Reforming the Electoral Count Act
Amid partisan debates over voting rights, a bipartisan consensus is building around the need to reform the Electoral Count Act. Congress passed this law in 1877 to establish a process for counting electoral votes and resolving electoral disputes. The purpose of the ECA was to avoid repeating the debacle of the disastrous 1876 presidential election in which Republicans and Democrats, in southern states beset by violent voter suppression against Blacks, sent rival electoral certificates to Congress. (The negotiated resolution allowed Republican Rutherford B. Hayes, rather than his Democratic opponent Samuel Tilden, to assume the presidency.)
For over 140 years the Electoral Count Act operated with little fanfare. That changed with the January 6, 2021 insurrection at the U.S. Capitol coupled with Republican demands that then-Vice President Pence subvert the 2020 election by rejecting electoral votes for Joe Biden. (Pence reportedly considered the request but refused.) Fresh concerns about this near-meltdown of American democracy and what it might portend for the future have brought new attention to the ECA, with commentators across the political spectrum calling for a legislative fix. While it remains to be seen what such a process might produce, for now there is guarded optimism that a fix is possible.
Government Regulation of Property Insurance
Government regulation of property insurance usually isn’t thought of as a hot-button issue, but it will be in 2022. In 2021 the US experienced a wave of catastrophes causing immense property damage and loss of life, including epic wildfires in the west, one of the most active hurricane seasons on record, and an unprecedented tornado outbreak in the mid-south. The year 2022 likely will be no different—perhaps worse—as climate change, changes in the physical environment, and other factors magnify the risk of harm to people and their homes and businesses. The primary source of funds for rebuilding after disasters is insurance such as homeowners insurance, and the increasing scale of disasters presents challenges for insurance companies and the government agencies that regulate them. As loss costs have risen and competition for customers has become more intense, insurers have raised premiums, limited coverage, and even dropped policyholders. Those steps have created significant “protection gaps” for homeowners and businesses; lawmakers have responded by mandating coverage and controlling rates. In 2022 we can expect to see more litigation about coverage, intense debates over what kind of regulation should be imposed, the spread of new models of insurance, and efforts to make consumers more knowledgeable about what insurance they need and how to buy it.
The Supreme Court and Environmental Law
One of the biggest legal issues of 2022 will be how far an activist majority of the Supreme Court is willing to go to block the Biden Administration's implementation of its policy priorities. How much will the Court reshape administrative law to advance the majority's policy preferences? The range of possibilities is large. When deciding challenges to regulations, will the Court limit itself to narrow statutory grounds and existing judicial precedent? That might block some regulatory initatives but would not wreak fundamental legal change. Will the Court dispose of the Chevron doctrine, which since the Burger Court and the Reagan Administration has given deference to executive branch interpretations of ambiguous Congressional enactments? That would substantially empower the Court relative to the President, even though Chevron's application has been inconsistent. Will the Court revivify the non-delegation doctrine, which has not been the basis for holding a statute unconstitutional since the New Deal? That could augur the achievement by judicial opinion of what has been impossible to achieve by legislation: the effective repeal of vast swaths of legislation and a major dismantling of the administrative state.
The stakes are high for many substantive areas of law, but perhaps more for environmental law than any other. With no prospect of meaningful Congressional action on climate change, the Court's view of the Administration's efforts will determine whether the United States has any likelihood of meeting its commitments to reduce greenhouse gas emissions. But a host of other environmental laws, including those that protect Americans from air pollution, water pollution, hazardous waste, wetlands destruction, and loss of endangered species -- are at risk.
Military Action in Afghanistan
Following the withdrawal of U.S. ground troops from Afghanistan, President Biden announced that "for the first time in 20 years the United States is not at war. We've turned the page." Yet the Biden Administration has promised to conduct "over the horizon" military strikes into Afghanistan, and to keep U.S. ground forces in northeastern Syria. To defend these operations, the Administration continues to invoke statutes passed in the wake of 9/11 and in the run-up to the Iraq war, roughly twenty years ago. The Administration has also embraced an elastic interpretation of international law, that transforms the right of self-defense into a license for endless war. As U.S. military operations move from the front page to the shadows, the legal basis of these operations remains tenuous at best.
