the states, are subject to perjury charges if they vote under false pretenses.

PLEASE NOTE: The information provided below and throughout this webpage should be used for general informational purposes and not as a legal reference. If you have questions regarding the voter ID requirements in your state, please contact your local election administrator.
The box allows you to conduct a full text search or type the state name.

Vote a provisional ballot or vote a regular ballot if s/he is identified by two election officials as an eligible voter on the poll list, and both election workers sign a sworn affidavit so stating.

If voting a provisional ballot, the voter has until 5:00PM on the Friday after the election to bring the required ID

An election official may waive the identification requirement if the election official knows the identity of the voter. A voter who cannot exhibit a required form of identification shall be allowed to vote a questioned ballot.

Valid Arizona driver's license

Valid Arizona non-driver identification

Tribal enrollment card or other form of tribal identification

Valid U.S. federal, state or local government issued identification

Utility bill dated within 90 days of the election

Bank or credit union statement dated within 90 days of the election

Valid Arizona vehicle registration

Indian census card

Property tax statement

Vehicle insurance card

Recorder's certificate

An elector who does not provide the required identification shall receive a provisional ballot. Provisional ballots are counted only if the elector provides identification to the county recorder by 5 p.m. on the fifth business day after a general election that includes an election for federal office, or by 5 p.m. on the third business day after any other election.

A voter shall verify registration by presenting a document or identification card that:

Documents and identification cards that comply with the requirements include without limitation:

A document or identification card may be presented in a digital format on an electronic device if it complies with other requirements and has been approved or issues by the U.S., the state of Arkansas or an accredited post-secondary educational institution.

§1-1-104(19.5) and 1-7-110
NOTE: Since the passage of HB 1303 in 2013, most CO voters now vote by mail. However, at least one location is open on Election Day for in-person voting, and the ID requirement spelled out here applies to those voters.

Colorado driver's license

Colorado Dept. of Revenue ID card

U.S. passport

Employee ID card with photo issued by the -U.S. government, Colorado state government, or political subdivision of Colorado

Pilot's license

U.S. military ID with photo

Copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the elector

Medicare or Medicaid card

Certified copy of birth certificate

Certified documentation of naturalization

An eligible elector who is unable to produce identification may cast a provisional ballot.

The designated election official shall attempt to verify that an elector who cast a provisional ballot is eligible to vote. The designated election official or designee shall complete the preliminary verification of the elector's eligibility to vote before the ballot is counted. (§1-8.5-105)

Social Security card

Any other preprinted form of identification which shows the elector's name and either the elector's address, signature or photograph

Elector shall, on a form prescribed by the secretary of the state, write the elector's residential address and date of birth, print the elector's name and sign a statement under penalty of false statement that the elector is the elector whose name appears on the official checklist.

Photo ID

Utility bill

Paycheck

Any government document with voter's name and address

In the event the voter does not have proof of identity with them, he or she shall sign an affidavit of affirmation that he or she is the person listed on the election district record.

One of the following current and valid picture identifications:

Florida driver's license

Florida ID card issued by the Dept. of Highway Safety and Motor Vehicles

U.S. passport

Debit or credit card

Military identification

Student identification

Retirement center identification

Neighborhood association ID

Public assistance identification

Veteran health identification card issued by the United States Department of Veterans Affairs

A license to carry a concealed weapon or firearm

Employee identification card issued by any branch, department, agency, or entity of the Federal Government, the state, a county, or a municipality.

If the picture identification does not contain the signature of the elector, an additional identification that provides the elector's signature shall be required.

A voter without one of the acceptable forms of photo identification can vote on a provisional ballot. He or she will have up to three days after the election to present appropriate photo identification at the county registrar's office in order for the provisional ballot to be counted.

Acceptable types of ID are not specified by law. Hawaii's office of elections provides this information: "Forms of acceptable identification include a valid photo ID (Drivers License, State ID, etc), a copy of a current utility bill, bank statement, paycheck, or other government issued document that shows your name and address."

If the voter has no identification, the voter will be asked to recite his/her date of birth and residence address to corroborate the information provided in the poll book.

A voter may complete an affidavit in lieu of the personal identification. The affidavit shall be on a form prescribed by the secretary of state and shall require the voter to provide the voter's name and address. The voter shall sign the affidavit. Any person who knowingly provides false, erroneous or inaccurate information on such affidavit shall be guilty of a felony.

Voters who are unable or decline to produce proof of identification may vote a provisional ballot. The ballot is counted only if (1) the voter returns to the election board by noon on the Monday after the election and: (A) produces proof of identification; or (B) executes an affidavit stating that the voter cannot obtain proof of identification, because the voter: (i) is indigent; or (ii) has a religious objection to being photographed; and (2) the voter has not been challenged or required to vote a provisional ballot for any other reason.

Note: The Secretary of State's Office is required to provide a voter identification card to all active registered voters who do not have one of the five forms of identification at the time of passage of the bill (HB 516 in 2017). Going forward, county auditors will be required to issue voter identification cards to newly registered voters who do not possess a valid form of ID, as prescribed by the Secretary of State's Office.

In 2018, voters will be asked for ID and anyone who does not have necessary ID will be asked to sign an oath verifying their identity, and will be allowed to cast a regular ballot.

In 2019, voters without the necessary ID will be offered a provisional ballot and can provide ID up until the time of the county canvass of votes (Monday after election day).

A person who is registered to vote but is unable to present a form of identification listed may present any of the following:

a. A current voter identification card that contains the voter identification number if the voter identification card is signed before the voter presents the card to the election official.

b. Other forms of identification sufficient to establish identity and residence dates, or describe terms of residency current to, within forty-five days prior to presentation:

(a) Residential lease.

(b) Property tax statement.

(c) Utility bill.

(d) Bank statement.

(e) Paycheck.

(f) Government check.

(g) Other government document.

A person who is registered to vote but is unable to present a form of identification listed above, may establish identity and residency in the precinct by written oath of a person who is also registered to vote in the precinct. The attesting registered voter's oath shall attest to the stated identity of the person wishing to vote and that the person is a current resident of the precinct. The oath must be signed by the attesting registered voter in the presence of the appropriate precinct election official. A registered voter who has signed two oaths on election day attesting to a person's identity and residency as provided in this subsection is prohibited from signing any further oaths as provided in this subsection on that day.

If a voter cannot meet any of the above options, the voter may cast a provisional ballot.

The following forms of identification are valid if they contain the name and photograph of the voter and have not expired. Expired documents are valid if the bearer is aged 65 or older.

A voter who is unable or refuses to provide current and valid identification may vote a provisional ballot.

To have his or her ballot counted, the voter must provide a valid form of identification to the county election officer in person or provide a copy by mail or electronic means before the meeting of the county board of canvassers.

Driver's license

Social Security card

When the officers of an election disagree as to the qualifications of a voter or if his right to vote is disputed by a challenger, the voter shall sign a written oath as to his qualifications before he is permitted to vote.

Louisiana driver's license

Louisiana special ID card

Military ID with photo

Other generally recognized picture identification

If the applicant does not have identification, s/he shall sign an affidavit to that effect before the commissioners, and the applicant shall provide further identification by presenting his current registration certificate, giving his date of birth or providing other information stated in the precinct register that is requested by the commissioners. However, an applicant that is allowed to vote without the picture identification required by this Paragraph is subject to challenge as provided in R.S. 18:565.

Michigan driver's license

Michigan personal identification card

A voter who does not possess either of the above may show any of the following, as long as they are current:

An individual who does not possess, or did not bring to the polls, photo ID, may sign an affidavit and vote a regular ballot.

Driver's license

Photo ID card issued by a branch, department, or entity of the State of Mississippi

United States passport

Government employee ID card

Firearms license

Student photo ID issued by an accredited Mississippi university, college or community/junior college

United States military ID

Tribal photo ID

Any other photo ID issued by any branch, department, agency or entity of the United States government or any state government

Mississippi Voter Identification Card

An individual without ID can cast an affidavit ballot which will be counted if the individual returns to the appropriate circuit clerk within five days after the election and shows government-issued photo ID.

Voters with a religious objection to being photographed may vote an affidavit ballot, which will be counted if the voter returns to the appropriate circuit clerk within five days after the election and executes an affidavit that the religious exemption applies.

Nonexpired Missouri driver's license;

Nonexpired or nonexpiring Missouri nondriver's license;

A nonexpired United States passport; or

Another photo ID issued by the United States or the state of Missouri which is either not expired or expired after the date of the most recent general election.

*If the driver or non-driver license has expired after the most recent general election, it is an acceptable form of voter ID.

If ID is not presented, the voter votes on a provisional ballot and must return that day before 7 p.m. to show ID. A provisional ballot is also counted if the signature on a voter's provisional ballot envelope is determined by a local election authority to match the signature on the voter's registration record.

Driver's license from New Hampshire or any other state, regardless of expiration date

Photo ID card issued by the NH director of motor vehicles

Voter ID card issued under R.S. 260:21

U.S. armed services photo ID card

U.S. passport, regardless of expiration date

Valid student ID card

Any other valid photo ID issued by federal, state, county or municipal government

Any other photo ID that is determined to be legitimate by the supervisors of the checklist, the moderator, or the town or city clerk, provided that if any person authorized to challenge a voter under RSA 659:27 objects to the use of such photo identification, the voter shall be required to execute a qualified voter affidavit as if no identification was presented.

Verification of the voter's identity by a moderator or supervisor of the checklist or clerk of a town, ward or city (not a ballot clerk). If any person authorized to challenge a voter does so under this provision, the voter shall be required to fill out a challenged voter affidavit before obtaining a ballot.

A person's identity may be verified by a moderator or supervisor of the checklist or the town or city clerk, but if any person authorized to challenge a voter under RSA 659:27 objects to such verification, the voter shall be required to execute a challenged voter affidavit.

If a voter does not have a valid photo identification, the ballot clerk shall inform the voter that he or she may execute a challenged voter affidavit. Unless the voter has a religious objection to having his or her photo taken, the moderator will take his or her photo and affix it to the affidavit.The voter may then cast a regular ballot.

By Jan. 10 in odd numbered years or within 90 days after any other election, the secretary of state is required to mail a nonforwardable letter to each voter who executed a challenged voter affidavit, notifying the person that a person who did not present valid photo identification voted using his or her name and address and instruct the person to return the letter within 90 days with a written confirmation that the person voted or to contact the attorney general immediately if he or she did not vote. Any such letters returned as undeliverable must be turned over to the attorney general, who shall investigate for voter fraud. Notice from any voter receiving such a letter that s/he did not vote is also forwarded to the attorney general for investigation. The secretary must also turn over to the attorney general a list of all voters who fail to respond to the letter to confirm that they voted.

