Law Profs Examine 8 Legal Landmarks of 2016, and What They May Mean in 2017

landmarks

From Trump to Brexit, historians will reflect on 2016 as a news year that had far-reaching impact on the law, University of Virginia School of Law professors said.

Professors identified the U.S. presidential election, a state “bathroom bill,” an act of Congress, U.S. Supreme Court decisions and a ruling in the United Kingdom as a few of the pivotal events that will continue to reverberate.

2016 Election: Potential Repeal of the Affordable Care Act

In the run-up to the presidential election, many Republicans, including President-elect Donald Trump, promised to immediately “repeal and replace” the Affordable Care Act. Now that Republicans are about to control the White House as well as Congress, they are discovering that it’s not so easy to do, said Professor Margaret Foster Riley, an expert in health law.

“Some central parts of the ACA – the guaranteed issue requirement, which forces insurers to issue insurance regardless of an applicant’s health status, and the opportunity for individuals younger than 26 years of age to stay on their parents’ health insurance – have broad popularity,” Riley said. “About 20 million people who did not have health insurance before the ACA are now insured. It is very hard to take people’s insurance away, so some aspects of the insurance exchanges and Medicaid expansion must be retained.”

Even the very unpopular parts of the statute, the individual and employer mandates, are difficult to repeal because, without them, the insurance markets become uncertain, she said. 

“What we are likely to see is some sort of symbolic repeal and significant delay as the mechanics are worked out,” Riley said. “Some favorite Republican ideas such as block grants for Medicaid and Health Care Savings accounts are likely changes, but plenty of aspects of the ACA are likely to be retained – perhaps with a new name.”

2016 Election: Possible Impact on Federal Tax Law

Professor George Yin, a former chief of staff of the U.S. Congress’ Joint Committee on Taxation, said the election may also have an important impact on federal tax law.

“Some observers believe that the new political leadership will enable enactment of major federal tax changes that have been stymied for many years,” Yin said.

But the exact direction of any possible change is still unclear. He said that at least three core questions will need to be resolved.

First, “Will any tax change principally benefit large corporations and higher-income individuals – the principal targets of most Republican tax proposals – or will it be redesigned to provide greater and more direct benefits to the ‘populist’ supporters of the new president?”

Second, Yin wondered if tax relief that decreases federal revenue significantly, coupled with anticipated large increases in expenditures on infrastructure and defense, would create a conflict for President-elect Trump’s supporters, “some of whom have shown great antipathy toward increased federal deficits and debt in the past.”

Finally, he speculated whether proposed changes to the international tax rules that would facilitate cross-border investment and trade – “the traditional goal of Republican policies” – will now be reversed in light of the president-elect’s apparent support for greater protectionism and decreased international commerce.

Criminal Law: Junk Science Falling Out of Favor, Executions Declining

Brandon Garrett, an expert in criminal law, said despite the media’s emphasis on troubling criminal justice issues, including shootings by and of police officers, 2016 had some positive developments.

A President’s Council for Advisors on Science and Technology report brought to light some previously under-reported studies about fallibility in forensics. The report noted a study showing a one in 18 error rate for fingerprint comparison and another showing a one in six error rate for bite-mark comparison. Garrett said the report follows a trend of experts trying to correct ways misleading information may lead to false convictions.

“Hopefully, the White House report adds more impetus for change,” Garrett said.

He also mentioned a trend that continued in 2016, which he sees as positive – the decline in the use of the death penalty by states.

“The year is not quite out yet, but it promises to have even fewer death sentences than last year – just over two dozen sentences – the lowest number by far in three decades,” Garrett said. “Executions also reached record lows. That in itself represents a landmark in our standards of decency ‘on the ground,’ even if the Supreme Court has not yet had the right occasion to take stock of the modern death penalty’s decline into obsolescence.”

Bathroom Battles: N.C. Bill Adopted, But Future Uncertain

This year cities and states also contemplated what the rules should be for transgender people who wish to use public restrooms.

The Public Facilities Privacy and Security Act in North Carolina, passed in reaction to a Charlotte city ordinance permitting individuals to use the bathroom that corresponds with their gender identity, was approved as law in March. The North Carolina law restricts restrooms and locker rooms to individuals of the same biological sex.

“The ‘bathroom bill’ is yet another flashpoint in the culture wars, pitting LGBT advocates and proponents of transgender equality against those who view the Charlotte ordinance as an assault on traditional gender roles,” said Professor Richard Schragger, an expert on cities and local governments.

He added, “The Supreme Court will weigh in on the issue in the current term [in Gloucester County School Board v. G.G., challenging the rights of Virginia high school student Gavin Grimm], for the Obama administration has taken the position that allowing transgender students to use the bathroom that accords with their gender identity is required by Title IX’s ban on sex discrimination in educational institutions.”

The Fourth Circuit recently deferred to that interpretation of Title IX in the North Carolina case, Schragger noted.