Employee Rights Under the ADA
The COVID-19 pandemic exposed how one person’s rights often conflict with another person’s rights, sometimes with deadly consequences. Individuals with disabilities were especially hit hard at home and work.
Employees with disabilities are entitled to reasonable accommodations by the Americans with Disabilities Act (ADA) to enable them to perform their jobs. But the COVID-19 pandemic—and the Supreme Court’s dogged elevation of religious freedoms over other rights—have furnished employers with new arguments to resist certain workplace accommodations for employees with disabilities.
Just as addressing a pandemic requires a communal response, accommodating an employee with a disability involves employers and often co-workers. The ADA rightfully balances the communal impact of accommodations by enabling employers to deny a reasonable accommodation that would impose an undue hardship on it, including considering how accommodating an employee with a disability would affect other employees.
The pandemic has raised new conflicts. Can a reasonable accommodation for an ADA-covered employee include the requirement that non-disabled co-workers become vaccinated, wear face masks, test for contagious diseases, or take other actions that affect their personal autonomy? How will courts balance the rights of employees who seek disability accommodations with those who seek conflicting religious or personal accommodations? Will labor shortages become a catch-all defense for employers to reject disability accommodations? How courts resolve these conflicts will shape the rights of employees with disabilities in the post-COVID-19 workplace.
Protecting the Rights of Immigrant Children
Thousands of children from El Salvador, Guatemala, Honduras, and Mexico, more than 44,000 in fact, who have been approved for Special Immigrant Juvenile status (SIJS), a form of immigration relief, are still waiting to be able to apply for lawful permanent residence status ("a green card"). The fact that they have been approved for SIJS means that a state court judge and the federal government has found that they have been abused, neglected, and/or abandoned by at least one parent and that it is not in their best interest to return to their country of origin. Yet, without a green card, these children and youth remain at risk of being deported, cannot work lawfully, and are often unable to access medical care and financial assistance for college. All of this is due to how SIJS eligible children are classified under immigration law. In fact, SIJS-eligible children are categorized under the employment-based visa system instead of being afforded a humanitarian status. The upshot is that there is now a 3-5 year wait for SIJS-eligible children from these four countries (and at times India) to be able to apply for a green card. Legislation on this specific issue as well as more general immigration reform legislation, which would include a fix to this problem, is pending. The Biden administration also can do some quick fixes, which would enable SIJS-eligible children to be able to work lawfully and to free them of the risk from deportation. Whether any of this occurs in 2022 remains to be seen, but I will be following it closely.
Barring School Segregation in New Jersey
I believe that there's another important state constitutional issue brewing in NJ. It has to do with the State's commitment to meaningfully enforce the two clauses relating most directly to public education--the thorough and efficient education clause and the clause barring school segregation. There are pending cases regarding both in the state courts, and, in my view, the State's response has been similar--to delay resolution for as long as possible and to proffer constitutional constructions that threaten to undermine longstanding state constitutional jurisprudence.
The most notable cases are:
- The Lakewood case, Alcantra, et al. v. Hespe, et al., which has recently been appealed to the Appellate Division from a final decision by the acting commissioner of education regarding the construction of the T&E clause and the School Funding Reform Act's constitutionality as applied to Lakewood; and
- The Latino Action Network case, LAN, et al. v. State of New Jersey, a challenge to the State's alleged maintenance of a segregated system of public education.
Litigation over Gerrymandering
The US Supreme Court has ruled that there is no federal constitutional remedy for states' hyper-partisan gerrymandering of districts for federal elections. But both the Pennsylvania and North Carolina supreme courts have ruled on gerrymandering under their state constitutions, which often contain provisions on elections that do not appear in the federal Constitution. As the 2022 elections approach, and more states finalize their maps, we can expect more state constitutional litigation over gerrymandering of both federal and state legislative districts.