North Carolina

§ 163A‑1145.1 NOTE: Implementation was to begin in 2020, though the law was struck down in 2021. An appeal is likely.

NOTE: Implementation was to begin in 2020, though the law was struck down in 2021. An appeal is likely.

Any of the following that is valid and unexpired, or has been expired for one year or less and contain a photo:

Any of the following, regardless of whether the ID contains an expiration or issuance date (with photo):

Military ID card

Veterans ID card

Any expired form of ID allowed in this subsection presented by a registered voter who is 65 or older, provided the ID was unexpired on the voter's 65th birthday

If a registered voter cannot produce the required ID, a provisional ballot is required. It is counted only if the voter brings an acceptable ID to the county board of elections no later than the day before the canvass. There are exceptions for a religious objection, a reasonable impediment, or natural disaster. In this case the voter has to fill out a Reasonable Impediment Declaration Form and affidavit. These are reviewed by the county board of elections and the provisional ballot is counted unless the county board has grounds to believe the affidavit is false. Reasonable impediments include: inability to obtain photo identification due to lack of transportation, disability or illness, lack of birth certificate or other underlying documents required, work schedule or family responsibilities; lost or stolen photo identification; photo identification applied for but not yet received by the registered voter voting in person; or other reasonable impediment. If the registered voter checks the "other reasonable impediment" box, a further brief written identification of the reasonable impediment shall be required, including the option to indicate that State or federal law prohibits listing the impediment.

Identification must provide:

Legal name

Current residential street address in North Dakota

Date of birth

A valid form of identification is:

Driver's license

ID card issues by the North Dakota department of transportation

ID issued by tribal government to a tribal member residing in the state

If an individual's valid form of ID does not include the required information or the information is not current, the identification must be supplemented by one of the following that provides the missing or outdated information:

If an individual is not able to show a valid form of identification but asserts qualifications as an elector in the precinct in which the individual desires to vote, the individual may mark a ballot that must be securely set aside in a sealed envelope designed by the secretary of state. After the ballot is set aside, the individual may show a valid form of identification to either a polling place election board member if the individual returns to the polling place before the polls close, or to an employee of the office of the election official responsible for the administration of the election before the meeting of the canvassing board occurring on the sixth day after the election. Each ballot set aside under this subsection must be presented to the members of the canvassing board for proper inclusion or exclusion from the tally.

The following forms of identification are valid for individuals living under special circumstances who do not possess a valid form of identification:

For an individual living in a long-term care facility, a long-term care certificate prescribed by the secretary of state and issued by a long-term care facility in this state;

For a uniformed service member or immediate family member temporarily stationed away from the individual's residence in this state, or a resident of the state temporarily living outside the country, a current military identification card or passport; and

For an individual living with a disability that prevents the individual from traveling away from the individual's home, the signature on an absentee or mail ballot application from another qualified elector who, by signing, certifies the applicant is a qualified elector.

Current and valid photo identification, defined as a document that shows the individual's name and current address, includes a photograph, includes an expiration date that has not passed, and was issued by the U.S. government or the state of Ohio

Current utility bill

Current bank statement

Current government check, paycheck or other government document

A voter who has but declines to provide identification may cast a provisional ballot upon providing a Social Security number or the last four digits of a Social Security number. A voter who has neither identification nor a Social Security number may execute an affidavit to that effect and vote a provisional ballot. A voter who declines to sign the affidavit may still vote a provisional ballot.

Voters who cast a provisional ballot because they did not provide acceptable proof of identity must appear in person at the board of elections to provide such proof within the 10 days immediately following Election Day. (see the Ohio secretary of state's FAQ on provisional voting)

"Proof of identity" shall mean a document that satisfies the following:

Shows a name that substantially conforms to the name in the precinct registry

Shows a photograph

Includes an expiration date that is after the date of the election

Was issued by the United States, state of Oklahoma, or a federally recognized Indian tribe or nation

A voter registration card issued by the appropriate county elections board may serve as proof of identity without meeting all of the above requirements.

A provisional ballot cast by a voter who declines or is unable to produce proof of identity shall only be considered verified and approved for counting if the voter's name, residence address, date of birth, and driver's license number or last four digits of Social Security number as provided on the affidavit match what is in the registration database.

A valid (unexpired or expired within the last 6 months) document showing a photo of the person to whom it was issued, including:

If the person claiming to be a registered and eligible voter is unable to provide proof of identity as required, the person shall be allowed to vote a provisional ballot pursuant to section 17-19-24.2. The local board shall determine the validity of the provisional ballot pursuant to section 17-19-24.3.

Summary of section 17-19-24.3: The local board shall examine each provisional ballot application to determine if the signature matches the signature on the voter's registration. If the signatures match, the provisional ballot shall count. If the signatures do not match, the ballot shall not count and shall be rejected as illegal.

Voters who have a reasonable impediment to obtaining photo ID may show a non-photo voter registration card in lieu of photo ID, sign an affidavit attesting to the impediment, and cast a provisional ballot.

From the State Election Commission's web site:

If you have a reasonable impediment to obtaining photo ID, you may vote a provisional ballot after showing your nonphoto voter registration card. A reasonable impediment is any valid reason, beyond your control, which created an obstacle to obtaining photo ID. Some examples include:

To vote under the reasonable impediment exception:

1. Present your current, nonphoto registration card at the polling place

2. Sign an affidavit stating why you could not obtain a photo ID

3. Cast a provisional ballot that will be counted unless the county election commission has reason to believe your affidavit is false.

If you do NOT have photo ID and do NOT have a reasonable impediment to obtaining one, or you simply forgot to bring it with you to the polls, you may still vote a provisional ballot. However, for your vote to be counted, you must provide one of the photo IDs to the county election commission prior to certification of the election (usually Thursday or Friday after the election).

If a voter is not able to present a form of personal identification as required, the voter may complete an affidavit in lieu of the personal identification. The affidavit shall require the voter to provide his or her name and address. The voter shall sign the affidavit under penalty of perjury.

If a voter is unable to present the proper evidence of identification, then the voter will be entitled to vote by provisional ballot in the manner detailed in the bill. The provisional ballot will only be counted if the voter provides the proper evidence of identification to the administrator of elections or the administrator's designee by the close of business on the second business day after the election.

However, "A voter who is indigent and unable to obtain proof of identification without payment of a fee or who has a religious objection to being photographed shall be required to execute an affidavit of identity on a form provided by the county election commission and then shall be allowed to vote." §2-7-112(f)

Election Code §63.001 et seq.

With the exception of the U.S. citizenship certificate, the identification must be current or have expired no more than four years before being presented for voter qualification at the polling place.

Voters who do not possess an acceptable form of photo ID and cannot obtain one of the forms of acceptable photo ID listed due to a reasonable impediment, may present a supporting form of ID and execute a Reasonable Impediment Declaration, noting the voter's reasonable impediment to obtaining an acceptable form of ID.

Supporting forms of ID that can be presented if the voter does not possess one of the forms of acceptable photo ID and cannot obtain one due to a reasonable impediment:

After presenting a supporting form of ID, the voter must execute a Reasonable Impediment Declaration.

If a voter possesses an acceptable form of photo ID but does not have it at the polling place, the voter will still be permitted to vote provisionally. The voter will have six (6) days to present an acceptable form of photo identification to the county voter registrar or the voter's ballot will be rejected.

Voters with a disability who do not have an acceptable form of photo ID may also apply with the county voter registrar for a permanent exemption.

Voters who have a consistent religious objection to being photographed and voters who do not present any form of acceptable photo identification as a result of certain natural disasters as declared by the President of the United States or the Texas Governor, may vote a provisional ballot, appear at the voter registrar's office within six (6) calendar days after election day, and sign an affidavit swearing to the religious objection or natural disaster, in order for your ballot to be counted.

OR

Two forms of ID that bear the name of the voter and provide evidence that the voter resides in the precinct

Except for first time voters covered by HAVA, any voter who does not show one of the forms of ID specified shall be allowed to vote a regular ballot after signing a statement under penalty of perjury verifying their identity. A voter who does not show ID or sign a statement shall be offered a provisional ballot.

Washington

§29A.40.160(7)

NOTE: Most Washington voters now vote by mail. However, county auditors are required to open at least one vote center where voters can cast a ballot in person, and the ID requirement spelled out here applies to those voters.

The county auditor shall require any person desiring to vote at a voting center to either sign a ballot declaration (generally in locations where ballots are scanned) or provide identification (generally in counties where voting is done electronically, although even in these counties the auditor can verify a voter's signature to a signature on record).

If identification is used it must be valid photo identification, such as:

West Virginia driver's license or ID car

Valid driver's license issued by another state

U.S. Passport

Valid employee identification card with photo issued by the U.S. Government or state of West Virginia

Valid student identification card issued by an institution of higher education in West Virginia or high school in West Virginia

Valid military identification card with photo issued by the United States

Valid concealed carry permit with a photograph

Valid Medicare or Social Security card

Valid birth certificate

Valid voter registration card issued by a county clerk in the State of West Virginia

Valid hunting or fishing license issued by the State of West Virginia

Valid identification card issued by the West Virginia Supplemental Nutrition Assistance program (SNAP)

Valid identification card issued by the West Virginia Temporary Assistance for Needy Families program (TANF)

Valid West Virginia Medicaid card

Valid bank or debit card

Valid utility bill issued within six months of the date of the election

Valid bank statement issued within six months of the date of the election

Valid health insurance card

OR

In lieu of providing a valid identifying document, a registered voter may be accompanied at the polling place by an adult known to the registered voter for at least six months. That adult may sign an affidavit on a form provided to clerks and poll workers by the Secretary of State, which states under oath or affirmation that the adult has known the registered voter for at least six months, and that in fact the registered voter is the same person who is present for the purpose of voting. For the affidavit to be considered valid, the adult shall present a valid identifying document with his or her name, address, and photograph.

A poll worker may allow a voter, whom the poll worker has known for at least six months, to vote without presenting a valid identifying document.

All of the above must include a photo and a name that conforms to the poll list.

If the ID presented is not proof of residence, the elector shall also present proof of residence.

An elector who appears to vote at a polling place and does not have statutory ID shall be offered the opportunity to vote a provisional ballot.

An elector who votes a provisional ballot may furnish statutory ID to the election inspectors before the polls close or to the municipal clerk no later than 4pm on the Friday following Election Day.