“The Trump administration is likely to disagree, however, and will probably seek to have the Fourth Circuit decision overturned,” he said. “That outcome would certainly be a blow to equality and a step back for transgender rights.”

Passage of the Justice Against Sponsors of Terrorism Act

A new federal law will allow U.S. nationals to file civil action against a foreign state for physical injury, death or damage as a result of an act of international terrorism committed by a designated terrorist organization.

Professor Paul Stephan, an expert on international business, international dispute resolution and comparative law, said the Justice Against Sponsors of Terrorism Act, which was proposed after connections were alleged between the Saudi Arabian government and the attacks on Sept. 11, 2001, could weaken the nation’s hand in combating terrorism. He spoke out against the proposal during congressional hearings.

“Put briefly, I think the bill invites shrinkage of sovereign immunity abroad that will harm the United States and impede our anti-terrorism activities, result in default judgments and refusals to pay rather than any justice to victims, and bizarrely privatizes anti-terrorism by leaving it to litigants and judges, rather than the political branches, to determine what states sponsor terrorism,” Stephan said.

President Barack Obama vetoed the act, but the Senate overrode his veto in September, making it law.

Affirmative Action in College Admissions

Professor George Rutherglen, an expert in affirmative action law, foresees steadiness in higher education admissions after a decision by the Supreme Court, in Fisher v. University of Texas. The case upheld the right of colleges and universities to consider affirmative action models in their admissions decisions.

“In Fisher v. University of Texas, on the second time around [it was sent back to the lower courts in 2013], the Supreme Court surprisingly upheld the validity of the university’s affirmative action plan, after suggesting in its first decision in this case that the plan was invalid,” Rutherglen said.

“In particular, in that earlier decision, the court cast the entire burden of justifying the race-conscious features of the university’s admissions process upon the university itself. In this second decision, it appeared to back away from this allocation of the burden of proof, putting some burden on those who attack affirmative action plans to show that there are ‘available and plausible’ race-neutral alternatives.”

He said some might see the latest decision as transitional, soon to be overridden by conservative appointments to the court, but he expects the holding to remain firm.

“A quick look at the math shows that if Justice [Elena] Kagan participates in the next challenge to affirmative action, as she is very likely to do, that at least five justices will find some ground for upholding affirmative action,” he said. Kagan had recused herself from the Fisher case due to her previous role as U.S. Solicitor General.

Rutherglen also noted that this issue did not figure prominently in the recent presidential election, which may be another indication that the practice will go unchanged.

McDonnell Case Begs Question of What Constitutes Bribery

In another Supreme Court decision, the extent to which a sitting governor, or his family, can receive gifts in exchange for political access also played out in 2016.

In McDonnell v. United States (decided in June), the U.S. Supreme Court vacated the conviction of former Virginia Gov. Robert McDonnell, who had been convicted on bribery charges for receiving luxury items (a Rolex watch, shopping trips for his wife and more) for setting up meetings and hosting events. 

“While this may sound like bribery, the Supreme Court concluded that the Virginia statute did not prohibit this sort of exchange,” said Professor Deborah Hellman, who teaches constitutional law. “Because the court did not find that a state could not prohibit the sale of access, just that Virginia hadn’t, the important question going forward will be whether state and federal lawmakers should prohibit the sale of meetings or other access to officials as bribery.”

An understanding of the concept of bribery helps the discussion, she said.

“Ever hear a parent say she ‘bribes’ her kids to get good grades?” she asked. “Why does this parent say she ‘bribes’ them rather than saying she ‘pays’ them? After all, the same parent might say that she ‘pays’ her child to rake the yard. The parent describes the first payment as a bribe because she thinks that money is the wrong kind of reward for diligent study. We use the term bribery to signal that some boundary has been crossed. 

“Now lawmakers must decide where to draw the line between official acts that must not be exchanged for money and non-official acts, which can be.”

Ruling by U.K. Judges on Brexit

In court news outside of the U.S., three judges of the United Kingdom’s High Court of Justice ruled in early November that the government may not proceed with implementing the so-called “Brexit” decision, approved earlier in the year, without consulting Parliament.

Brexit was the nickname given to the U.K.’s vote, by referendum, to withdraw from the European Union. Initial news reports indicated a mood of regret coupled with economic worry following the decision.

“The High Court’s judgment now throws up a roadblock,” said Professor A.E. Dick Howard, an expert in foreign governance and constitutions.

Howard said the struggle over who decides the issue may affect the future of British governance.

“Parliament is sovereign,” Howard said. “Or is it? When the recent referendum was held, most members of Parliament supported a ‘remain’ vote, but most represent constituencies that voted to ‘leave.’ Which form of government is the United Kingdom to have? Is the referendum to be taken as purely advisory? Or will the U.K. creep a step closer to diluting parliamentary sovereignty with notions of direct democracy?”

The government has said it will appeal the High Court decision to the U.K. Supreme Court.

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