Welcome back to the Local Progress Federal Advocacy Roundup!
The Supreme Court has been the branch of government churning out the most note-worthy news in Washington these days. Their retrograde decisions this past term on affirmative action, LGTBQ protections, and student debt will have a devastating impact on marginalized communities by rolling back and cutting down critical protections.
The Court’s troubling decisions come amidst rising scrutiny at their internal ethical practices, and for growing calls for court reform, including term limits and court expansion. While the Supreme Court is a largely self-regulating body when it comes to their ethical rules, the limits of that approach are being seriously tested by Justice Samuel Alito’s and Justice Clarence Thomas’s lengthy, documented “connections” to conservative right wing billionaires. Neither Justice disclosed these benefits—which included free trips on a private jet and having a family member’s tuition paid for—nor did they recuse themselves in cases involving the donors. It’s no surprise then that the Supreme Court’s recent decisions, which we’ve summarized below, advance the interests of their right-wing billionaire friends and come at the expense of working people and communities of color.
In June, the Supreme Court rejected affirmative action programs at Harvard and University of North Carolina – Chapel Hill, laying a death blow to race-conscious affirmative action programs at higher-education programs. The 6-3 decision, which reflects the culmination of sixty years of conservative assault on affirmative action programs, broke down along the ideological fault lines of the court.
To reach his decision, Chief Justice John Roberts warped the meaning of landmark racial desegregation cases (such as Brown v. Board of Education) and the 14th Amendment of the U.S. Constitution to erroneously and misleadingly claim that those decisions and constitutional amendments advanced “colorblindness” rather than “race-consciousness.” Liberal justices dispelled this misguided understanding in their dissents.
As devastating as this decision is because it undermines our efforts to build a multiracial democracy, its practical implications on the demographic make-up of higher education are unclear. The Roberts ruling, quite confusingly, said that colleges could sometimes take account of race but only to assess the candidate as an individual: “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise…the student must be treated based on his or her experiences as an individual — not on the basis of race.”
As it stands, the decision does not mean that race-conscious programs in other domains beyond higher-education admission practices (i.e. diversity hiring practices or race-conscious policymaking) are illegal. While those types of programs might represent the next stage of the battle against affirmative action, the decision here only implicates university higher education programs.
In June, the Internal Revenue Service (IRS) released their guidance in regards to the “direct pay” provisions in the Inflation Reduction Act. Advocates are optimistic that this newly available funding mechanism will unleash governmental investment on clean energy projects. For the first time ever, the federal government will be able to direct payments to tax-exempt entities, including local governments, non-profits, and schools, for the full value of tax credits they’re eligible for due to clean energy projects. “Unlike competitive grant and loan programs, in which applicants may not receive an award, direct pay allows entities to get their payment if they meet the requirements for both direct pay and the underlying tax credit.” The Inflation Reduction Act included 12 tax credits that tax-exempt entities are eligible for, including clean electricity through solar, wind, and battery storage projects; installing electric vehicle (EV) charging stations; and purchasing clean vehicles for state or city vehicle fleets. You can find the full list here. For more information, see Direct Pay materials by the Congressional Progressive Caucus Center or this Direct Pay Explainer by Evergreen Action.
In August, Local Progress will be releasing a federal implementation memo that will detail how you can leverage federal dollars to further racial and economic justice.
LGTBQ Protections and Anti-Discrimination Law Significantly Weakened in
303 Creative LLC v. Elenis
This case concerned the right of a wedding web-designer to turn away gay couples under Colorado’s public accommodations law, which states that businesses that choose to serve the public at large cannot turn people away because of their race, sex, religion, sexual orientation or other protected characteristics. The Court, in a 6-3 decision, ruled that the plaintiff had a First Amendment right to refuse since the act of creating a website was “expressive”—an extension of her freedom of speech.
While being classified as “expressive” seems to currently be limited to only businesses that provide custom goods and services, it’s unclear what kind of businesses will be considered sufficiently “expressive” to have the constitutional right to turn away customers on the basis of their sexual orientation, regardless of state and local public accommodation laws.
Biden’s Student Loan Debt Cancellation Plan Struck Down in
Biden v. Nebraska
This case concerned President Biden’s Executive Order on Student Loans. The plan, amongst other things, sought to cancel up to $10,000 – or $20,000 for Pell Grant recipients – for individuals making less than $125,000 a year, a targeted program that had a particularly significant impact on Black and low-income borrowers. When issuing their executive order, the Biden administration connected their authority to the 2002 HEROES Act, which grants the President broad authority to grant relief to student debtors in the event of a national emergency. The scope of that authority was in question in this case. To reach their decision, the Court invoked a murky “major questions” legal doctrine and reasoned that the President lacked the authority to act on such a significant “political question” without clear congressional approval. The liberal justices argued that the HEROES Act did just that, but their arguments were no avail in the face of a 6-3 conservative majority.
Following the Court’s decision, President Biden announced a new student loan debt relief plan. It is similar to the last executive order, but it draws its authority from another statute that was not litigated in this current case—the Higher Education Act of 1965.
Independent State Legislature Theory Rejected in
Moore v. Harper
“The independent state legislature theory” was a fringe legal theory that posited state legislatures could run federal elections in their state without any checks and balances from state courts and governors. “It would give state legislatures wide authority to gerrymander electoral maps and pass voter suppression laws…[and] has even been used as political cover to try to overturn elections.” In recent years, it has moved from the fringe to becoming a popular idea at the center of conservative legal discourse. Court commentators thus expected the conservative Supreme Court to embrace the theory but the Court surprisingly rejected it 6-3, deciding that state legislatures do not have the supreme authority to regulate elections.
As a part of their Protecting Elections Toolkit Elections, Public Citizen assembled a two-page document detailing the different policies local elected officials adopt and advocate for in order to protect election workers from threats. If you are interested in connecting with Public Citizen or learning more about this campaign, don’t hesitate to reach out to us and we can connect you.