Wyoming driver's license

Tribal identification card issued by the governing body of the Eastern Shoshone tribe of Wyoming, the Northern Arapaho tribe of Wyoming or other federally recognized Indian tribe

A Wyoming identification card

A valid United States passport

A United States military card

A driver's license or identification card issued by another state or US territory

Student ID card with a photograph issued by the University of Wyoming, a Wyoming community college or a Wyoming public school

A valid Medicare insurance card (until December 31, 2029)

A valid Medicaid insurance card (until December 31, 2029)

An elector who appears to vote at a polling place and does not have statutory ID shall be offered the opportunity to vote a provisional ballot.

An elector who votes a provisional ballot must furnish statutory ID to the county clerk by the close of business on the day following the election.

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Skip to main content Most states with strict voter identification requirements make some exceptions.

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States will not be allowed to cancel federally mandated standardized exams this school year despite the pandemic, though they will be offered significant flexibility in how they give those tests and how they're used, the U.S. Department of Education informed state education leaders Monday.

In a letter to states, the department said that it will not invite state requests for "blanket waivers of assessments" required by the Every Student Succeeds Act; states received such waivers last spring. However, the department said it would allow states to administer shorter versions of state exams in English/language arts, math, and science, or let states administer exams this summer or even into the next school year.

The Education Department also told states that it will allow them to seek waivers from federal requirements for school accountability, including the mandate to identify certain low-performing schools, for the 2020-21 school year. Such flexibility would include a waiver from the requirement that states test 95 percent of eligible students.

"It is urgent to understand the impact of COVID-19 on learning," Ian Rosenblum, acting assistant secretary in the office of elementary and secondary education, wrote to states. "We know, however, that some schools and school districts may face circumstances in which they are not able to safely administer statewide summative assessments this spring using their standard practices."

Rosenblum said states would still have to publicly report data by student subgroups, as required. He also specifically encouraged states to extend the testing window for English-language proficiency tests.

Rosenblum did not give a deadline for when states would have to seek flexibility from accountability or other requirements. However he also said the department recognized that "individual states may need additional assessment flexibility based on the specific circumstances." He added that in such cases, the department "will work with states to address their individual needs and conditions while ensuring the maximum available statewide data to inform the targeting of resources and supports."

Whether to let states cancel these exams has been a major question looming over the Biden administration. Leading Democrats for K-12 policy in Congress and others have said the tests are crucial to informing educators about how students have been affected by the pandemic. Yet teachers' unions and some Republicans are among those who have pushed for students and schools to be let off the hook when it comes to these exams. States like Michigan and New York have sought testing waivers from the department for this spring.

During his confirmation hearing, Miguel Cardona, President Joe Biden's nominee for education secretary, said that assessments are crucial to learning where students stand but did not take a firm position one way or the other on letting states cancel them. Before his nomination, Cardona, Connecticut's education commissioner, told his state last year that he planned to press forward with annual state exams. Cardona has not been confirmed by the Senate.

Last year, former U.S. Secretary of Education Betsy DeVos said her department would not grant blanket testing waivers for this year, although that position no longer mattered after President Joe Biden won the November election.

In response to Monday's news, American Federation of Teachers President Randi Weingarten called the decision not to grant waivers a "frustrating turn" of events.

"It misses a huge opportunity to really help our students by allowing the waiver of assessments and the substitution, instead, of locally developed, authentic assessments that could be used by educators and parents as a baseline for work this summer and next year," Weingarten said.

Becky Pringle, the president of the National Education Association, encouraged states to apply for the waivers being made available, but also disparaged the value of the state exams during the pandemic: "Standardized tests have never been valid or reliable measures of what students know and are able to do, and they are especially unreliable now."

Meanwhile, Carissa Moffat Miller, the CEO of the Council of Chief State School Officers, indicated support for the department's approach to assessments this year.

"We appreciate that the Department will provide flexibility on how to administer statewide assessments and modify accountability systems as state leaders manage the continuing effects of the global pandemic," she said. "In addition, we are pleased that the Department has committed to working with states that may need additional flexibilities."

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States Still Must Give Standardized Tests This Year, Biden Administration Announces

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States will not be allowed to cancel federally mandated standardized exams this school year despite the pandemic, though they will be offered significant flexibility in how they give those tests and how they're used, the U.S. Department of Education informed state education leaders Monday.

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Numerous vocal critics oppose No Child Left Behind. Criticism of NCLBA typically falls into three different categories. First, as with ESEA, critics charge that NCLBA causes the federal government to intrude too much into what has traditionally been the domain of the states. Second, opponents contend that NCLBA has resulted in unfunded federal mandates, which essentially passes financial problems from the federal government to state and local governments. Finally, detractors allege that the law places too much emphasis on standardized testing and stringent teacher qualifications.

Speaking on behalf of its members, the National Education Association (NEA) is an outspoken opponent of the law. The NEA argues that NCLBA requires stringent accountability, but does not provide adequate funding necessary for schools to meet those requirements. The NEA also claims that NCLBA punishes schools rather than providing assistance, and that it promotes privatization of education.

Education as Domain of the States; NCLBA as an Unfunded Federal Mandate

The United States Constitution strikes a balance between powers reserved for the federal government, and those given to the states. The Tenth Amendment provides, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The Supreme Court has established in rulings that the Constitution does not implicitly or explicitly delegate education matters to the federal government. In fact, in the landmark Brown v. Board of Education case from 1954, the Supreme Court recognized, "Education is perhaps the most important function of state and local governments." Nevertheless, the federal government has often involved itself in education policies without running afoul of the Constitution.

Congress is able to enact legislation over education because of another constitutional provision, the spending clause in Art. I, sec. 8, clause 1: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States...." Under the spending clause, if federal funds are merely an inducement to meet certain conditions, the federal government may intrude on an area normally reserved to the states.

The Supreme Court has held that Congress must meet certain requirements where it relies on the spending clause to enact legislation over which it has no specific authority. Such legislation must:

Not be prohibited by other constitutional provisions

Be in pursuit of the "general welfare"

Be related to the federal interest in particular national projects or programs

Be unambiguous in describing the conditions for the states' receipt of federal funds, to enable states to knowingly decide to participate or not

No Child Left Behind Act criticism comes from critics who charge that the law is unclear in describing what states must do to receive federal funds. Critics support this contention by referring to the Department of Education's massive efforts to clarify the act, as evidenced by regulations, guidance documents, and letters and other communication to various state and local officials.

Often related to the criticism that the federal government is interfering with the traditional domain of the states, some critics contend that No Child Left Behind has resulted in billions of dollars of unfunded mandates. In other words, the Congress has failed to provide the funding states need to meet mandates in the law. Supporters of the law argue that NCLBA does not present an unfunded mandate, because states are not required to adopt the federal program.

Emphasis on Standardized Testing

One recurring No Child Left Behind Act Criticism is that it forces teachers to "teach to the test" in order to get students to pass standardized tests. These critics say that a consequence of teaching to the test is that teacher creativity and student learning are stifled. Moreover, critics charge that it is unrealistic to expect learning disabled students and non-English speaking students to pass the test. Another criticism related to testing is that the law often leads to anomalous results.

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Criticism of No Child Left Behind - FindLaw

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Numerous vocal critics oppose No Child Left Behind. Criticism of NCLBA typically falls into three different categories. First, as with ESEA, critics charge that NCLBA causes the federal government to intrude too much into what has traditionally been the domain of the states.

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Many scholars have argued that US democracy has been slowly decaying, exemplified most recently by the election of Donald Trump. "Trump has openly derided many of the core institutions of democratic governance: the independent press, the judiciary, the bureaucracy, the validity of elections, the legitimacy of democratic contestation and opposition, and the centrality of facts to political discourse," write Robert Lieberman and coauthors.Robert Lieberman et al., " The Trump Presidency and American Democracy: A Historical and Comparative Analysis," Perspectives on Politics 17, no. 2 (2019): 470-479. Since the election of Joe Biden, Trump has cried voter fraud despite the lack of evidence and has refused to concede.

"The current state of US democracy raises the question of the place of federalism given the dominance of national issues."

Donald Trump's presidency has exacerbated the nationalization of politics in the United States. The current state of US democracy raises the question of the place of federalism given the dominance of national issues. Federalism is the type of government in which regional governments and a central government share power, both having their own spheres of responsibility and checks and balances on one another. When discussing the nationalization of politics, Michael Barbaro of The Daily summarizes its effect stating, "the nationalization of American politics is kind of the death knell for the governor as the go-to figure in our politics." However, the Trump administration's lackluster action on Covid-19 may give federalism a new life.

State governors have had to step up and act independently to address the current pandemic, taking measures, such as executive orders, to protect their constituents. Could this incipient revitalization of federalism be key to preventing democratic backsliding in the United States? I argue that the Covid-19 responses by various state governments strengthen US federalism, which will in turn create new opportunities to bolster US democracy. Federalism allows for a local government to tackle issues that may not be suitable for the federal government. The increased action occurring in state governments will allow states to exercise the ability to check federal government policies. Meanwhile, local governments and politicians oversee a jurisdiction that is closer to their constituents, giving citizens easier access to political participation than the federal government. If the strengthening of federalism results in increased participation due to this greater opportunity for access, then it may bolster US democracy

President Trump's response to Covid-19 has been inconsistent. Trump has blamed public health officials' recommendations for attempting to hurt the economy and his reelection campaign. Alex Burns states, "when you have a national scale crisis, typically it is the president who people hear from every day about the threat that is coming into their homes and their neighborhoods and what their government is going to be doing to help protect them. That's not happening here from the White House." This is why the governors stepped in.

"The decisions of state governments are becoming increasingly relevant, as is their ability to wield power, allowing for greater checks and resistance to the federal government instead of a more nationalized system seen before Covid-19."

By April 3, 16 state governors had declared some form of lockdown without instruction from the White House. Americans are looking less at the President for guidance than their governors, changing the balance of federal and state power. In July, 7 out of 10 Americans claimed they trusted their governors more than President Trump, including over half of Republicans. The lack of guidance from the White House in the early months of Covid-19 in the United States forced state governments to create stay-at-home mandates, social distancing guidelines, unemployment relief, and mask regulations themselves. These state mandates influence the everyday life of constituents, who are no longer going to work, out to eat, and are even isolated from family and friends. Seeing the power of the state regulating everyday life is reinvigorating the powers vested in state governments, therefore reinforcing the US power sharing structure that is federalism. These new state-level Covid-19 mandates are a larger exercise of state power than seen in decades before, at times directly contradicting the sentiments of the president. The decisions of state governments are becoming increasingly relevant, as is their ability to wield power, allowing for greater checks and resistance to the federal government instead of a more nationalized system seen before Covid-19. Though prevalent in the late twentieth century, state-level politics and politicians have been on the backburner in recent years. Every president elected between 1976 and 2004 has been a former governor with the exception of George H. W. Bush. Many controversial issues facing the country at that time were predominantly dealt with at the state level (such as budgets, education, and abortion rights), allowing candidates to campaign their state-level accomplishments. Around 2008 the US political climate changed, as major federal issues, such as the Iraq War and financial crises, took precedence over others, dominating the media and shifting focus from state to federal politics.

In 2019, Trump declared a national emergency to build a wall along the Mexican border. Nancy Bermeo, " This emergency declaration was in response to Congress not approving the $5.7 billion budget Trump asked for, and it freed up $8 billion that Congress allocated to the Treasury drug forfeiture fund, to counter drug activities, and the military construction fund. The power of the purse is a textbook check of the legislative branch on the executive, one which Trump weakened by invoking an emergency declaration to use funds for a border wall, which were allocated from other departments despite there not being an emergency. When identifying the main forms of democratic backsliding, Nancy Bermeo defines the term executive aggrandizement as "when elected executives weaken checks on executive power one by one, undertaking a series of institutional changes that hamper the power of opposition forces to challenge executive preferences." On Democratic Backsliding," Journal of Democracy 27, no. 1 (2016): 5-19. This form of democratic erosion is clear in the United States, one example being Trump's emergency declaration. The nationalization of politics centers the power of the federal government, allowing forms of democratic erosion such as executive aggrandizement to occur.

Federalism could be a key to preventing democratic erosion. A leading scholar on federalism, Heather Gerken writes, "the state and local level can influence policy simply by refusing to partner with the federal government."Heather K. Gerken, " The Loyal Opposition," Yale Law Journal 123, no. 6 (2014). An example of federalism at work is the 287(g) program. This program allows agreements to be made between the Department of Homeland Security and state and local police departments for the latter to act as immigration officers and enforce federal immigration policies. This is a clear example of the federal government's need for states' help in enacting policy. If states or other local governments find federal immigration policy to be too harsh, they can simply refuse to partake in the 287(g) program, preventing the federal policies from actually happening. We have seen this pushback happen in "sanctuary cities," which are cities that chose to limit cooperation with the federal government regarding immigration. For example, in Chicago, when Trump threatened mass deportation and raids in 2019, Mayor Lori Lightfoot directed her police to not cooperate with ICE and ordered them to cut off access to parts of the city's police database. By strengthening states' power, executive aggrandizement, a clear symptom of democratic erosion in the United States, can be hindered.

"California was among the first states to recognize the severity of the pandemic and issue lockdown orders, later to be followed by many other states, despite the lack of orders from the federal government."

So how can Covid-19 change the shape of modern federalism? States can bolster federalism and defy the federal government through the application of what is known as state-level regulatory spillover, i.e., when a state makes a regulation that affects nearby states.Heather Gerken, " We're about to See States' Rights Used Defensively against Trump," Vox December 12, 2016. California is a particularly important state due to its large population and economy. Governor Gavin Newsom was "one of the first big state governors to issue what we now think of as a lockdown order." Similarly, California was among the first states to recognize the severity of the pandemic and issue lockdown orders, later to be followed by many other states, despite the lack of orders from the federal government. The subsequent lockdowns and travel restrictions invoked by some states during Covid-19 impacted travel around the country, an example of spillover.

Another effect of state-level regulatory spillover is that it allows states to "set the agenda" for the federal government.Jessica Bulman-Pozen and Heather K. Gerken, " Uncooperative Federalism," Yale Law Journal 118, no. 7 (2009): 1256-1310. An issue affecting one state is easy for the federal government to avoid acting upon compared to issues affecting multiple states. In addition, states frustrated by other states' regulations will look to federal policymakers to address the issue. For example, when California imposed stricter environmental regulations, it affected the auto industry in Michigan, as they were not complying with these California regulations but could not afford to lose the California market. Due to these regulations, businessmen and politicians from Michigan asked the federal government to help resolve the issue, thrusting these environmental regulations onto the national agenda. If the federal government attempts to ignore an issue due to special interests, partisanship, or other less than democratic barriers, state spillover offers solutions. State-level regulatory spillover federalism can be used to safeguard democracy, as they allow states to have a larger influence beyond their own state and can put important issues in the federal government's agenda. Perhaps, as federalism strengthens due to the pandemic, an increase in state-level regulatory spillovers will occur as well.

While the Covid-19 pandemic is tragic, it has created a rather interesting opportunity to observe federalism in practice in the United States. By establishing mandates and lockdown orders without guidance from the federal government, state governments are flexing more power than they did before the pandemic, enforcing a check on executive power. With this increase in federalism, new opportunities may arise to counter an overbearing federal government and overturn undemocratic measures, like Trump's attempts to flout the election's results or a rushed Covid-19 vaccine. The pandemic has forced states and other local governments to make important decisions that are closely judged by their constituents unlike before, resulting in an increase in state autonomy and therefore increasing federalism, a key to prevent democratic erosion.

Banner photo: Governor Phil Murphy/ Flickr.

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Covid-19 Could Strengthen Federalism in the United States

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Many scholars have argued that US democracy has been slowly decaying, exemplified most recently by the election of Donald Trump.

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https://www.politico.com/news/2021/09/13/biden-mandates-vaccines-reactions-511680

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And Republican governors Brian Kemp of Georgia and Kristi Noem of South Dakota said they plan to challenge the mandate. Florida Gov. Ron DeSantis said he opposes "mandates of any kind."

All of that underscores how difficult it will be for the administration to quickly implement a sweeping policy that will affect some 80 million private sector workers.

"I think this redefines 'ideas are simple, execution is hard,'" said attorney Michael Lotito, who represents businesses for law firm Littler Mendelson.

"What we have right now is chaos," Lotito added, "because of the unintended consequences of making such an announcement where there is no clarity with respect to a gargantuan number of questions that have been left open."

The new emergency rules were announced Thursday as part of a new six-part effort from Biden to increase the vaccination rate in the U.S. as he seeks to tamp down criticism over the administration's handling of a surge in coronavirus cases related to the Delta variant. Only about 53 percent of the population is currently fully vaccinated, according to the Centers for Disease Control and Prevention.

The rules, which will be fleshed out by administration officials, will be the first federal Covid-19-specific safety mandates to impact everyday workplaces. Until now, most employers outside the health care industry have been subject to optional safety guidelines.

The emergency temporary standard will require companies with more than 100 workers to verify that their workforce is vaccinated or get tested weekly for Covid-19. Employers who break the rules could face fines of $14,000 per violation, according to the White House.

But there are many questions about what the scope of the rule will be. For instance, does the 100-employee threshold apply to one worksite, or an entire company? Does the company have to pay for testing or does the employee?

Implementing a rapid testing program like the one envisioned under Biden's plan is logistically difficult and costly, said Ian Schaefer, chair of Loeb and Loeb's employment and labor practice in New York.

"It's millions of dollars a year to any size company. I've seen companies do it before Biden issued his order and it's incredibly burdensome and time consuming and may not even guarantee health and safety in the way that mandating vaccines would," Schaefer said.

"The administration is incredibly difficult, and it's imperfect, with respect to making sure that the testing is timely, that people who are testing actually don't have COVID," he added.

It's also unclear how soon the rule will go into effect - standards issued by federal agencies typically take several weeks to write and go through executive branch review.

However, the Department of Labor has been working on the standard for at least a week, according to two people familiar with the matter.

The rules will be enforced by the federal Occupational Safety and Health Administration, and are expected to be issued in the coming weeks, an administration official said Thursday. But the agency took several months to issue a Covid-19 health care emergency temporary standard earlier this year and spent weeks meeting with stakeholders on the rule.

Business groups are expected to object to some aspects of the vaccine emergency rule.

Unions have also warned that mandatory vaccination policies in the workplace need to be negotiated between workers and their employers, raising the possibility of friction and delays in individual workplaces.

"Everyone should be vaccinated - as one step in stopping the pandemic," AFL-CIO President Liz Shuler said in response to Biden's Covid-19 plan. "Workers and unions should have a voice in shaping these policies."

The mandate also faces a fight in the court of public opinion. A recent Washington Post-ABC News poll found that less than half of Americans support workplace vaccine mandates.

Despite the uncertainties, a legal fight does not seem likely to come from big business players like the Chamber of Commerce or the National Retail Federation.

"We appreciate the administration's commitment to ensuring workplaces are safe despite the ongoing challenges of the pandemic," said Edwin Egee, vice president of government relations and workforce development at the NRF in response to the announcement. "We look forward to working with the Labor Department as it promulgates this rule."

The Chamber of Commerce said in a statement that it will "carefully review the details of the executive orders and associated regulations" and will work to ensure that employers have "resources, guidance, and flexibility" to comply with the requirements.

The Equal Employment Opportunity Commission has already clarified that employers can require their staffs to get vaccinated, so long as they provide accommodations for workers who say they can't get the shot because of their religious beliefs or a disability. Businesses can tell workers to stay home if they can't be vaccinated for one of those reasons, and workers could be fired if their employer is unable to accommodate remote work, attorneys say.

But proving that it would be an "undue hardship" to provide an accommodation can be difficult, and attorneys say they are skeptical that arguing the cost of providing testing is too expensive would meet that threshold.

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Biden's workplace vaccine mandate faces headwinds

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And Republican governors Brian Kemp of Georgia and Kristi Noem of South Dakota said they plan to challenge the mandate. Florida Gov. Ron DeSantis said he opposes "mandates of any kind." All of that underscores how difficult it will be for the administration to quickly implement a sweeping policy that will affect some 80 million private sector workers.

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https://www.theguardian.com/us-news/2021/sep/12/joe-biden-covid-vaccine-mandate-republican-backlash

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The political sparring match over Joe Biden's new vaccine mandate continued on Sunday with one Republican governor blasting the measure as "counterproductive" and the White House insisting it was necessary to end the coronavirus pandemic.

Asa Hutchinson, the governor of Arkansas, added to the growing Republican backlash on NBC's Meet the Press, telling host Chuck Todd that the president's directive to make the Covid-19 vaccination compulsory for businesses of greater than 100 employees was "an unprecedented assumption of federal mandate authority".

Several other red-state governors, including Ron DeSantis of Florida and Greg Abbott of Texas, have threatened to sue the federal government, arguing that Biden was acting unconstitutionally when he imposed the mandate, which will require the Covid-19 vaccine for millions of American workers, health workers and federal employees.

"It really disrupts and divides the country," Hutchinson said. "It divides our partnership between the federal government and the states and it increases the division in terms of vaccination when we should all be together trying to increase the uptake."

As hundreds of Americans continue to die each day from the virus, the federal Centers for Disease Control and Prevention (CDC) reported Sunday that 178.3 million people in the US were fully vaccinated, accounting for 53.7% of the population, while 209.1m (63%) had received at least one dose.

Biden showed frustration with the figures when he announced the mandate at the White House on Thursday, stating: "Many of us are frustrated with the nearly 80 million Americans who are still not vaccinated even though the vaccine is safe, effective and free."

His message was echoed by the US surgeon general, Vivek Murthy, in his own appearance on Meet the Press, who said that the US had needed to move to "the next phase" of pandemic response because of the highly contagious Delta variant.

"From the beginning the president and all of us have said we've got to use every lever we have in order to fight this pandemic," Murthy said.

"The business roundtable has said that this is the right move. The American Medical Association, certainly on the health side, has said this is the right move. It will help more places do what they want to do, which is to make workplaces safer so that people can feel more secure coming back to work and we can keep our economy strong.

Asked about the political opposition to the mandate, and governors claiming the regulation was unconstitutional, Murthy said: "One of the things that we cannot afford to do during this pandemic is allow the Covid-19 experience to turn us against each other. Our enemy is the virus. It is not each other."

In a later appearance on CNN's State of the Union, Murthy was questioned about the resistance from Hutchinson and Ohio's Republican governor, Mike DeWine, who have both partnered with the Biden administration over Covid.

"From time to time there will be disagreements on policies, but that doesn't mean that we don't stop dialoguing and working with one another," he said.

"The reason that we're pursuing some of these requirements is, again, we know a lot of businesses have welcomed it."

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Republican backlash against Biden's Covid vaccine mandate grows

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The political sparring match over Joe Biden's new vaccine mandate continued on Sunday with one Republican governor blasting the measure as "counterproductive" and the White House insisting it was necessary to end the coronavirus pandemic.

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https://www.newsweek.com/bidens-vaccine-mandate-counterproductive-likely-illegal-opinion-1628173

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https://www.thebulwark.com/are-bidens-new-vaccination-mandates-legal/

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Following yesterday's White House announcement of new federal policies regarding COVID vaccination and testing, one wag on Twitter had this to say:

President Biden just pulled the car over.

- Travis Akers (@travisakers) September 9, 2021

Yes, the announcement does have something of the feel of a grownup taking charge of the pandemic mayhem that still grips the country. Multiple COVID vaccines were made widely available months ago, and one of them has been recently approved by the FDA. But about 90,000 people have died in this country since April 1, and the vast majority of COVID cases, hospitalizations, and deaths are among the unvaccinated. About a quarter of Americans aged 12 and over still haven't had even one vaccine dose; when you add in the population of children still too young to be eligible for a vaccine, some 37 percent of the country hasn't had one dose. That's a huge population for infection, transmission, and the evolution of new variants.

The New Policies and the Political Reaction

The vaccine and testing requirements announced yesterday could encompass upwards of 100 million people, nearly two-thirds of the U.S. workforce. The policies could also give other businesses justification for mandating vaccines in the face of labor shortages and existing state and local laws that push against masking and vaccinations.

In his Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, Biden announced that:

to promote the health and safety of the Federal workforce and the efficiency of the civil service, it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exemptions as required by law.

His more comprehensive " COVID-19 Action Plan " extends the federal employee requirement to private contractors doing business with the federal government.

Perhaps most significantly, Biden in his plan also directs the Department of Labor's Occupational Safety and Health Administration (OSHA) to issue an "Emergency Temporary Standard"-and to later promulgate a regulation-that requires all employers with 100 or more employees to either be fully vaccinated or produce a negative coronavirus test result every week before coming to work.

Finally, Biden tasked the Centers for Medicare and Medicaid Services (CMS) with taking action to mandate vaccinations for health care workers in settings that receive federal dollars in the form of Medicare or Medicaid reimbursement. These include hospitals, dialysis facilities, and some home health providers. CMS was already on track to require vaccinations for nursing home employees; the new mandate would protect residents who wind up in the hospital, as well.

"Some of the biggest companies are already requiring this," said the president of mandatory vaccines and testing. "Even Fox News." Yet-of course-Fox wasted no time denouncing Biden in an on-screen banner as "an authoritarian." One Fox guest called the president a "rotting bag of oatmeal" and a "real tyrant." And as Charlie Sykes noted this morning, other right-wing media outlets were just as hysterical, like the Federalist, which called Biden's announcements "fascist" and "based on a lie."

Several Republican governors across the country immediately attacked the proposed policy. And GOP candidates for 2022 got into the act as well. Josh Mandel, running for the Senate in Ohio, implicitly tasked anti-maskers/anti-vaxers with violence:

Do NOT comply with the tyranny.

When the gestapo show up at your front door, you know what to do. pic.twitter.com/hLJbcx4ace

- Josh Mandel (@JoshMandelOhio) September 10, 2021

One of Mandel's opponents, J.D. Vance, said the president is a " geriatric tyrant" and called for " mass civil disobedience " to the new policies.

The Constitutional and Statutory Questions

From a legal standpoint, Ilya Shapiro of the Cato Institute charges that Biden's new vaccine policy imposes a "constitutional triple threat." Shapiro concedes that "the government can generally regulate its employees, or those it funds with Medicaid/Medicare dollars." That's not the political battleground. The perceived problem is Biden's directing that OSHA enact laws regulating private workplace safety to minimize exposure, sickness, and death due to the coronavirus.

Shapiro's first argument is a familiar one: that the president cannot constitutionally take steps that amount to legislative action. In the past few years, the U.S. Supreme Court has accordingly been asked to weigh in on presidential powers to impose a Muslim ban at the border, to lift a Trump-era policy of sending asylum seekers back to Mexico pending hearings, to include a citizenship question on the Census, and to implement the Deferred Action for Childhood Arrivals (DACA) plan.

The bottom line, however, is that the Court has long established that Congress can delegate powers to agencies headed by the president without running afoul of the Constitution. In this instance, the governing statute known as the Occupational Safety and Health (OSH) Act allows OSHA to bypass ordinary rulemaking procedures in the interest of "permitting rapid action to meet emergencies." OSHA explained its reasoning for regulating COVID-19 exposure when in June of this year it unveiled an interim rule requiring covered healthcare employers to implement protocols to reduce transmission-such as facemasks, disinfection, and encouraging vaccines.

Which is all to say that the separation of powers critique of Biden's actions is a tenuous and vastly overstated one.

There are other actions-such as the evictions moratorium, which was imposed by both Biden and Trump before him-that have similarly been criticized. The relevant question in all these cases is: What does the statute say the agency can do? For the evictions moratorium, the authority lay in the Public Health Service Act, which gives the CDC director the authority "to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases." The statute also allows the director to employ "any other measures" deemed necessary to achieve this objective. Arguably, forcing landlords to provide free rent is too far afield from the authority Congress delegated in the Public Health Service Act; that was the Supreme Court's rationale in its decision in August to enjoin the evictions moratorium (pending full argument). Biden's action under the OSH Act is unquestionably on more solid ground.

Shapiro next suggests that the OSH Act itself is unconstitutional as falling outside Congress's core authority to regulate interstate commerce. Yet it's been the law of the land for over fifty years, and has produced reams of regulations governing worker safety in fields from construction work and shipyard employment to longshoring and marine terminals. OSHA has rules about ladders, manhole steps, stairways, scaffolds, exit routes, noise exposure, ventilation, and a slew of hazardous materials including-wait for it- oxygen itself. It strains common sense to imply that regulating oxygen for all these years is constitutionally tolerable but that OSHA cannot regulate a lethal virus that has killed over 656,000 Americans to date, including babies and children who lack agency over their own health and safety and cannot get a vaccine in any event. Shapiro calls these efforts "forcing private business to do the government's dirty work." But regarding the constitutional question of interstate commerce, this virus-even if asked politely-is not going to respect state borders. It travels through the air, across state lines, across the globe, and into millions of lungs.

And if we stipulate, as the courts would likely find, that the OSH Act is constitutional, the new Biden vaccines-or-tests workplace requirement seems like a legitimate use of the powers Congress delegated through it.

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Are Biden's New Vaccination Mandates Legal?

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Following yesterday's White House announcement of new federal policies regarding COVID vaccination and testing, one wag on Twitter had this to say: President Biden just pulled the car over. - Travis Akers (@travisakers) September 9, 2021 Yes, the announcement does have something of the feel of a grownup taking charge of the pandemic mayhem that still grips the country.

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https://fedsoc.org/commentary/fedsoc-blog/the-cdc-s-eviction-moratorium-is-unconstitutional

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On Saturday, the federal government's Center for Disease Control will issue a new regulation barring eviction of millions of residential tenants around the country. If it survives likely legal challenges, the new policy would set a dangerous precedent undermining federalism, the separation of powers, and property rights. Conservatives, in particular, will have reason to regret it when a Democratic president inherits the same sweeping powers.

The CDC policy bars eviction, until the end of the year, of any residential tenant who makes a sworn declaration to the effect that they 1) have "used best efforts to obtain all available government assistance for rent or housing," 2) they expect to earn less than $99,000 ($198,000 for joint tax filers) in 2020 or did not have to report any income to the IRS in 2019, or received a stimulus check under CARES Act, 3) "the individual is unable to pay the full rent... due to substantial loss of household income... , a lay-off, or extraordinary out-of-pocket medical expenses" 4) "the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual's circumstances may permit" and 5) "eviction would likely render the individual homeless-or force the individual to move into and live in close quarters in a new congregate or shared living setting."

These rules could potentially apply to a wide range of people. The income cutoff of $99,000 for an individual taxpayer is far above the national poverty line, and indeed far above the median national household income of $61,937. (which includes numerous multi-person households). The requirement that the eviction "would likely render the individual homeless-or force the individual to move into and live in close quarters in a new congregate or shared living setting" could potentially apply to any situation where the evicted person ends up living in a new home with at least one other person. Having a roommate (including a family member) surely counts as a "shared living setting." Thus, the measure would protect from potential eviction large numbers of people who are clearly not poor, and would not end up homeless if evicted.

Such sweeping action by the executive normally at least requires authorization by Congress. As co-blogger Josh Blackman explains, the claimed authorization here is 42 CFR Section 70.2 a regulation that gives the Director of the CDC the power to "take such measures to prevent such spread of the [communicable] diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection." The CDC can take such measures anywhere it deems local and state regulations to be "insufficient" to limit the spread of disease across state borders.

Section 70.2 is itself just a regulation, not a law enacted by Congress; so there may be some question as to whether it itself has legislative authorization [see update below on this issue]. Assuming Section 70.2 does have such authorization, the Administration may be overreaching when it claims that it permits a sweeping nationwide eviction moratorium.

As Josh notes, the possible measures listed in the regulation-"inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection" are all relatively narrowly targeted policies focused on specific sources of infection, not wide-ranging nationwide regulations that apply regardless of how much danger there is in the particular location. Esjudem generis, a standard canon of legal interpretation, requires that anything in a list of items in a law should be interpreted as being "of the same kind" as other items on the same list. Here, everything on the list seems to be relatively limited in scope. Thus, the regulation only permits narrowly targeted, localized restrictions.

On the other hand, the administration can argue that these specific examples are just meant to be illustrative and all they really have in common with each other is that they are all examples of measures that might be thought "reasonably necessary" to limit the spread of disease. On that theory, Section 70.2 would allow the CDC to impose almost any regulation it wanted, so long as there is some minimally plausible argument that it would limit the spread of a communicable disease.

And note that, under the text of the regulation, the CDC need not prove that the regulations in question really are "reasonably necessary" or that state restrictions really are "insufficient." They need only assert ("deem") that such is the case.

This broad interpretation of the regulation would give the executive the power to restrict almost any type of activity. Pretty much any economic transaction or movement of people and goods could potentially spread disease in some way. Nor is that authority limited to particularly deadly diseases such as Covid-19. It could just as readily apply to virtually any other communicable disease, such as the flu or even the common cold.

Every year, thousands of people die because of the flu, and restrictions on mobility or on economic and social activity could be seen as "reasonable" ways to limit its spread. 42 CFR Section 70.1 (on which the definition of disease in Section 70.2 is based) in fact defines "communicable diseases" as "illnesses due to infectious agents or their toxic products, which may be transmitted from a reservoir to a susceptible host either directly as from an infected person or animal or indirectly through the agency of an intermediate plant or animal host, vector, or the inanimate environment." Notice that this applies to any disease spread by "infectious agents," regardless of severity. The flu and the common cold clearly qualify!

If Trump can use this authority to impose a nationwide eviction moratorium, Joe Biden (or some other future president) could use it to impose a nationwide mask mandate, a nationwide lockdown, or just about any other restriction of any activity that could potentially reduce the spread of the flu, the common cold, or any other disease.

Such virtually limitless executive authority to impose restrictions and mandates would make a hash of the separation of powers, enabling the president to circumvent Congress's authority on a massive scale. It also would completely undermine any semblance of "nondelegation" restrictions on grants of power to the executive. If Section 70.2 is authorized by Congress and has the broad scope the administration claims, it would virtually gut nondelegation. If Congress can delegate the power to suppress virtually any activity of any kind, so long as the CDC claims that doing so is "reasonably necessary" to reduce the spread of disease, it is hard to see how any meaningful limits on delegation would remain.

There are similar problems with the administration's ultrabroad interpretations of statutes delegating power over immigration and trade. But extending such arguments to the suppression of purely domestic economic and social activity further exacerbates the danger.

The administration's position threatens federalism, as much as separation of powers. If the executive can suppress pretty much any type of local activity so long as the CDC claims that it risks transmitting contagious diseases and state law is "insufficient," it can intrude in numerous areas of public policy that would otherwise be left to state or local control. At the very least, displacement of state or local power by the the feds would require congressional legislation, not just executive whim. Conservatives who may think such power can safely be entrusted to Trump will not be happy the next time a Democrat wields it, as could well happen as soon as next January.

A sweeping nationwide eviction moratorium is also a massive infringement on private property rights. Landlords may be stuck holding the bag for numerous tenants who refuse to pay. The same logic that justifies the moratorium can also be used to authorize virtually any other restriction on property rights, so long as the CDC claims that imposing it might limit the spread of some communicable disease. And that can be said of almost any regulation limiting property rights. This measure and the dangerously broad logic underlying it is yet another addition to the Trump administration's already terribl e record on property rights.

Josh Blackman posits that Congress will eventually enact legislation compensating landlords. But it is far from clear that will actually happen, and especially if it will happen fast enough to keep many smaller landlords from falling into dire financial straits. The same goes for efforts to recoup unpaid rent from tenants when the moratorium ends.

Moreover, whoever wins the presidential election might have strong political incentives to extend the moratorium for months to come. After all, the broad power implied by the administration's interpretation of Section 70.2 does not impose any time limits, or any limitations based on the severity of the disease threat the regulations are supposedly combating. Even after a Covid vaccine is discovered and deployed, the administration could potentially argue that continuing the moratorium is necessary, because the vaccine may not be 100% effective, and thus some disease risk remains.

Landlords could potentially recoup their losses by filing lawsuits under the Takings Clause of the Fifth Amendment. In my view, this sort of measure probably should be considered a taking. But courts have been reluctant to rule that state-imposed rent moratoria are takings, and the same deference is likely to be applied to a federal policy.

The administration's immigration restrictions are currently being challenged on nondelegation grounds, and similar lawsuits will likely be filed against the eviction moratorium. Hopefully, the plaintiffs will prevail in both cases. That may be the best prospect for overturning this measure in court.

Alternatively, the canon against interpreting statutes in ways that "raise constitutional problems" will lead courts to interpret Section 70.2 and its authorizing statute narrowly, thereby invalidating the moratorium, but preserving the statutes and regulations as sources of authority for more narrowly targeted public health measures.

Some might argue that this action will not set a dangerous precedent because the authority to impose moratoria and other restrictions created by Section 70.2 is given to the head of the CDC, an expert agency that is supposed to be guided by scientific evidence, not political or ideological imperatives. But the CDC is hardly immune to political pressure from the president and other politicians, as shown by a variety of instances where the Trump administration has bent the agency to its will. It is likely that political pressure played a significant role in this policy, as well. Moreover, even the most expert bureaucrats often have political agendas of their own. Rarely, if ever, is there such a thing as "public health" policy determined purely by technical scientific considerations without reference to morality or ideology.

Finally, it is worth noting that this sweeping moratorium is unnecessary, as well as illegal. There is no massive eviction crisis in the United States. To the contrary, eviction rates have been below normal levels since the start of the Coronavirus crisis in March, as was also true during previous recessions. And that has been the case even in areas where there are no local eviction moratoria. Barring extreme malfeasance of some kind, most landlords do not want to evict tenants during an economic crisis, if only because they know it will be hard to get new ones able to pay as much or more.

If the federal government nonetheless imposes sweeping eviction moratoria, that will incentivize landlords to raise rents or take on fewer tenants in the future, in order to guard against such policies. That will predictably reduce the available housing stock for tenants, especially the poor. The same goes if landlords have to leave the industry because they go bankrupt or otherwise lose large amounts of money.

To the extent that some kind of government assistance for needy tenants is desirable during an economic crisis, it is best-provided in the more targeted form of subsidies for poor tenants who otherwise cannot pay, not sweeping eviction moratoria that apply to millions of non-poor tenants, and leave landlords holding the bag.

UPDATE: I have made a few minor additions to this post.

UPDATE #2: The statute authorizing Section 70.2 is apparently 42 U.S.C. Section 264(a), which reads as follows:

The Surgeon General, with the approval of the [HHS] Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

The wording here is very similar to that of the regulation. It therefore raises the same sorts of issues as those described above with respect to 42 CFR Section 70.2. Most obviously, the broad interpretation necessary to justify the eviction moratorium raises nondelegation problems, and poses a grave threat to federalism, the separation of powers, and property rights.

The other interesting thing about 42 USC Section 264(a) is that it delegates the relevant authority to the Surgeon General, rather than the Director of the CDC, as Section 70.2 does. I am not sure whether that makes the regulation illegal. Perhaps the Surgeon General can somehow delegate his power to the director. At least for the moment, I will leave this particular issue to others with greater relevant expertise on the relationship between the Surgeon General and the CDC.

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Trump's Eviction Moratorium Could set a Dangerous Precedent [Updated]

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On Saturday, the federal government's Center for Disease Control will issue a new regulation barring eviction of millions of residential tenants around the country. If it survives likely legal challenges, the new policy would set a dangerous precedent undermining federalism, the separation of powers, and property rights.

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https://washingtonmonthly.com/2021/08/10/no-the-cdc-eviction-moratorium-does-not-raise-constitutional-issues/

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On August 3, the Biden Administration issued an order from the Centers for Disease Control and Prevention creating a second eviction moratorium. Given the agency's mixed record in court defending the first order, which applied to the entire United States, the CDC revised its provisions to "target specific areas of the country where [Covid] cases are rapidly increasing, which likely would be exacerbated by mass evictions." The moratorium's reach still extends to 80 percent of counties.

At a court hearing on August 9 to hear legal challenges to the new rules, U.S. District Court Judge Dabney Friedrich said:

Given that this order is almost identical to the CDC's earlier order, as to the effect of it, it's really hard in light of the Supreme Court's decision, in light of the Sixth Circuit's decision, in light of statements this administration has made both before and after the Supreme Court decision, to conclude there's not a degree of gamesmanship going on.

But it is hardly unprecedented for authorities, in hope of winning the day, to tweak either regulatory or legislative initiatives that the judiciary has earlier rebuffed. Recall that the Trump travel ban order ultimately approved by the Supreme Court was a third draft. The Trump administration's earlier drafts were rejected in decisions by three district courts and the U.S. Court of Appeals for the Ninth Circuit.

In issuing an eviction moratorium, the Biden administration is not claiming any inherent constitutional powers of the presidency. President Joe Biden is not, like Abraham Lincoln, asserting necessity as a justification for suspending habeas corpus unilaterally. He is not, like Harry Truman, claiming that his commander-in-chief powers allow him to seize domestic steel mills. He is not even, like Donald Trump, relying on nothing at all in ordering his Office of Management and Budget to set annual "cost ceilings" on the number of regulations administrative agencies may issue.

The moratorium controversy is a dispute over law and policy. It is about statutory, not constitutional, interpretation. Article II, which sets out the president's powers, is not involved.

The administration acknowledges that any power it has to protect public health must come from Congress, presumably exercising its Commerce Clause power to protect the nation from significant threats to interstate commerce, including public health threats that arise from local activity. The legal fight is about whether the CDC is properly interpreting two sentences in Section 346 of the 1944 Public Health Act, which is based on that power.

The first sentence of the key paragraph is worded broadly enough-especially if read literally-to encompass a health-protective eviction moratorium. Originally empowering the Surgeon General, whose relevant functions have since been transferred to the CDC director, it authorizes that official "to make and enforce such regulations as... are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession." These words pose no bar to eviction bans as a technique for preventing the spread of disease.

This section's capacious initial sentence, however, is followed by another: "For purposes of carrying out and enforcing such regulations," the director "may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary." Opponents of the moratorium argue that this second sentence shows a carefully delineated legislative intent. As explained by one federal judge who reads the statute narrowly, the text reveals that Congress empowered the executive in the first sentence to regulate only "animals or articles which are themselves infected or a source of contagion that presents a risk of transmission to other people."

Defenders of the moratorium read the second sentence, however, as having no such limiting effect. Rather than narrowing the reach of the first sentence, they argue, the second sentence underscores the breadth of the first. "Such regulations" as the first sentence permits may even allow the CDC to trespass upon or seize property in ways that might otherwise raise problems under the Fourth Amendment. But such trespasses and seizures do not exhaust the CDC's authority.

In taking the broader view, the Biden administration is hardly engaging in what the National Review's David Harsanyi laughably called an "unprecedented attack on the Constitution." U.S. District Court Judge J. Philip Calabrese-a Trump appointee who ruled last March in Ohio that the CDC's prior moratorium was unlawful-came closer to the mark. The question of the moratorium's legality, Calabrese wrote, "depends on interpretation of the particular statutes at issue-a... lawyerly and arcane task about which reasonable people may ultimately disagree." Indeed, although six lower courts ruled against the earlier CDC moratorium, three others would have upheld it. And contrary to Harsanyi in the National Review, the Washington Post, and perhaps even President Biden -the Supreme Court has never ruled on the matter.

However inadvertently, Biden added to confusion about the controversy when he cast his deliberations as a matter of consultation with "constitutional lawyers" and said, "the bulk of the constitutional scholarship says that [a moratorium] is not likely to pass constitutional muster." The only constitutional question plausibly implicated is whether the president would have inherent Article II authority to impose a health-protective peacetime eviction moratorium. The answer to that question is clearly "no." It is hard to imagine any competent constitutional lawyer anywhere on the political spectrum concluding otherwise.

There is, to be sure, a backdrop constitutional question that affects the nay-sayers' reading of the Public Health Act. Conservative Justices, as well as legal scholars, have raised anew the "non-delegation question"-that is, they debate whether Congress may constitutionally authorize executive action in terms as broad as those embodied, for example, in that generous initial sentence on which the CDC relies. As long understood by the Supreme Court, the so-called nondelegation doctrine precludes Congress from giving the executive branch policymaking authority unless it is constrained by some " intelligible principle." The principle must be limiting enough to enable courts to test the legality of how administrative authority is being exercised. Giving the executive branch limitless discretion would, under the nondelegation doctrine, put Congress in the unconstitutional position of abdicating its legislative power.

Whether the Public Health Act, read broadly, violates the nondelegation doctrine is debatable under current case law, but, for modern-day conservative jurists, the question may appear serious enough to invoke what is called the "constitutional avoidance canon" in reading the Public Health Act. If a statute is subject to alternative plausible readings, but one of the alternatives would raise serious constitutional issues, the "avoidance canon" counsels judges to choose the less problematic reading. The canon puts a thumb on the scale in favor of the more restrictive interpretation of CDC power-at least if you think reading the statute broadly would raise a serious constitutional concern about delegation.

A conundrum exists, however, because the "constitutional avoidance canon" is not the only venerable guide to interpretation at stake here. Another is the "ordinary meaning" canon, a favorite of the Roberts Court. If the ordinary meaning of a statutory provision meaning is clear, judges following this rule would apply that plain meaning. In this case, the plain meaning of the broader sentence in question favors the CDC.

Yet another is the canon that so-called remedial statutes (laws that repair defects in earlier statues, provide redress to legally injured people, or introduce "regulations conducive to the public good") ought to be read broadly in order to accomplish their purposes. Following that reasoning, if Congress wanted the CDC to have adequate power to combat interstate threats to public health, and if a health-protective eviction moratorium would do so, the "remedial" canon gives points to the CDC. After all, the broadly worded first sentence is not an entirely blank check for the CDC. Any measures adopted must be "necessary" to accomplish Congress's explicit objectives. Requiring a demonstration of reasonable necessity in this context provides an "intelligible" limitation on CDC discretion. From this point of view, the specter of excessive delegation seems vaporous. (I'm putting aside for purposes of this argument important scholarship here and here, to which the Supreme Court has yet to attend, that questions whether the non-delegation doctrine has any strong historical basis at all.)

It is speculation about the state of the nondelegation doctrine that makes the current role of the Supreme Court problematic. National Review, the Washington Post, and even Biden at his press reference, all said-quite wrongly-that the Supreme Court has ruled that the CDC doesn't have power to impose an eviction moratorium. There has been no such ruling. Last May, U.S. District Court Judge Friedrich sided in D.C. with plaintiffs in striking down the CDC moratorium that expired in July. The judge, however, "stayed" her order-that is, she prevented it from going into effect so that the government could appeal. The U.S. Court of Appeals for the D.C. Circuit refused in June to lift that stay, meaning that the moratorium remained in place. The plaintiffs then filed an "emergency application" to the Supreme Court, asking the Justices to vacate the "stay" and allow landlords to begin evictions.

A decision by that Court to lift the stay would have required five votes. Justices Alito, Barrett, Gorsuch, and Thomas voted to do so. However, the three liberals (Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor), joined by Chief Justice John Roberts and Justice Brett Kavanaugh, voted against lifting the stay. After this 5-4 vote, the moratorium remained in place. Kavanaugh was the only Justice to explain his vote. In a separate solo opinion, he said he would not vote to block the CDC's first moratorium when it would expire in a month by its own terms. However, he added: "In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July."

Kavanaugh's statement is not the law; it is not a "ruling"; it articulates his personal viewpoint and not a legal holding. The entire case was handled in what has come to be called the Supreme Court's "shadow docket." This docket comprises a wide variety of court orders that are not fully briefed and argued, as are cases on the Court's high-profile "merits docket." The reasons animating the Court's shadow orders are frequently left to guesswork-as this one was.

Kavanaugh's statement, however, is being treated as a legal holding. There is a general assumption that the four Justices who would have lifted the stay can be counted on to overturn any public health policy supported by Democratic progressives-and that Kavanaugh will predictably join them. The conservative Justices have all expressed doubts on occasion about the permissiveness of the nondelegation doctrine in its current state. They are likely to regard the property rights of landlords as also of central concern.

There are, however, at least three problems with treating the Kavanaugh statement as somehow binding on the Biden Administration. One is that the new moratorium, although effective across most of the country, is not fully national, unlike the moratorium about which Kavanaugh spoke. In other words, this is not an "extension" of the previous moratorium-it is more careful in defining the leases and geographic areas it refers to.

The breadth or narrowness of regulations is an important consideration in statutory construction. The refinements could very well affect the Court's analysis.

The second is that Chief Justice Roberts, himself no slouch in worrying about broad delegation, joined the Court's liberals in leaving the moratorium in place. If his vote represents his substantive interpretation of the Public Health Act, we shouldn't assume that, after full briefing and argument, he may not be able to bring one other Justice to his side.

Third, we don't know the jurisprudential basis for the votes of Justices Alito, Barrett, Gorsuch, and Thomas. They may have a firm view of CDC authority. But they also might have thought more modestly that the legal question is a close one-and that it would thus be unfair to allow the new moratorium to compromise the property rights of landlords.

Defenders of Donald Trump's Supreme Court nominees-now Justices Gorsuch, Kavanaugh, and Barrett -routinely chastised skeptics for assuming that, as jurists, Trump's Justices would simply vote a right-wing party line. If that assumption was not to be indulged when those judges were elevated to the Court, it ought not be used now to treat their unexplained votes on procedural motions as binding the Biden Administration on matters of substantive legal interpretation.

What constitutional lawyers could accurately have told President Biden is that the Supreme Court has previously held that not every legal claim challenging a president's interpretation of statutory authority is of constitutional dimension. Every administration loses some cases in court, and the Biden Administration may lose this one. But every administration makes honest, even if politically convenient mistakes in interpreting the scope of Congress's frequently ambiguous charges. In this instance, the administration's position is less "stretchy" than the Bush Administration's assertion that waterboarding is not torture, the Obama Administration's claim of authority to remain engaged in Libya under the War Powers Resolution, or the Trump Administration's claim that the southern border wall could be funded as a "military installation."

The time to worry is when presidents treat Article II as a constitutional permission slip to bypass Congress or signal their indifference to shoddy or purely tendentious lawyering. Neither happened here.

Related

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No, the CDC Eviction Moratorium Does Not Raise Constitutional Issues | Washington Monthly

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On August 3, the Biden Administration issued an order from the Centers for Disease Control and Prevention creating a second eviction moratorium. Given the agency's mixed record in court defending the first order, which applied to the entire United States, the CDC revised its provisions to "target specific areas of the country where [Covid] cases are rapidly increasing, which likely would be exacerbated by mass evictions."

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https://www.forbes.com/sites/andrewsolender/2021/08/05/biden-now-says-he-thinks-new-eviction-moratorium-is-constitutional--but-who-knows/?sh=5e48f89b7dad

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Biden Now Says He Thinks New Eviction Moratorium Is Constitutional – But ‘Who Knows?’

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“I think it is,” Biden said of its constitutionality, adding that scholars told him, “We think you have the authority... but, in this court, who knows?”

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Supreme Court Ends Biden’s Eviction Moratorium (Published 2021)

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The ruling followed political and legal maneuvering by the administration to retain protections for tenants. It puts hundreds of thousands at risk of being put out of their homes.

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https://www.npr.org/2021/08/26/1024668578/court-blocks-biden-cdc-evictions-moratorium

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The U.S. Supreme Court has blocked the Biden administration's order extending the federal eviction moratorium to a large swath of the country, in a decision expected by both legal scholars and the White House.

The ban on evictions, a two-month order, was issued by the Centers for Disease Control and Prevention. The pause covers parts of the United States that are experiencing what the CDC calls "substantial" and "high" spread of the coronavirus.

The unsigned decision from the court was 6-3, with the court's three liberal justices dissenting.

The court's majority said the CDC exceeded its authority with the temporary ban.

The majority opinion says that the CDC for its order relied on "a decades-old statute that authorizes it to implement measures like fumigation and pest extermination."

"It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts," the majority writes, adding: "If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it."

White House press secretary Jen Psaki said the administration is "disappointed" by the decision.

"As a result of this ruling," she said in a statement, "families will face the painful impact of evictions, and communities across the country will face greater risk of exposure to COVID-19."

Thursday's decision was all but written in June when the Supreme Court, in a 5-4 decision, allowed an earlier moratorium issued by the CDC to stand. At that time, Justice Brett Kavanaugh sided with the majority but wrote that he did that because the moratorium was set to expire in just a few weeks on July 31.

Back then, Kavanaugh, who cast the fifth and deciding vote, also wrote that he voted not to end the eviction program, "because those few weeks will allow for additional and more orderly distribution" of the funds that Congress appropriated to provide rental assistance to those in need due to the pandemic.

But Kavanaugh said that in his view Congress would have to pass new and clearer legislation to extend the moratorium past July. And despite a last-minute effort in Congress to do that, lawmakers didn't have the votes.

Slow rollout of aid

Congress has approved nearly $50 billion to help people pay back rent and avoid eviction. But while in some states and counties that's been working well, in many others the help hasn't reached the vast majority of renters who need it.

By one estimate, 15 states still haven't managed to get even 5% of those federal dollars out the door to renters facing eviction.

With the Delta variant of COVID surging in many parts of the country, the CDC issued a more limited eviction moratorium through Oct. 3.

This latest decision from the court comes just about three weeks after the CDC issued that protection.

"Without this Order, evictions in these [higher transmission] areas would likely exacerbate the increase in cases," the CDC order said, adding: "The COVID-19 vaccination effort has a slower rate of penetration among the populations most likely to experience eviction."

The CDC moratorium has protected many from eviction. More than 7 million people are still behind on rent in the wake of the pandemic related shutdowns.

"Nationwide, we've got about twice as many people as normal not being able to pay rent," says Peter Hepburn, a researcher with Princeton University's Eviction Lab. But he says the CDC order has been shielding many of them.

"Over the last 11 months, while this eviction moratorium has been in place, we estimate that there have been at least 1.5 million fewer eviction cases than normal," Hepburn says. "This has really helped to keep an extraordinary number of families in their homes."

Back and forth on Capitol Hill

The CDC's latest move to modify and extend its federal eviction order followed a week in which the moratorium became a political football in Washington. After Congress failed to extend it past July 31, that led Democratic congressional leaders and progressives to call on Biden to extend the moratorium through Oct. 18.

But on Aug. 2, Gene Sperling, who oversees the White House's rollout of the COVID relief, said Biden "has double, triple, quadruple checked" on whether he could unilaterally extend the eviction moratorium, but determined it was not possible.

Sperling pushed back against criticism from Democrats on Capitol Hill who said the White House should have acted sooner in extending the eviction moratorium. He noted that the Supreme Court made it clear that "congressional authorization" was needed on the matter.

The White House also maintained that the CDC "has been unable to find legal authority for a new" eviction moratorium, even as Biden called on states and localities to put in place evictions moratoriums for at least the next two months.

In remarks to reporters earlier this month, Biden himself predicted the legal challenges the moratorium would face, saying: "Any call for a moratorium based on the Supreme Court's recent decision is likely to face obstacles."

That's what happened on Thursday.

Housing groups have warned that pulling the CDC eviction protections away from people before congressional aid can reach them would spark a wave of evictions that could otherwise be avoided. Landlords have long argued that the CDC order was an overreach and that the agency doesn't have the power to, in effect, take control of their properties.

At the outset of the coronavirus pandemic, Congress adopted a limited, temporary moratorium on evictions. After the moratorium lapsed last July, however, then-President Donald Trump asked the CDC to step in and issue a new eviction ban, which it did in September. In March, Biden extended that ban, which expired at the end of June. Then on June 24, the Biden administration notified the Supreme Court it had extended the moratorium until July 31. It also said that barring a rise in coronavirus cases, the "CDC does not plan to extend the Order further."

Since then, however, there has been a steady rise in COVID-19 cases, driven by the delta variant, largely in areas with the lowest vaccination rates.

"The trajectory of the pandemic has since changed - unexpectedly, dramatically, and for the worse," the Biden administration wrote in a filing in the case before the Supreme Court, citing a nearly 10-fold increase in daily new COVID cases.

A conservative court

Some housing legal experts say the case lays bare the new nature of the Supreme Court with its three conservative justices confirmed during the Trump administration.

"Some people would say is a more conservative court because they want to view it as a binary," says Shamus Roller, the executive director of the National Housing Law Project. "But what this is, is a more radical court. It's one that's willing to ignore the law to get the outcome that they want around this particular case."

Roller says the fact that Congress itself voted for an earlier extension of the CDC order as part of its COVID relief legislation should have been enough to satisfy the court as to the intent of Congress regarding the CDC's authority to impose the moratorium - the central issue in the case.

The realtors group bringing the case though argued the CDC had exceeded its authority and that the moratorium has been collectively costing landlords billions of dollars every month.

Housing groups say it's crucial now that the programs around the country distributing that $50 billion from Congress get more money out the door to renters more quickly. They say if landlords see that process is working, they will be more patient and hold off on evictions.

But in places where the rental relief distribution is still more of a mess, they say more landlords will lose faith and decide evicting tenants is their best option.

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The Supreme Court Will Allow Evictions To Resume. It Could Affect Millions Of Tenants

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The U.S. Supreme Court has blocked the Biden administration's order extending the federal eviction moratorium to a large swath of the country, in a decision expected by both legal scholars and the White House. The ban on evictions, a two-month order, was issued by the Centers for Disease Control and Prevention.

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https://www.newsweek.com/some-states-enact-eviction-moratoriums-keeping-residents-homes-scotus-ends-federal-order-1623690

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Several states have enacted their own eviction moratoriums, keeping residents in their homes as the Supreme Court ended the federal order preventing evictions due to the COVID-19 pandemic, the Associated Press reported.

States including California, Maryland and New Jersey have put their own temporary bans on evictions to protect residents. The Supreme Court blocked the Biden administration from enforcing the newest federal ban, which prompted the president to urge others to take their own measures.

White House press secretary Jen Psaki said the administration was "disappointed" by the court's decision, and President Joe Biden "is once again calling on all entities that can prevent evictions-from cities and states to local courts, landlords, Cabinet Agencies-to urgently act to prevent evictions."
For more reporting from the Associated Press, see below.
The court's action ends protections for roughly 3.5 million people in the United States who said they faced eviction in the next two months, according to Census Bureau data from early August.

The court said late Thursday in an unsigned opinion that the Centers for Disease Control and Prevention ( CDC), which reimposed the moratorium on August 3, lacked the authority to do so under federal law without explicit congressional authorization. The justices rejected the administration's arguments in support of the CDC's authority.

"If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it," the court wrote.

The three liberal justices dissented. Justice Stephen Breyer, writing for the three, pointed to the increase in COVID-19 caused by the Delta variant as one of the reasons the court should have left the moratorium in place. "The public interest strongly favors respecting the CDC's judgment at this moment, when over 90% of counties are experiencing high transmission rates," Breyer wrote.

Representative Cori Bush (D-Mo.), who had camped outside the Capitol as the eviction moratorium expired at the end of last month, said Congress must act to reinstate the protections.

"We are in an unprecedented and ongoing crisis that demands compassionate solutions that center the needs of the people and communities most in need of our help. We need to give our communities time to heal from this devastating pandemic," she said in a statement. "We didn't sleep on those steps just to give up now. Congress must act immediately to prevent mass evictions."

It was the second loss for the administration this week at the hands of the high court's conservative majority. On Tuesday, the court effectively allowed the reinstatement of a Trump-era policy forcing asylum seekers to wait in Mexico for their hearings. The new administration had tried to end the Remain in Mexico program, as it is informally known.

On evictions, Biden acknowledged the legal headwinds the new moratorium would likely encounter. But he said that even with doubts about what courts would do, it was worth a try because it would buy at least a few weeks of time for the distribution of more of the $46.5 billion in rental assistance Congress had approved.

The Treasury Department said Wednesday that the pace of distribution has increased and nearly a million households have been helped. But only about 11 percent of the money, just over $5 billion, has been distributed by state and local governments, the department said.

The administration has called on state and local officials to "move more aggressively" in distributing rental assistance funds and urged state and local courts to issue their own moratoriums to "discourage eviction filings" until landlords and tenants have sought the funds.

In a separate order earlier this month, the high court ended some protections for New York residents who had fallen behind on their rents during the pandemic.

The high court hinted strongly in late June that it would take this path if asked again to intervene. At that time, the court allowed an earlier pause on evictions to continue through the end of July.

But four conservative justices would have set the moratorium aside then and a fifth, Justice Brett Kavanaugh, said Congress would have to expressly authorize a new pause on evictions. Neither house of Congress has passed a new evictions moratorium.

The administration at first allowed the earlier moratorium to lapse on July 31, saying it had no legal authority to allow it to continue. But the CDC issued a new moratorium days later as pressure mounted from lawmakers and others to help vulnerable renters stay in their homes as the coronavirus' Delta variant surged. The moratorium had been scheduled to expire on October 3.

Landlords in Alabama and Georgia who challenged the earlier evictions ban quickly returned to court, where they received a sympathetic hearing. U.S. Judge Dabney Friedrich, an appointee of former President Donald Trump, said the new moratorium was beyond the CDC's authority.

But Friedrich said she was powerless to stop it because of an earlier ruling from the federal appeals court in Washington, D.C., that sits above her. The U.S. Court of Appeals for the District of Columbia Circuit likewise refused to put the CDC order on hold, prompting the landlords' emergency appeal to the Supreme Court.

The earlier versions of the moratorium, first ordered during Trump's presidency, applied nationwide and were put in place out of fear that people who couldn't pay their rent would end up in crowded living conditions like homeless shelters and help spread the virus.

The new moratorium temporarily halted evictions in counties with "substantial and high levels" of virus transmissions and would cover areas where 90 percent of the U.S. population lives.

The Biden administration argued that the rise in the Delta variant underscored the dangers of resuming evictions in areas of high transmission of COVID-19. But that argument did not win broad support at the high court.

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Some States Enact Eviction Moratoriums as SCOTUS Ends Federal Order

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Several states have enacted their own eviction moratoriums, keeping residents in their homes as the Supreme Court ended the federal order preventing evictions due to the COVID-19 pandemic, the Associated Press reported. States including California, Maryland and New Jersey have put their own temporary bans on evictions to protect residents.